the US judicial system 

Judiciary and the constitution

Judges are referrers/umpires who see that the game is being played fairly according to the rules and should be scrupulously neutral.

Judges declare that key rights have been infringed- known as common law or judge made law.

The constitution and the judiciary

Article 3 of the constitution= outlines the role and powers of the judiciary – what the founding fathers wanted.

The article states it want it to be independent in the sense of being free from political interference or pressure from the other branches of government and the state.

The constitution shaped the US judiciary system without clearly indicating the nature of the role of judges when political disputes arose. The constitution did NOT specify whether the Supreme Court should be responsible for interpreting the constitution. Matters now resolved and now the judges have dominated US politics to this day.

Article 3 states: the Supreme Court is:

·         The final court of appeal but the congress has the power to establish other, lower federal courts

·         They are not to be elected but appointed

·         President is always responsible to electing the judges but the support of the senate is needed

·         They cannot be removed from office- serve until death or retirement


·         When it was written and then debated there was little debate on the extent of the powers of the Supreme Court suggesting they did not expect it to have substantial powers?

·         When DC was built there was no building for the judges it was met in a basement committee room in congress.

·         So some Americans believe the founding fathers never intended the sureme court to have the power of judicial review (the power of the Supreme Court to declare acts of congress, or actions of the executive-or actions of state governments UNCONSTITUTIONAL and thereby bull or void) and not expect it to grow to the power institution it is today.


IN 189 the Supreme Court made it clear that its powers of judicial review applied to states as well as federal government shown in the case McCulloch vs. Maryland which said it was unconstitutional to impose tax on a bank that has been established by congress. 

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Judges are politicians in disguise

Cases show the court making political decisions and are shown to political if:

·         1970- rule on whether women have a constitutional right to an abortion served to make this issue a more significant political matter

·         Court are political when they serve to establish a new policy that affects everyone in the country, such as the case of Boumediene vs. Bush.

·         A judge carefully tailors their decisions to the anticipated response from the public. E.g. when the court ruled racial segregation to be unconstitutional, the nice justices agreed that despite substantial disagreements between them they would have to deliver a unanimous decision because any disagreements would certainly have been seized upon by segregationists as a rallying point to resist the decision. 

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strict and loose constructionists

Strict constructionists (judges) right- interoperate the constitution in a more literal sense- follow original intent of who wrote the constitution- see themselves as differential/respectful of the elected branches of government. They believe in a small state, with less government intervention- conservatives- power of states contained

Citizens by being right by left- but they say they are being respectful of founding fathers

Loose constructionists (left)- apply constitution in terms of modern day reality or principles, and stressed the broad grants of power to the federal government E.g. constitution needs/will change over time or if founding fathers wrote it today how would it look?

Court is a “co-equal” branch of government and should have just as much powers/ rights as the other 2 branches of government to change things they see fit

More in favour of federal government in power

Loose constructionist- Earl Warren court 1954-69

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Court rulings

Texas vs. warren 1989- ruling left wing activists- Greg lee Johnston- stood outside republican party’s national convention and burnt the American flag- Texas law states he should be imprisoned and charged.

Freedom of speech- is burning the glad like Johnson freedom of speech? – But amendment 10 says all rights not written down in constitution belong to the state- therefore it was a state issue

Brown vs. Board of education 1954- land mark decision of US Supreme Court that declared state laws establishing spate public schools for black and white students unconstitutional- it overturned the Plessey vs. Ferguson decision of 1896 which allow state- sponsored segregation.

Engle vs. Vitale 1962- was landmark US Supreme Court ease that determined that it is unconstitutional for state officials to compose an official school prayer and require its narration in public schools.

Baker vs. Carr 1962- retreated from the courts political question doctrine, deciding that reapportionment (attempts to change the way voting distributes are delineated) issues present questionable questions thus enabling federal courts to intervene in and to decide reapportionment cases

Gideon vs. Wain Wright 1963 – Supreme Court unanimously ruled that state courts are required under the 6th amendment of the constitution to provide counsel in criminal cases for defendants who are unable to afford their own attorneys. 

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The Burger Court 1969-86 – summery

(most important court? Most of information on sheet) Although there were important expectations, the Burger court maintained the warren courts approach to constitutional interpretations. It is remember for rulings such as roe vs. Wade (1973), Furman vs. Georgia (1972) and Swan vs. Charlotte-Mecklenburg of education (1971).

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1986- William Rehnquist

Ronald Ragan was president at this time and was very right wing.

Texas vs. Johnston- liberals happy= as protected against constitution and as it’s not in constitution they are free- conservatives are not happy- not a constitutional right.

Lee vs. Weinstein 1992- said saying prayers at right school graduation was unconstitutional- it got a liberal approval as cons like God- liberal gain.

Reno vs. ACLU 1997- said indecent material on internet is okay- liberal would like this- conservatives against as people could be influenced by bad decisions

2000- Bush vs. Gore- conservatives happy- is the landmark United States Supreme Court decision that effectively resolved the 2000 presidential election in favour of George W. Bush.  The Court ruled that the Florida Supreme Court’s method for recounting ballots was a violation of the Equal Protection Clause of the Fourteenth Amendment. The Court also ruled that no alternative method could be established within the time limits set by the State of Florida

Agostini vs. Felton 1997- said if you were in school and the teacher is funded by federal government you could give extra assistance to church run schools- conservatives were happy- as in favour of god/church. Liberal said was wrong as church and state should be equal.

1997- Clinton vs. Jones- supreme court said president is not immune from civil actions brought by citizens- lead to impeachment- lead liberal being happy as no-one above the law.

1998- Clinton vs. N.Y city- court struck down the line item veto

Kansas vs. Hendricks 1997- conservatives likes this- is a case in which U.S. Supreme Court set forth procedures for the indefinite civil commitment of prisoners convicted of a sex offense whom the state deems dangerous due to a mental abnormality

Planned parenthood of south eaten Pennsylvania vs. Casey 1992- holding essential elements of Roe vs. Wade – BUT states given authority for 24hour wait for those seeking abortion and minors need consent of parent or judge- cons and liberals both happy- give states the power to decide.

Washington vs. Glucksberg 1997- court said euthanasia was no a constitutional right but left the decision to individual states- conservatives were happy

Webster vs. Reproductive health service 1980 court upheld a Missouri state law prohibiting use of public facilities or employees in an abortion.

So does the supreme court have too much power for an unelected body if it can do this ?? 

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Judicial review

is the power of the Supreme Court to declare acts of congress, or actions of the executive-or actions of state governments UNCONSTITUTIONAL and thereby bull or void. Interpreting how the constitution should be applied to specific circumstances or issues congers immense power of whichever group of people carries out that task. Since all laws and government actions, at both federal and state level, have to conform the constitution whoever defines exactly what each provision of the constitution means and how it should be practised pose limits or requirement in every policy maker in the USA.

E.g. during the 1980s the court declared 16 federal and 161 state laws unconstitutional.

As they have the power of judicial review they can interpret what the constitution means to them e.g. decides the meaning on the 8th amendment (1791) which forbids “cruel and unusual punishment” and acts a the guarantor of fundamental civil rights and liberties in the USA (civil rights are positive acts of government designed to protect persons against arbitrary, discrimination, property (civil liberties) by government or individuals. 

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judicial activism and restraint

Judicial activism- an approach to judicial decision –making which holds that a judge should use his or her position to promote desirable social ends- change principles using there initiative.

Judicial restraint- an approach to judicial decision-making which holds that a judge should defer to the legislative and executive branches which are politically accountable to the voters, and should put great stress on the precedents established in pervious court decisions.

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Why is judicial activism/restraint controversial?

(Who likes it/who doesn’t?)

Judicial activism says that federal courts are co-equal branches of government-just as much powers at elected branches

Why would a judge come to that opinion?- they believe minority groups will be oppressed without their power from legislatures/state as the other branches only need majority.

Legislatures are only influenced by views of the majority which leads to discrimination. This approach is allied to liberalism, Warren court and a little bit Burger court- but not clear cut.

In contrast

Judicial restraint emphasises limit upon the judiciary when it comes to influencing policy. In 1936 the Supreme Court interpret a statute law to avoid ruling it unconstitutional even if there was to be serious doubt over the issue- DO NOT TOUCH it/ change it. 


Judges are not elected and constitution states unelected bodies should not make important decisions and due to judge power- minorities led to positive discrimination

CONSERVATIVE ACTIVISM- rolling laws backward or exerting that the state has the power   to decide.

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What is judicial activism/restraint? And why is it

Judicial restraint links to conservatism- judges that seek to avoid making public policy through personal reasons- prefer politicians doing it.

Judges are not elected- should be too powerful- must weigh up legal factors of case and leave it to politicians to decisions on political decisions and if politics is involved it needs to be ran pasted politicians to make sure it’s not outside court room.

If case is political: would look at precedent to keep in order, they are mainly strict constructionists-like founding fathers.

Been controversial?

As court says the constitution must be applied to modern world

The “third rail” issues politicians don’t want to touch- issues like US defence, race sexual discrimination etc- issues a judicial restraint would not touch- bad as shouldn’t worry what voters say

Undemocratic- as constitution doesn’t sat they should avoid it. 

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John Roberts’s court 2005-present- conservative- R

Had 9 justices

4 conservative lock- Scalio, Roberts, Thomas and Elito

5 liberals- Kagen, Bader-Ginsburg, Brayer and Sotomeyer


Minorities too much benefit from it- positive discrimination-0 try move away from this e.g. community schools vs. Seattle school district 2007- restricted school abilities to use measures to achieve or preserve integration- positive sdescrimination0 cutting it back- conservative mark in Roberts court.

North West Austin Municipal district vs. Holder 2009- did not turn over voting right act in 1965- although in judgement said government did not have a justifiable roll in helping minorities getting the vote, said they may overturn this act at a later date.

Ricci vs. Desitanofo- ruled that a fire-department discriminated against white fire fighters when it didn’t promote as no racial minorities applied for the job- court said not fair.

Abortion vs. Carhart (2007)- court said would uphold a law on a procedure use late in pregnancy- abortion now harder-bigger challenge to roe vs. wade.

Campaign finance

Law- bipartisan campaign act 2002- put a cap on money that can be funded on president campaigning- conservatives against law as say should have a much as possible/as they like.

FEC vs. Wisconsin 2007- court struck down provisions of 2002 law- took away some previsions on funding.

Criminal justice

Conservatives- said not in good shape in last 10/20 years – Miranda vs. Arizona

Reta vs. USA 2007- made more difficult for defendants to challenge a sentence on grounds on whether it was reasonable or not- cant argue against decisions made- conservative movement. 

Uttecht vs. Brown 2007- made easier for prosecutors to remove an individual from a jury if the individual expressed doubt from death-penalty- increased chances of death penalty.

Access to the court

2007- Ledbetter vs. Goodyear- made it harsher for employees to bring discrimination cases against its employer-based on racial/sexual discrimination.

Bowles vs. Russell- 2007- someone given wrong date and missed trail/court case- cannot defend their position and found guilty.


District Columbia vs. Heller- said state of Washington acted unconstitutionally by attempting to place restriction on purchase and possession of weapons- upheld 2nd amendment- conservatives love guns.

Roberts court- conservative leaning but also quite liberal- e.g. like Guantamino bay- given protection and rights of USA.

2004- Russell vs. Bush, Hanne vs. Reinstall2004, 2008 Boumediene vs. Bush- all ruled policies on Guantamino were unconstitutional- liberal for Roberts.

Kennedy vs. Louisiana- 2008- struck down all state laws that gave death penalty to all child-******-liberals happy/conservatives unhappy

Caperton vs. AT Massey Coal Company 2009- ruled that state judges (not federal) that had been elected to post, could not rule on a case that involved people making a substantial donation to his/her electoral campaign. 

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