Worksheet: Chapter 16 – The Judiciary

1. / After reading Hamilton’s Federalist No. 78, summarize what he says about the strength of the judiciary and the relationship between the judicial and legislative branches. Why is it so important that the judicial branch be independent? How is it best to maintain that independence? You may make these notes on a separate piece of paper or as detailed margin notes. Do whatever suits you best.
2. / After reading Brutus’s essays list and summarize his arguments criticizing how the judiciary is structured in the Constitution. You may make these notes on a separate piece of paper or as detailed margin notes. Do whatever suits you best.
3. / Explain what the book says about why the judicial nomination process has changed since 1985. What is a blue slip?
4. / Define judicial review. Make sure you memorize the case, Marbury v. Madison.
5. / Summarize the two approaches to using the Constitution to decide cases.
6. / The book discusses three main stages in the evolution of today’s Supreme Court. Give brief generalizations that summarize the main issues of each of these three stages.
7. / Summarize the information on the Warren, Burger, and Rehnquist courts from the handout
8. / Define: district court, courts of appeals, senatorial courtesy, blue slips, and litmus tests. Explain why litmus tests have grown in importance.
9. / What does it mean to say that our system is a dual court system? Explain how our dual court system works.
10. / Look at the chart on page 451 and find a way to commit to memory the path that a case takes to get to the Supreme Court. Define writ of certiorari and summarize when the Supreme Court is likely to grant cert.
11. / List and understand the ten reasons why David Yalof says that the modern selection process for justices has changed.
12. / After having read the handout on Judicial Selection and on Wikipedia about the nominations and confirmations of recent Supreme Court nominees, summarize the role of politics and interest groups in judicial nominations. Give examples.
13. / Summarize rules governing standing.
14. / Explain what a class action suit is. What are the pros and cons of having class action suits?
15. / As you read the O’Brien article, summarize in your own words how the Supreme Court makes policy and the relationship of the Supreme Court with public opinion.
16. / Define brief, amicus curiae, Solicitor General, per curiam opinion, opinion of the Court, concurring opinion, dissenting opinion.
17. / Define stare decisis. Bring 3 cases to class from the Civil Rights and Liberties unit when the Supreme Court overturned itself.
18. / The book discuses four indicators/measures of how courts have become more powerful. Explain what these four measures are.
19. / What arguments does the book present in favor of and against judicial activism?
20. / What explanations does the book give for why we have activist courts?
21. / List and explain the checks on judicial power from both the other branches of government and public opinion.
22. / Summarize what Rehnquist says about how a case is granted certiorari.
23. / Outline the steps in decision-making that Brennan discusses.

Terms to Know

1. / Judicial review / 21. / Robert Bork / 40. / Class action suit
2. / Strict constructionist / 22. / Antonin Scalia / 41. / Law clerks
3. / Judicial activist / 23. / Clarence Thomas / 42. / Briefs
4. / Federalist No. 78, Brutus essays / 24. / David Souter / 43. / Amicus curiae
5. / Marbury v. Madison (1803) / 25. / Ruth Bader Ginsburg / 44. / Solicitor General
6. / John Marshall / 26. / Warren Court / 45. / per curiam opinion
7. / McCulloch v. Maryland (1819) / 27. / Burger Court / 46. / Opinion of the Court
8. / Gibbons v. Ogden (1824) / 28. / Rehnquist Court / 47. / Concurring opinion
9. / Dred Scott v. Sanford (1857) / 29. / Dual Court System / 48. / Dissenting opinion
10. / Roger B. Taney / 30. / Federal-question cases / 49. / Stare decisis
11. / Court packing plan / 31. / Civil law / 50. / Political question
12. / Constitutional court / 32. / Criminal law / 51. / Remedy
13. / District court / 33. / Dual sovereignty / 52. / Court order
14. / Courts of Appeals / 34. / Writ of certiorari / 53. / Appellate jurisdiction
15. / Legislative courts / 35. / In forma pauperis / 54. / Concurrent jurisdiction
16. / Senatorial courtesy / 36. / Fee shifting / 55. / Exclusive jurisdiction
17. / Blue Slips / 37. / Plaintiff / 56. / Original jurisdiction
18. / Litmus test / 38. / Defendant
19. / Gang of 14 / 39. / Standing
20. / William Rehnquist

Questions and Themes

Original jurisdiction: 1 part a state, 2 states, ambassador

Appellate jurisdiction

Plea bargain

Senatorial courtesy/Blue slip – political elements of judicial nominations

Debates over judicial ideology: judicial activism/loose construction/moral reading of the Constitution/Living Constitution vs. Judicial restraint/originalism/textualism

Outline history of Supreme Court: John Marshall, Warren Court, changes today

Other courts with a path to the SC – when federal courts have jurisdiction

Rule of four, Writ of certiorari

Reasons for hearing a case – how the SC selects caseload

Role of the Solicitor General

How Congress can try to influence Court: budget, salaries, remove appellate jurisdiction, control number of justices on Court, approval of nominations, revise statue, amendment

Litigant, plaintiff, defendant

Standing, Class action suits

Dual court system – what does that mean?

Criteria president uses in selecting nominations: party affiliation, acceptability to Senate, Judicial experience, race and sex, litmus test

The politics surrounding judicial nominations

The role of an Amicus curiae brief

Opinions: majority, dissenting, concurring

How Courts set public policy: remedies (e.g. running schools or prisons, or ordering increased funding for schools), Structural remedies

Reasons for a policy role for courts: level the playing field, protect against tyranny of the majority

Reasons against a policy role for the courts: not elected, if swayed by political or social considerations – not standard, just inserting their own opinions

How courts depend on the other two branches