This week we begin our look at the judiciary and follow the same format we used to look at both the legislative and executive branches.
The Judiciary - Definition and Historical Background
We begin by looking at what the term "judiciary" means and noting a handful of facts about the judicial branch. As with the previous sections, this is to give us some context that should allow for the rest of this week's material to make more sense. At its simplest, the judiciary provides a place where disputes can be reconciled. The judiciary adjudicates disputes. These disputes can involve a variety of things. They can involve a question of guilt or of procedure, or of a violation of criminal law or a civil dispute, or of a violation of national law or state law.
The historical look at the judiciary makes the same point as the similar section that covered the legislature - the development of an independent judiciary separate from the executive branch. As we know, at one point the executive (the monarch) performed all governing functions. Control over the courts was a mechanism for controlling the kingdom, but the British Bill of Rights criticizes past monarchs for controlling the courts and establishes the principle of judicial independence. One of the grievances in the Declaration of Independence was that this principle had been violated and the king was making judges dependent on him for their offices, which meant that the executive controlled the judiciary, which violates the principle of separated powers.
The historical look at the judiciary also outlines - very briefly - the development of common law. Definitions of common law vary, but it can be understood as the codification of the individual decisions made judges in similar types of disputes. This provides the basis of legal decision making to this day. And the historical look at the judicial branch also looks at the gradual development of due process, the idea that court procedures have to follow a specific process in order to best ensure that justice is served. Looking at each of these helps us appreciate the role of precedence in judicial processes.
This sets us up for a look at Article 3 of the US Constitution.
The US Judiciary - Constitutional Design
Here we simply walk through the Article 3 of the US Constitution and note its content, and its brevity. It is very short and makes no mention of the court's principle power - judicial review. We will discuss the reasons why. The section walks through the basic design of the federal judiciary and how it overlays the state courts. We will look more thoroughly at the nomination and confirmation process and the pros and cons of life-time service for justices.
As with the previous sections - we will try to tie in the language in this section with the history covered in the previous sections.
Judicial Review and the Supreme Court
In this final section we look at the principal power held by the federal courts - the power of judicial review. We also look at how it is applied over time. But the major story will be how it was acquired by the court and how this reflects the political nature of the court - this despite the fact that the court, since judges and justices are appointed and serve for life - are supposed to be removed from politics. We look at the factors involved in establishing the power of judicial review and how the use of the power changes depending on the specific composition of the court.
Since judges serve for life, the federal courts - and the Supreme Court specifically - are composed of people who have been appointed by a variety of presidents going back some time. Each is a type of time capsule reflecting the politics that existed at the time of the appointment. Since the composition of the court changes slowly over time, the tendency of the courts to apply judicial review to particular cases changes as well. We will try to come to terms with the nature of these changes since it a key component of the checks and balances.
Good luck.
