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1) theoretically--
"What do the theories say about the judicial system?"
2) empirically--
"What have social scientists discovered about the judicial system?
What can we discover about the courts via MicroCase?"
3) comparatively-- "What
are the courts like in other parts of the world?"
Theoretically
elite theory
The courts are the final defenders of
the elite political system. They are dominated by elites and
thus reflect elite interests and elite values.
plural
theory The
courts are part of the system of bargaining, accommodation and
compromise at the heart of the plural political system. Their
emphasis upon "the law" and their adversarial
nature emphasize a pluralist approach to adjudicatory questions.
democratic theory
The courts system is set up to adjudicate disputes (ie.,
to resolve conflict). They are impartial arbiters set up to
determine whether actions fall "inside or outside of the law".
For all of these theories (or for
political systems), the judicial system is designed to:
1) resolve conflicts within through rule
interpretation; 2) generate support
for the political system; and 3) create
feelings of legitimacy for the political
system.
This is often a "tricky proposition" since the
resolving of most disputes generally makes some feel like winners and
others losers.
The decisions can have significant impacts when they
seriously challenge the power of those "in power"!
If the courts continually support
"those who govern" the court is then viewed as nothing more
than "another arm" of the rulers.
Empirically
What evidence can be examined to test
the competing theories? Possible evidence
to explore:
Is there a "gender bias" in the Supreme Court? A
regional bias? Other biases? How much do
Americans know about the Supreme Court or the court system in general?
Historically, how much confidence have Americans had in
the Supreme Court? What can we learn from MicroCase?
The courts primary function is that of adjudication
Adjudication
the term refers to
the process of determining whether something falls inside or outside of
the law.
Some argue it is (or
should be a "neutral process)"!
After all the
law is the law is the law, correct?
Well that is often
the question!
When Congress makes laws it does not
make specific statements
which handle every situation. In much the same way that the
Constitution's creators could not foresee every circumstance. Should
every situation be referred back to the legislature for clarification/
decision?
Or should courts make such adjudicatory decisions?
In day to day matters courts routinely
determine what falls
inside or outside of the law.
In special cases, the Supreme Court has claimed the ability
to determine whether actions are "constitutional"/ legal.
Do you remember the name of the case?
History of
Supreme Court Decisions
While many associate the Supreme Court with
"liberal" rulings, its general history has been one of
protecting property from legislative or executive action. After
the Supreme Court establishes the power of "judicial review"
in Marbury v. Madison, the Court, for
most of its history, has been viewed as a protector of the interests of
states (until the 1860s) and business (1870s-1930s) rather than a
protector of the interests of individuals.
In a number of cases during these times the
Court had either ruled it a state decision on whether to allow slavery
or protected the interests of business over the rights of workers,
consumers or the general public. Indeed the economic recovery
measures designed by FDR were ruled "unconstitutional"
until "the switch in time that saved
nine" (The "court-packing" threat of 1937).
In the 1950s, under Chief Justice
Earl Warren, the Court began to expand and protect the rights of
individuals and minority groups. These included expanded rights
for the accused, rights to free speech, etc. Many argued that this
activist role was one which the Court should not play. Others
argued that the Court was the only place where fundamental policy change
could occur in an American political system dominated by entrenched
interests. Many argue that the Court has returned to its former
(some would argue "proper") role!
The "Law"
What is law?
S.C. Justice:
"The law is whatever we say it is".
S.C. Justice:
"I can't tell you what pornography is but I know it when I see
it"
S.C. Justice:
"Freedom of speech does not give one the right to yell fire in a
crowded theater"
S.C. Justice:
"The Constitution says what the judges say it says"
If law is merely statute then laws can
change.
Indeed, one of the interesting aspects of a democracy is the idea that
laws can be changed through the political process. What is illegal
at one point in time may be perfectly legal at another point in time!
How can something so
changeable be respected?
What is the current
nature of the American legal system?
The Culture of American Law
1) glorification of the legal
system
2) constitutionalism
3)
overcriminalization
4) reliance on the
Supreme Court to make controversial decisions
The
Court System
The basic court system is composed of:
94 District Courts
currently from
1 to 27 judges per district for a total of 404 judges
most cases are heard by a single judge about
150,000 cases are filed (100,000 civil and 50,000 criminal) every year
about 10,000 civil and 7,500 criminal cases are actually tried
13 Courts of Appeal
normally composed of a rotating panel of three judges
court normally hears about one-third of cases brought up on appeal (75%
of convictions are appealed)
normally reaffirm lower court decisions
1 Supreme Court
Constitution does not set the number of justices
cases normally brought up because of:
1) original jurisdiction (spelled out in Art III)--very few
2) appellate jurisdiction (appeal or writ of certiorari:
a) by state court when ruling favorable to federal government
b) when Court of Appeals believes a constitutional question is raised by
a case
Qualifications for Appointment
to the Supreme Court
1) legal training
2) high socio-economic status
3) political involvement
Do these qualifications sound familiar?
Procedures
1) written (amicus curiae) briefs
2) oral arguments
3) conference
Methods of
Constitutional Ineterpretation
1) the literal meaning
the Constitution
means what it says there
is no room for interpretation or contextualization
2) the intent of the framers
what we need to do is
to try to understand what the intent of the framers of the Constitution
was to try to fit contemporary issues into the timeless framework
ie., what is a high crime and
misdemeanor?
3) need
what justices should do is to make
decisions that are necessary for the time
Comparatively
Most other countries do not allow its court
a power similar to that of "judicial review" as a result those
courts do not have the ability to prohibit actions of their legislative
and executive agents.
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