1. Supreme Court

2. National Government Institutions The Supreme Court

3. Political Scientists v. Legal Scholars Emphasis on the “politics” of courts– “who get what, when, where, and how” Less emphasis on what the law means, what it is– more emphasis on its impact beyond the courts Expands understanding of how the legal system works to include social theories. Does not study the practice of law, but how that practice effects society and politics

5. Two ways of understanding the strength of the Court Method I The Supreme Court is the most powerful branch because of the durability of its decisions The countermajoritarian problem seriously impedes full democracy. Method II The system of checks and balances and separation of powers effectively leaves the Court as the weakest branch. The countermajoritarian problem is not a problem for democracy.

6. Method I- Taft was the only U.S. president to also be on the Supreme Court. “Presidents come and go, but the Supreme Court goes on forever.” -- President William Howard Taft

7. Method II- exemplified by the Founding Father, Alexander Hamilton in his defense of the Constitution and the Supreme Court “The judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them … The judiciary … has no influence over either the sword or the purse, no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.” —Alexander Hamilton, Federalist 78

8. Structures: Power and Constraint Power Discretion in agenda setting Insulation from other branches Judicial review Constraint Cases must come to the Court Congressional and presidential “checks” No enforcement power

9. Power Provide incentives or disincentives for action/ behavior by use of remedies Develop policy through statutory interpretations and constitutional decisions Constraint Limited by law in providing remedies Congress can change the law; clarify intent

10. Judicial Review Power to render legislative and executive actions unconstitutional Marbury v. Madison (1803) Marbury is denied a commission to be a justice of the peace. “It is empathetically the province and duty of the Judicial Department to say what the law is.” – Chief Justice John Marshall

11. Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30. Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.

12. Court Process Petition for a writ of certiorari Conference and vote Briefs filed Oral Arguments Conference and vote Opinion writing Announce decision

13. Collective action problems Granting Certiorari– How does the Court come to agreement on 100-150 cases to consider out of the 2,000-8,000 petitions filed each year (number varies by year and type)? The Rule of Four– Four justices agree to hear the case, the case is taken up by the Court This is an example of the institutions principle. Exceptions– If one justice is vehemently opposed, usually the others will go along.

14. Collective action problems Granting Certiorari The Rule of Four Exceptions? Opinion writing- Want to get enough justices to sign on to make a majority rather than a plurality opinion. The more justices signing onto an opinion, the stronger the precedent. 9-0 with no concurring opinions sends the strongest message. Answer: Strategic opinion writing.

15. In most cases, the Supreme Court issues a majority opinion that is controlling. In rare instances, no majority may emerge and justices write a plurality opinion. Justices who disagree with the judgment of the majority often offer a dissenting opinion. Those who agree with the ultimate conclusion but for different reasons might write a concurring opinion.

16. Strategic opinion writing Goal: Get as many justices as possible to sign on Reason: Strengthen precedent How: strategic opinion writing Rather than writing what is the correct interpretation, justices modify decisions to be more acceptable to others. Example: The development of heightened scrutiny in Craig v. Boren (1976) Brennan believes sex discrimination deserves strict scrutiny, but cannot get a majority to agree. Instead develops a new middle standard, heightened scrutiny as a compromise.

17. Court’s legitimacy depends on Constitution Public perception of neutrality Blind justice Staying within the bounds of statutes BUT…

18. Models of decision-making Attitudinal Legal Societal

19. Attitudinal Model Personal preference and values of judges drive decision-making Charges of judicial activism often have this assumption Many social scientists find solid evidence in support

20. Correct? In practice, constraint on Supreme Court by other branches is limited Life Tenure= Job stability Difficulty of overturning decisions Statutory– difficult to get Congress to pass laws Constitutional- amendments even tougher Who could resist?

21. How else can ambiguity be resolved? Unclear precedent invites? Scalia’s critique of “totality of the circumstances”– he argues Court should avoid case by case analysis and come up with clear rules instead. EVIDENCE: Dissenting justices DON’T normally change votes in future cases. EVIDENCE: Congress’ threat to break up the traditionally liberal 9th Circuit.

23. Legal Model Legal procedure drives decision-making How the law community thinks about judicial decision-making Textual meanings authors’ intent and originalism Stare decisis

24. Correct? Often language is clear Use of documents to support intent claims Judicial intervention comes in very small numbers.

25. Source: David M. O’Brien, Storm Center: The Supreme Court in American Politics, 6th ed. (New York: Norton, 2003), p. 30. Note: Figures represent the number of congressional acts and state laws overturned divided by the number of years of each Chief Justice’s tenure. Note that the figures for the Rehnquist Court only include up to 2001.

26. Correct? Often language is clear Use of documents to support intent claims Judicial intervention comes in very small numbers. Most precedent is not overturned Precedent is the main focus of briefs and oral arguments

27. Societal Model Justices are part of a broader culture in which they are embedded and this effects how justices make decisions

28. Correct? Court tracks public opinion in decision making, but often is lagged by several years. Decisions are not outlandish by contemporary standards. Premise closely related to attitudinal model– how else are preference created? Appointment and confirmation are made by people who rely on public support.