I originally though we would cover these in the first week of class, but we didn't.
We will look at these in week four.
1 – What is the role of the court in the system of separated powers?
This is not clearly stated in the constitution – what does “the judicial power” mean?
- the vesting clauses
What is the purpose of the separation of powers?
- Fed 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”
How is it established?
- each institution has “a will of its own”
- - unique modes of appointment
- - unique terms of office
How is it maintained?
- Fed 51: ambition counteracts ambition
- the checks and balances
2 – Why does the judiciary have the power of judicial review?
Some system of judicial review was considered necessary.
- Federalist 78: The U.S. Constitution is a limited constitution, but limitations can only be maintained if there is a way that the violations of limits can be negated. That is the purpose of judicial review.
But why is judicial review not mentioned in the Constitution?
- Concerns over abuse
- Councils of Revision
Judicial review should be given to the courts for at least a few reasons
- it involves interpretation of the law, which is what the judiciary does anyway
- the judiciary is the weakest of the branches which means two things:
- - that it cannot use the power of judicial review to dominate the other branches
- - it needs to be able to protect itself from the other two branches
- - - the judiciary can become dangerous if it is controlled by either of the other two branches.
Judicial review is the reason the courts the courts have any strength at all
How was the power acquired? Marbury v. Madison – which will be discussed later
3 – If there is a conflict between constitutional law and statutory law, why does the former win out?
Again, Fed 78: Statutory law must not violate constitutional law, but why does constitutional law take precedence?
- constitutional law reflects the will of the people since it went through the ratification process.
- statutory law reflects the will of the representatives of the people
4 – What is the process cases take on the way to the court?
Key Point: The Supreme Court reacts to cases brought before it.
First, let’s think about how judicial procedure. How do cases make it to the Supreme Court?
- Trial: First step – matter of facts and evidence
- - civil or criminal
- - local, state or national
- - - test cases
- Appeals: Second step – matter of procedure
- - state
- - federal
- The Supreme Court
- - Writ of certiorari
- - Rule of Four: roughly 10,000 cases are appealed to the Supreme Court each year. Recently the court has heard roughly 75 or so. Often these cases involve conflicts over constitutional interpretation.
- legal briefs submitted
- - petitioner / respondent
- - amici
- - - precedence
- - - stare decisis
- oral arguments
- vote in conference
- written opinions
- - majority or plurality
- - concurrence
- - dissent
5 – How do Supreme Court justices apply the constitution? How do they interpret the document?
Two basic approaches:
- originalism
- non originalism
Related approaches:
- Strict Construction – The Constitution was written with a narrowly defined meaning that needs to be adhered to, unless the meaning is changed by the amendment process.
- Loose Construction – The Constitution was written in loose terms with the idea that these terms could be reinterpreted to apply to the changing circumstances of society.
More specific:
- original intent
- textualism
- the living constitution
Also: Judicial activism vs Judicial Restraint
6 – What determines which interpretative style wins out?
- the composition of the court
- which presidents have been able to appoint people to the court
- a word or two on the Roberts Court.
