Unit 2 - Judicial Branch

Question 1

Explain why judicial review makes the judicial branch so powerful

Judicial Review

Answer 1

Allows it to check the other branches (mainly Congress) and states

ex. Fairbank v. United States (struck down law that put tax of exports)

Question 2

Explain the strick constructionalist/judicial restraint approach to judicial review.

Judicial Review

Answer 2

Justices must follow the constitution strictly and literally (so that they wouldn’t take advantage of it)

Dobbs v. Jackson used this view as part of the reaosn to reverse Roe

Question 3

Explain the activist approach to judicial review

Judicial Review

Answer 3

Justices should be able to interpret the constitution freely, and apply it’s principles to each case

Roe applied the 14th amen. right to liberty to also include privacy

Question 4

Describe what the founders expected the federal courts to be like

Development of courts

Answer 4

• inactive, neutral, passive in politics (so they wouldn’t be making policies)
• only limit Congress, wouldn’t have their own power

Question 5

What was the impact of the 1st era of judicial development?

Development of courts

Answer 5

• increased judicial branch’s involvement in politics (judicial review)
• helped build up the nation and made it legitimate (national gov > state, including no more slavery)

Marbury v. Madison, the elastic clause with McCulloch v. MD (bank)

Question 6

What was the impact of the 2nd era of judicial development?

Development of courts

Answer 6

Increased judicial activism (restricted gov power in the economy by striking down many of it’s regulations unless they benefited public interest)

ex. Struck down regulations on child labor

Question 7

What was the impact of the 3rd era of judicial development?

Development of courts

Answer 7

• increased judicial activism (protected personal liberties)
• Jud branch became source of support for the people

Justices slowly began liking Roosevelt’s New Deal (pro-ppl)

Question 8

Differentiate between constitutional and legislative courts

Structure of courts

Answer 8

• Constitutional = made by article III of constitution (life long terms, constant salary)
• Legislative = made by Congress for special purposes (fixed terms, can be fired, changable salary)

Const - distrcit, appellate, SCOTUS. Leg - ex. Military Courts

Question 9

Selecting Judges affects the composition of courts, so what is…

Senatorial Courtesy

Structure of courts

Answer 9

Appointees must be liked by the senator of their state or else aren’t chosen

when voting, senators would put a negative blue slip to show disapproval

Question 10

Selecting Judges affects the composition of courts, so what is…

Litmus test

Has been inaccurate because of ideological drift

Structure of courts

Answer 10

Testing the opinion of potential nominees to make sure they align with the president’s ideology

Ex. asking nominees their stance on abortion or Roe v. Wade

Question 11

What is the Ginsburg Rule?

“Don’t get Borked!”

Structure of courts

Answer 11

Judicial nominees try their best to not hint at their ideology (aka how they’ll rule on cases) because they likely won’t get hired (opp party/ideology won’t hire them, like Bork)

Question 12

What type of cases are fed jurisdiction vs. state jurisdiciton?

Jurisdiction of courts

Answer 12

Fed: questions about federal gov, cases involving multiple states (their citizens specifically)
State: everything else

Question 13

What is dual sovereignty of state and federal courts?

Jurisdiction of courts

Answer 13

Idea that a person can be convicted in both state and/or federal courts for the same crime

Question 14

Why is dual sovereignty a thing?

Jurisdiction of courts

Answer 14

1. Since the fed and state have their own laws, they are allowed to have their own trials and prosecutions
2. The more layers of trials and prosecutions, the more likely justice is served to those who need it

Ex. Lynchers avoided prosecution in southern states but not fed court

Question 15

List 4 criterias for SCOTUS to grant cert.

Getting to court

Answer 15

1. conflict among the lower fed courts
2. very important cases (unusual [like Watergate], big political/social impact [like Brown v. Board], legal significance [change in legal procedure])
3. justices are interested in the topic
4. very clear legal errors made by lower courts

Question 16

How does in forma pauperis help make getting to court easier?

Getting to court

Answer 16

Allows poor people to sue for free (removes fees and money barrier to getting justice)

Question 17

How do interest groups make getting to court easier?

Getting to court

Answer 17

1. can provide you a lawyer if you can’t afford one
2. can organize entire cases (you can be plantiff to fight for their goal)

Question 18

How does fee shifting make getting to court easier?

Getting to court

Answer 18

If you win a suit, you can make your opponent pay for your fees
- removes financial barrier

SCOTUS has limited this to only situations Congress approves

Question 19

Explain how needing standing may make going to court harder

Getting to court

Answer 19

• must reach requirements (standing) to be able to sue

Need real conflict, real harm done by law, and can’t just be taxpayer

Question 20

Explain how Congress and the Courts have made getting standing easier

Getting to court

Answer 20

Congress/Courts have given sovereign authority to most situations (consented to be sued) = you have standing to sue fed gov in most cases

Question 21

List the benefits of Class Action Suits

Hard to do nat. b/c SCOTUS requires u notify everyone if $ involved

Getting to court

Answer 21

1. sweeping change (b/c it applys to anyone in similar situation)
2. fix issues that Congress won’t
3. Easier to get lawyers (b/c they get paid more since the defendant has to pay damages to the “entire class” of people, lawyers get a portion of it.)

ex. Brown is an example of a class action suit

Question 22

What is the legal process of cases that SCOTUS deals with?

SCOTUS in action

Answer 22

1. case gets writ of cert
2. have to give brief
3. give oral arguments
4. SCOTUS gives decision

Question 23

Side note:

What are the duties of the Solicitor General?

SCOTUS in action

Answer 23

1. lawyer for the federal government in cases where it’s a party
2. decides which cases the federal government will appeal

Question 24

Step 2 of process, briefing the court…

What is a brief?

SCOTUS in action

Answer 24

Info dump of the case
- facts of the case
- decisions by lower courts
- your argument
- other SCOTUS cases that could be relevant

Question 25

Step 2 of process, briefing the court…

What is an Amicus Curiae ?

SCOTUS in action

Answer 25

Brief by interested but not involved party, help supply arguments to back up court’s decision (if it agrees with it)

Usually organizations showing which side they support

Question 26

Step 4 of process, decision…

What is a per curiam opinion?

SCOTUS in action

Answer 26

a brief, unsigned decision by the court

Usually for unanimous / non-controversial cases

Question 27

Step 4 of process, decision…

What is the opinion of the court?

SCOTUS in action

Answer 27

reasoning behind the majority’s decision

“This is our decision and here’s why…”

Question 28

Step 4 of process, decision…

What is a concurring opinion?

SCOTUS in action

Answer 28

opinion of judges that agree with the decision but for different reasons

“I agree but it’s cuz….”

Question 29

Step 4 of process, decision…

What is a dissenting opinion?

SCOTUS in action

Answer 29

reasoning of judge(s) that disagree with the decision

“I disagree with the majority (support other party) because…”

Question 30

SCOTUS usually doesn’t make new policies but…

How does the court make policy?

Power of court

Answer 30

1. by reinterpreting const/laws in big ways
2. by changing a law’s scope (shortening or extending it’s reach)
3. by solving issues using legislative or administrative powers

Question 31

Measuring the court’s power…

How does the number of laws struck down by SCOTUS show it’s power?

Power of court

Answer 31

More cases it strikes down, more power it has since it is checking Congress

Question 32

Measuring the court’s power…

How does the length of a case’s precendence (stare decisis, how long it’s been valid, aka not overturned) show the court’s power?

Stare decisis = rule that new cases must follow old case decision

Power of court

Answer 32

The longer a case stays a precedent, the more power the court has (since it’s decisions were good and stayed for a long time)

Roe being overturned shows a weak court (argument was flimsy)

Question 33

Measuring the court’s power…

How does the court dealing with more legislative political questions show it’s power?

Political question = issue that’s Congress’s business

Power of court

Answer 33

Using legislative power (policy making) to deal with political questions = stronger court since it’s being an activist by doing so

Question 34

Measuring the court’s power…

How does the scope of court remedies show the court’s power?

remedies = judicial order that says what should be done to fix issue

Power of court

Answer 34

Bigger scope of remedies (apply to groups instead of just individuals) = court’s have more impact on people, aka more power

Question 35

Why is court power a good thing (court activism)?

Power of court

Answer 35

It allows court to right wrongs when other branches don’t (ex. Brown v. Board)

Question 36

Why is court power (activism) a bad thing?

Power of court

Answer 36

1. Judges aren’t experts on issues so decisions aren’t helpful and difficult to implement (imagine trying to find a solution to cancer when you’re not a scientist)
2. The people can’t check the court’s power when it oversteps since it’s appointed rather then elected

Question 37

What is the cause of increased activism (more power)?

Power of court

Answer 37

an increased access to the court (ez for ppl to go to court = more cases = more oppurtunities for court be make policies, aka be activists, aka use power)

Question 38

How does Congress being vague give the court more power?

Power of court

Answer 38

Allows the court to interpret freely –> make sweeping remedies (decisions on what must be done)

Question 39

How is the nature of the court a check on it’s power?

Checks on power

Answer 39

It does not have a way to enforce it’s rulings (need executive branch for that), so it’s decisions can kinda be ignored

kinda = if it’s obvious you’re going against court, then no

Question 40

Congress’s checks…

How is Congress’s ability to appoint and impeach a check on judicial power?

Checks on power

Answer 40

Can choose who’s on court and therefore how it behaves
- can slowly appoint different people that will behave how Cong wants them to
- can impeach justices behaving unlike how Cong wants (ideological drift)

but impeachment can’t just be b/c Cong dislikes court’s policy

Question 41

Congress’s checks…

How is Congress’s ability to change the size of the court a check on it’s power?

Checks on power

Answer 41

A bigger court = more slots = more people Cong can appoint = more likely court will behave how it wants

Question 42

Congress’s checks…

How is Congress (and states) ability to amend the Constitution a check on judicial power?

Checks on power

Answer 42

It can avoid Court’s decisions by changing the part of the constitution it used as it’s basis for it’s opinion

Question 43

CONGRESS’S BIGGEST CHECK…

How does Congress’s ability to decide the courts’ jurisdiction a check on their powers?

Checks on power

Answer 43

If Congress rules that the court can’t decide on certain issues, then it can entirely avoid being challanged by the Court

threat of this is a check in itself

Question 44

Public’s check…

How is the public’s opinion of the courts a check on their powers?

Checks on power

Answer 44

Since the court can’t enforce their rulings, if the people dislike the court and their decision, they can ignore it, the court looses it’s power since it’s no longer legitimate

Question 45

Public’s opinion

How is the public’s opinion on what the government should be involved in a check on judicial power?

Checks on power

Answer 45

Court can only rule on what people think it should rule on, or else it’ll be ignored (b/c power isn’t legitimate)