PS 102 Lecture 8 The Judiciary


hi everyone so for this lecture video
we’re going to be going over the federal judiciary our third branch of government
before we do that just as your reminder there’s going to be five attendance
questions embedded within this lecture video so be sure you answer those
questions and send me your answers via email all right so for this week we’re
going over our federal judiciary let’s go to our picture of the day so our
judiciary was set up to be an impartial body or at least more insulated from
outside political groups in order to faithfully ensure that our government
and its people abide by the tenets of our US Constitution and the symbol of
this here representing that is the blind lady of Justice right she is blind to
factional interest and in this way she could uphold the laws fairly and justly
as is represented here by the balance scale to interpret the Constitution as
it should be interpreted not based upon how people want to interpret it so in
today’s class we’re going to look at how our federal judiciary was set up to
allow for this impartiality and with that here the goals for today’s lecture
will first go over the powers of our judiciary looking at the powers of
judicial review and judicial supremacy from then we’re going to look at how our
Supreme Court is structured looking at the characteristics that the Supreme
Court and will look at the judiciary as a whole looking to see how it’s set up
in this hierarchical way and then from there we’re going to
finish looking at one of the controversies of our Supreme Court that
being is controversy over judicial supremacy so with that let’s go and get
started looking at a definition of our judiciary
here it is the judiciary is the branch of government that is charged with the
interpretation of our Constitution and with the administration of justice so it
has two different responsibilities one it interprets our Constitution
determining what our Constitution says and second it deals with the
administration of justice making sure that people are correctly punished if
and when they’re found guilty for violating the law making sure justice is
served and what I want to do is delve more deeply into these responsibilities
of our judiciary by looking at the powers of our judiciary and the issues
that our judiciary has the authority to make political decisions on on behalf of
the people and these first two powers we’ll discuss are going to deal with
their administration of justice to make sure justice is served if and
when someone has violated the laws so the first power of our judiciary is
the power to determine who violates the laws that is to say if an individual is
charged with the crime then it’s the judiciary who determines if you are
found guilty or not guilty for committing the scribe for X for example
when it comes to federal crimes if the judiciary who determines if you
are guilty or not guilty for committing serial murders counterfeiting US
currency cyber crimes like identity theft terrorism like domestic and
international terrorism or securities and banking regulations such as insider
trading these are a sampling of crimes that be judiciary determines if you are
found guilty of committing beyond this our federal judiciary also deals with
civil Rosses where people sue each other for compensation where I would sue you
if I claim that you have harmed me in some way and so I want you to pay for
those damages civil lawsuits would include things such as patent copyright
and trademark laws if someone steals your patent steals your idea steals your
trademark you can sue them to make them pay financial damages that they’ve
placed upon you it would be the judiciary and determines who wins or
loses that case or breaches of contract my contracts are legal binding
obligations that both sides have to meet if one side doesn’t uphold their into
the bargain then they can be sued and they have to pay compensation to the
other party to pay for those damages placed unfairly upon them it also
includes personal damages if someone harms you harms your body you can sue
for compensation in fact if police department said they violate your rights
if they engage in excessive force then you consume for personal damages because
they’ve violated your rights and this can
finally include property damages someone destroys your property you can sue for
compensation and I actually have a personal story about this one so my
friend Andrew and his then-girlfriend kadian at the time they were driving
down the freeway together and he’s in the driver’s seat she’s in the passenger
seat and as they’re driving down the freeway this little spider comes down
it’s web right in front of Katie Ann’s face and when this happens she freaks
out she starts kicking and screaming at the
top of her lungs and oh by the end of her tirade she wind up kicking the
windshield so hard that she cracked it gonna have to get it replaced gonna cost
250 bucks Oh Andrew reasonably assumed that Katie
would pay for the damages Katie Ann refused and so Andrew sued kadian now
you can imagine they’re no longer boyfriend and girlfriend after this
incident in fact this case was so compelling that the producers of Judge
Joe Brown that national judge TV show called them up and wanted them to be on
the show the producer said they’d each get paid 400 bucks
Andrew of course said yes but unfortunately Katie Ann said no I guess
she didn’t want to be humiliated on national TV because if she did say yes
we’d be watching the clip right now but if you know I was in her shoes I would
have gladly gone on the show I get paid 400 bucks I get to pay off the damages
and I get some money in return go ahead and shave me on national TV I have no
shame when it comes to money well in all seriousness you’re right she wanted Kant
if she wanted settling out of court because she had no legal grounds to
stand on but had this gone to court it would been the judges who determine who
should or lose this case and likely they would
have sided with Dan true they would have awarded Andrew with that money to pay
for those damages so you can see this is the first responsibility the first power
of our judiciary to determine who by late the laws for both federal crimes
and civil lawsuits and if you are found guilty of committing a crime or have
you’ve lost the civil lawsuit well then this ties into their next power the
power to determine the punishments for those found guilty of violating the law
and this is really just going to depend upon the type of law that’s being broken
for example our legislature sometimes has laws in place determining minimum
and maximum sentencing where they determine these windows of punishment if
a crime is committed they’ll say if you commit this particular crime scene
murder you’ll automatically get five years in prison and up to twenty-five
years of prison and setting that window of punishment but then it’s up to the
judge to determine where to place that punishment within that window depending
upon the totality of circumstances for that unique individual case right if it
was just an accidental killing maybe just five years if it was a brutal
heinous killing 25 years or somewhere in between so that’s what typically happens
but there’s other instances in which the judges have the authority to create the
punishments himself well they have sole discretion on what the punishment should
be and I want to give you some examples of some unique cases or some unique
punishments that have been laid down by the judiciary for example there was one
man he failed to appear for Jewett for jury duty and so it was part of his
punishment he had to stand on a street corner all day long with a sign that
read I failed to appear for jury duty public
shaming for not being a good citizen oh we have this little girl a
twelve-year-old girl she as part of her punishment had her ponytail chopped off
in the courtroom why well because she chopped off the ponytail of a
three-year-old girl a ponytail for a ponytail kind of like an eye-for-an-eye
principle or we have this one man who as part of his punishment he had a choice
he’d either spend one night in prison or one night in the doghouse and he chose
the doghouse right so you can see here by these punishments were for lower
level crimes for misdemeanors and typically when it comes to misdemeanors
judges have sole discretion on what the punishment should be but if we’re
dealing with felonies major violent crimes then usually the Congress has
minimum and maximum sentences in place so that’s why I say it really does
depend on the law regarding what the punishment will wind up being so these
are the first two powers of our judiciary they deal with the
administration of justice making sure justice is served as someone
has violated the laws if someone has harmed you unfairly and I go through
those quickly because I want to spend more time on their next set of powers
that deal with their responsibilities of interpreting our Constitution so let’s
look at those powers next the next power of our judiciary is the power of
judicial supremacy where the Supreme Court has the final authority over the
meaning of our Constitution and their decision their interpretation has
binding precedents do they have the final sale or what the
Constitution means over how it’s being interpreted and their interpretation is
final that’s what binding precedents
ultimately means their interpretation will be the interpretation now and into
the future with the expectation that all the lower courts will abide by that
precedence there will be the expectation of the Congress and the president and
the states and the police and the people will all abide by that interpretation of
our Constitution there’s even an expectation that future Supreme Court’s
will abide by former Supreme Court precedents and that is what’s known as
the principle of stare decisis a Latin phrase that literally translates to to
let the previous decision stand to let the previous decision stand you see once
the Supreme Court has set an interpretation of our Constitution the
Supreme Court is then hesitant on changing that interpretation they prefer
to let the decision stand and come on take a second here and think about why
the Supreme Court is hesitant on changing its interpretation of our
Constitution once it has been set well if you said it’s about promoting
stability then you’d be correct you see if we are reinterpreting the
Constitution every other day then that would lead to too flexible of a document
when we no longer know with certainty what our federal government or what our
states can or cannot do or when what we as people can or cannot do so this
principle of stare decisis is about promoting consistency in interpretation
consistency leads to predictability where we can all reasonably point to the
document and know with certainty what we can or cannot do and that promotes the
stability in the rule of law that’s why they’re hesitant on changing our
Constitution and connected to this power of judicial supremacy is the power of
judicial review and go and take a second year and think about what this power is
what is the power of judicial review all right so let’s go and see what you
come up with here so in this case the power of judicial review is the process
of determining if government actions are constitutional based upon the supreme
court’s interpretation of our Constitution the power of judicial
review is determining the constitutionality of laws based on their
interpretation of the Constitution and this is going to include lots of
different government actions the supreme court can review federal laws executive
orders passed by the president rules and regulations passed by executive agencies
this includes state laws it includes state propositions like our propositions
here in California it includes police action making sure they don’t violate
our rights and due process within the lower courts making sure the courts
don’t violate our due process rights all of these government actions at the
federal and state level can be reviewed by the courts making sure those actions
are abiding by the supreme law of this land our Constitution and if they wind
up finding that these government actions violate our Constitution well then that
those laws become null and void those laws are stricken from the books they
cease to be a law because no law is greater than our Constitution and this
power of judicial review was granted to the court by the Supreme Court in
Marbury vs. Madison 1803 with a Supreme Court interpreted into
the Constitution this power of judicial review very likely a conflict of
interest here by their interpreting into the Constitution additional powers that
they in turn benefit from but regardless of that conflict of
interest they’d had this power now for over 200 plus years and we expect that
they have it so with that in mind the question becomes why is this so
significant why is this power of judicial review so important well if you said checks-and-balances
you’d be correct see this power of judicial review serves as a check on our
government institutions on our executive on our legislature on the states to
ensure that these different government actors abide by our Constitution and
it’s in this way that this promotes limited government to make sure they
abide by the limits set forth within our Constitution but they can’t go beyond
the powers that they’ve been granted I mean as the court stated in Marbury vs.
Madison quote the powers of the legislature are defined and limited by
the Constitution those limits may not be mistaken nor forgotten it’s the
proposition too plain to be contested the law is not above the Constitution
the law is not above the Constitution because if laws were above the
Constitution then our Constitution to become a meaningless document the
Congress the executive they violate the document all the time so to make sure
that our Constitution is a meaningful document then that means it needs to be
enforced and that’s exactly what our Supreme Court does with this power of
judicial review it enforces the limits of our Constitution upon our society
that’s why this is so important it’s so important in fact I want to state this
to you and yet another way the way I want to phrase this to you is from a
quote by Alexis de Tocqueville a famous French political thinker and politician
who visited the United States back in the 1800s to study our political system
and this is what he had to say about our Supreme Court we’re gonna read it
together and let’s see if you can try and break
it down for yourself so according to de Tocqueville the peace
the prosperity and the very existence of the union are vested in the hands of the
justices of the Supreme Court without them at the Constitution would be a dead
letter the executive appeals to them for assistance against the encroachments of
the legislative power the legislature demands their protection against the
assaults of the executives they defend the Union from the disobedience of the
states the states from the exaggerated claims of the Union the public interest
against private interest and the conservative spirit of stability against
the fickleness of the democracy now just take a second and see if you can try to
interpret what de Tocqueville saying put this in your own words here as best you
can what is the Tocqueville saying about our
Supreme Court as he was saying as I was saying earlier
right without them our Constitution would be meaningless it wouldn’t be
followed as he says it would be a dead letter and her Supreme Court is
enforcing our Constitution upon our society and what about all this business
with the executive versus the legislature the legislature versus the
states what’s that whole business about was he trying to get out there oh you
could contend that this sounds like a mediator
where are our Supreme Court is acting like a mediator between these competing
groups between these groups that disagree with each other and the very
reason they go to the Supreme Court to resolve these conflicts is because the
Supreme Court has the final say over what our Constitution allows for that’s
why they go to the court for resolution to make the ultimate decision so you can
think of the Supreme Court as a mediator or better yet let’s go and use this
sports analogy so let’s go and go to our Microsoft where documents that you can
visualize this so in a sports game like football right we have referees who are
enforcing the rules of the game so I want you to think of our Supreme Court
as the referees of our political system enforcing the rules of the game upon the
players in this game the rules of the game in this case would be on
Constitution where the Supreme Court is enforcing our
Constitution upon all the players in this political game that being the
executive the legislature and the states this is a great analogy to help you
understand why the Supreme Court is so important they’re enforcing the rules of
the game upon all the different branches of our government because let’s be clear
players in a game have no incentive to follow the rules they have every
incentive to break the rules if they can get away with it if it helps them win
their game let me just take it from me when I was in high school I played
football I was alignment and I was actively encouraged by my coaching staff
to cheat if I could get away with it and I did right as part of the linemen
offensive line I could not grab the defense could not hold them and so what
I do is I keep my hands close to my chest and as I’m tackling them I grab
them not letting them go but I was cheating to try and help our team win
didn’t matter we only won six games in four years we pretty much lost 34 games
we were a terrible team so you can see why I was trying to help our team win
but the point remains the same you have an incentive to cheat as a player the
executive the legislature the states they would have an incentive to violate
the Constitution if it helps themselves acquire more
power so this is why we can’t give them the power of enforcing the rules this is
why we need to have those referees that’s why we need to have the Supreme
Court so with all that in mind that now that
you understand the importance of judicial review and judicial supremacy
why it’s so important to our political system I want you to answer this first
attendance question for your first attendance question I want you to
explain what is the power of judicial review and why that power is so
important what’s the power of judicial review and why is this power so
important to our political system and with that let’s go back to our slides so
we’ve looked at the powers of our judiciary the issues they get to make
decisions on on our behalf and what I’d like to do next is to look at the
structure of this institution how is our judiciary set up let’s go to our next
slides now our judiciary is set up in a hierarchical way we’re at the top in
this case at the bottom of the slide we have the US Supreme Court they are the
highest court in the land and they have the final say over our interpretation of
the Constitution and their interpretation as stated earlier is
binding meaning their precedents must be followed by all the lower courts than
the federal side and all the lower courts on the state side the buck stops
with the Supreme Court of course if any issue is only pertaining to a state
constitution say it’s only pertaining to our California Constitution well then
our California State Supreme Court would have the final say it has final say over
what the California Constitution means and all the lower courts on the state
side in college would have to abide by that
interpretation so we see the states again are very similar to how our US
government is designed set up in this hierarchical way and at least in the
judiciary but what I want to focus on for this class is the federal structure
what we’re going to do is start at the top looking at the characteristics of
our Supreme Court and then we’ll work our way down looking at the US Court of
Appeals and the US district courts in turn so let’s start at the top with our
US Supreme Court let’s start with its characteristics so first up the Supreme
Court is a body of nine justices and these nine justices are appointed by the
President and they’re confirmed by the Senate and perhaps most importantly they
serve a life term they serve a life term where once they’re appointed and
confirmed their position is for life and once they’re in it’s very difficult
to remove the Supreme Court justice fact there’s really only four ways that they
can be removed if they retired if they are impeached if they break the laws
right you have to serve under a good behavior so if you commit a crime you go
to prison you can’t be a Supreme Court justice or of course if you die because
if you’re dead you can’t be a super good justice you’re dead but that’s it so
long as they serve in good behavior it’s almost impossible to remove a Supreme
Court justice and that leads me to the question of why did our founders see it
necessary to grant these judges life tenure what’s the logic behind that take a second here and think about what
is the purpose behind life terms alright so let’s go through the logic of our
founders here so there’s lots of reasons why our judges have life tenure the
first one and perhaps the most important is impartiality you see these lights
turn these life terms insulate our judges from outside political groups and
this allows them to interpret the Constitution as they think it should be
interpreted not how selfish factional interests want them to interpret it
because just imagine if we didn’t have this let’s imagine that they were
elected or should say appointed every four years by a president if that were
the case then they wind up interpreting the Constitution however that president
wants them to interpret it if they want to keep their position right they’d
interpret it out of a fear of what would happen to them if they didn’t so this
life term insulates them from that outside group it insulates them from the
president that allows them to make reasonable even-handed and fair
decisions to interpret the Constitution based on standards of fairness not based
on coercion that’s why there’s a life term promotes that impartiality of course there’s other benefits behind
this for example promotes stability and having a life term will promote a stable
interpretation of our Constitution because very likely these Supreme Court
justices are going to interpret the Constitution the same way that they do
as on day one as they do one year for tea
they’re going to interpret the Constitution the same way so long as
they are serving in their term and that promotes consistency in constitutional
interpretation that promotes stability in the rule of law to promote that stary
decisis to let the previous decision stand it also allows for a certain level
of expertise where these justices can become experts on constitutional law
understanding what all this vague language means understanding the
original interpretations our founders had for this language or understanding
the two hundred plus years of prior case precedents that have been laid down by
former courts that’s a lot of different cases and interpretations to sift
through but they got the time to do it because they serve a life tender and
last but not least these life terms can even promote diversity within our
Supreme Court to highlight this let’s go to the timeline of our US Supreme Court so if you go to this timeline here right
this gives you a timeline of all Supreme Court justice we’ve ever had from our
founding all the way to the present the red ones mean these are the Chief
Justice of the court the blue are just the regular justices and these green
dots represent our current Supreme Court and if you look here we have to go all
the way back to Reagan in terms are of our most senior court member today who’s
still serving Anthony Kennedy one was appointed by Reagan one under george w
are george HW bush two under clinton 200 george w bush and two under obama see this promotes a diverse set of
interests on our court where we have a younger generation and an older
generation on the court we also have different parties on the court
Democrats and Republicans different political ideologies and so because of
life terms they can promote a diverse set of interests so when these
disagreements arise over constitutional interpretation and there’s going to be
an interest to counteract interest within the court this will help promote
checks and balances so now that we’ve gone over the reasons for these life
terms let’s go ahead and just take a snapshot let’s look to see who your
Supreme Court is and here they are this is your current Supreme Court in the
middle we had Chief Justice John Roberts he’s the top justice appointed by
president george w bush as for the newest member of the court we have Elena
Kagan an appointed by Obama Anthony Kennedy was appointed by Reagan way back
in the 80s as for this man here Antonin Scalia oh he has recently died he’s no
longer a member which means there is a current vacancy on the court waiting to
be filled by Obama he is appointed America garland to fill the position but
the Senate Republicans refused to act they’re refusing to confirm the
appointment to her stuck in gridlock and as for the most senior member the oldest
member we have a Ruth Bader Ginsburg to your right right she looks like she’s
about to croak on the job here now I bring her up in all seriousness because
she is a liberal she’s a Democrat when I by Clinton and she has been asked to
step down by the Democrats as she was asked to
step down a couple years ago and that seems a little odd here why would the
Democrats want their own a party member to step down from the Supreme Court well
the reason is because the Democrats a couple years ago they were afraid they
were afraid that if she doesn’t step down she’s gonna wind up dying in the
next presidential term she’s getting up there in age and if she dies and if a
Republican wins the presidency well then her liberal seat is going to be filled
with a conservative right she’ll get replaced with a more Republican oriented
person and so that’s why they wanted you to step down while Obama was still in
office so she can be replaced by a liberal but Antonin I should say Ruth
Bader Ginsburg she said no she refused she said even though I just had
open-heart surgery my mind is still very capable of doing this job I refuse to
step down so I highlight that to show you that there are these outside
pressures these outside factions including in their own party that are
pressuring these Supreme Court justices trying to get them to do their bidding
but those life terms insulate and protect them from those outside
pressures so they can be those good referees and with that let’s go back to
our slides back to the characteristics of the court
so we said there a body of nine justices they serve life terms and they said
they’re in a point in position and speaking of them being an appointed
position this also is going to help promote impartiality see because they’re
appointed by the president rather than elected by the people this is going to
insulate them from the passions of the people see their loyalties are not with
the people their loyalties are with the Constitution to upholding this document
so because they’re in salute because they’re appointed this insulates them
from the people so they can interpret the Constitution as it should be
interpreted again to be that good referee beyond that these Supreme Court
justices and all judges are absolutely immune from civil lawsuits meaning they
cannot be sued for the decisions that they make they can’t be sued for the
decisions they make so long as they’re acting within the constraints of the law
and let me go and give you an extreme example of that here see in the Supreme
Court case stump versus Sparkman in 1978 a state judge authorized the forced
sterilization of a low IQ girl without her knowledge or consent and upon
finding this out the Sparkman family sued judge Stumpf claiming that he had
violated their child’s reproductive rights so this case went all the way to
the Supreme Court and the Supreme Court sided with judge stop saying he could
not be sued for the decision that he made the reason is it’s because he acted
within the confines of the law see at the time the state of Indiana
they had a law granting judges the authority to make this decision of
sterilization on a case-by-case basis and so a judge Stumpf did was legal
under the law he did not violate the law and thus he can’t be sued for the
decision that he made now this is an extreme example but it highlights the
point I’m trying to make why can’t we sue these judges for decisions that they
make why are we protecting them well the reason once again is it’s about
impartiality you see this absolute immunity insulates them from outside
political groups this allows those justices again to interpret the
Constitution as it should be interpreted not how factional interests want them to
interpret it because just imagine if they could be sued if they could be sued
for the decisions that they made well then they need to be paralyzed they’d be
afraid to make any decision because there’s always a loser in the case who
would sue them so this protects them from that outside interest to make those
reasonable even-handed and fair decisions rather than making decisions
based on coercion and just like we can’t sue the referees if we disagree with a
penalty that they threw down we can’t sue these justices for the
decisions that they make this allows them to be those good referees beyond this there’s also no formal
qualifications and who can be a Supreme Court justice there are no age
requirements no residency requirements no citizenship requirements you don’t
have to be a prior judge to be a Supreme Court justice in fact all of you right
now can be a Supreme Court justice you meet the qualifications now all you have
to do is get the President to appoint you and the Senate to confirm you but
that’s the easy part right anybody can do that in all
seriousness your take a second and think about why the founders said no formal
qualifications it’s the only position where there are no formal qualifications
for our federal government why is that well you likely said diversity by having
no formal qualifications it opens up the pool of people who can be Supreme Court
justices but we can have a lot of different perspectives from different
backgrounds on how the Constitution should be interpreted I’d say that is
correct furthermore our founders intended the
Constitution to be a simple document to read I mean it’s only 8,000 words long
and while that might sound like a lot it’s actually one of the shortest
constitutions in the world unlike our California Constitution which is one of
the longest at over a hundred thousand words long and there’s a reason why 50%
of those who take the California bar exam for the first time they fail it
it’s because it’s so complex and difficult to understand unlike our US
Constitution so because it’s short because it’s easy to read then anyone
can understand it anyone can interpret it and anyone can make rulings on it and
thus anyone should be allowed to be a Supreme Court justice from elite to
laymen that’s just one example of this at our newest Supreme Court justice
Elena Kagan this is her first time ever serving as a judge the first time she
had this rocket straight to the Supreme Court now despite never serving as a
judge she was the Dean of Harvard Law School so she definitely has
qualifications so while there are no formal qualifications you can be sure
there are plenty of the informal qualifications set by the President and
the Senate they’re not just going to take anybody they want to make sure
these people are good for the job that are run that they’re right for the job and lastly let’s talk about jurisdiction
there’s two different types of cases and Supreme Court is going to hear there’s
original and appellate jurisdiction now original jurisdiction simply means that
the case goes straight to the Supreme Court where they hear the case first
it’s like a fast track to the Supreme Court and these cases are outlined in
the Constitution for example if two federal agencies sue each other or of
two states sue each other it goes straight to the Supreme Court for
resolution but what I want to focus on in this class is what’s called appellate
jurisdiction an appellate jurisdiction is where a lower level Court will hear
the case first and the loser in that case will challenge that lower court’s
decision asking the higher court the Supreme Court to review it in the hopes
of overturning it right that is appellate jurisdiction and that’s what
we’re going to look at we’re going to look at this appeals process by looking
at the appeals process we’ll have a better understanding of how the
hierarchy within the Supreme Court and our judiciary as a whole how it works so
just so we know where we’re at in this appeals process right here is that
hierarchy once again and we’re going to be looking at first is how we get a case
from the appellate court level to the US Supreme Court so we’re looking
at the top of the hierarchy first so with that in mind let’s go and start
this process the process to hear that case at the Supreme Court the first step
is the loser in the case must request a petition for certiorari basically it
means they’re requesting for the higher court to review the lower court case in
the hopes that below that the higher court will overturn at the lower court’s
decision right this is the appeals process where the higher court can
review lower court cases and the whole purpose of this appeals process is to
promote checks and balances where if the lower court makes a mistake we have to
give the opportunity for the higher court to correct that mistake right if
they’re not interpreting the Constitution correctly well then we want
the higher court to fix it so again an example of checks and balances within
the judiciary now there’s going to be roughly 10,000 petitions of certiorari
made every single year 10,000 losers at the lower courts that ask the Supreme
Court to review their decisions and ultimately the Supreme Court only
takes on 75 to 80 of those cases less than 1% if you have to consider that the
Supreme Court is only dealing with the most difficult of cases the most
challenging of cases the cases where it’s not at all clear what the
Constitution allows for and that’s why they only deal with so few cases so the
question becomes how do we successfully get our case to the Supreme Court
once we’ve requested it well to do so you have to get the writ of certiorari
meaning the US Supreme Court agrees to hear the case and to do this you have to
get the rule of four meaning you have to get at least four out of the nine
justices to agree to hear the case if you only get three or two or one or none
well then the lower court’s decision stands you lose into the road but if you
do get at least four justices to want to hear this case well then you
successfully appealed and we go to the next step we go to the briefs stage and
a brief is where both the defense and the prosecution they will write up
statements and give those statements to the court basically trying to explain to
the court why they should rule in their favor and how they should be
interpreting the Constitution to justify why their position is correct they’re
trying to influence the court here to role in their favor
and once those briefs are read we then go to oral argument we’re now both the
defense in the prosecution will orally present their case to the court but note
this oral argument is not just rehashing or
stating what they’ve said in their briefs right this is not just a lecture
to the court because the court already knows their arguments so instead the way
that this is conducted is much more like a grilling session where the Supreme
Court justices ask really tough questions to the defense in the
prosecution wanting to know exactly why they should rule in their favor and why
they should be interpreting the Constitution in a particular way to
highlight this point we’re going to listen to an oral argument from US vs
Jones and let me go and set up the context here for you in this case see in
this case we had a lower appellate court the 12th Circuit Court of Appeals that
ruled that it is legal for the police to place a tracking device on your car
without a warrant they can just do it it does not violate your Fourth Amendment
protections against unreasonable searches and seizures the 12th Circuit
Court this is fine well Jones he lost the case right and so he sued right he
appealed his case to the US Supreme Court asking the higher court to review
and hopefully overturn the 12th circuit court’s decision and we’re going to
listen to is a very brief snippet of that oral argument let’s go ahead and
listen there would also not be a search if you
put a GPS device on all of our cars monitored our movements for a month you
think you’re entitled to do that under your theory the justices of this Court under our theory another this Court’s
cases the justices of this court when driving on public roadways have no
greater expectation your answer is yes you could tomorrow and decide that you
put a GPS device on every one of our cars follows for a month no problem
under the Constitution well equally mr. Chief Justice if the FBI wanted to it
could put a surveillance agents around the clock on any individual and follow
that individuals movements as they went around on the public streets and they
would their what I gather I’m suggesting that the court do the same thing that it
did in Knotts this case does not involve 24-hour
surveillance of every citizen of the United States involves following one
suspected drug dealer as to whom there was very strong suspicion for a period
of time that actually is less than a month because the beeper technology
failed well then you’re you’re moving away from your argument your argument is
it doesn’t depend how much suspicion you have it doesn’t depend on how urgent it
is your argument is you can do it period you don’t have to give any reason it
doesn’t have to be limited in any way right that is correct mr. chief judge
this is a normal way in this situations that we draw these limits how intrusive
the search can be how long it can be is by having a magistrate spell it out in a
war we can see in this case how our Supreme
Court justice Chief Justice John Roberts how he was grilling the Solicitor
General who was speaking on behalf of the US government
he was asking how is it that you can make the claim that the Fourth Amendment
allows for warrantless GPS tracking devices to be placed on our cars how is
that legal under your interpretation of our Constitution and the Solicitor
General’s response was trying to expand precedents from a prior court case and a
prior Supreme Court case the Supreme Court allowed for what’s called the
public action doctrine where if what you are doing is out in the public right in
general view then there’s no expectation of privacy but if I’m talking to my
friend in Starbucks then the people can overhear my conversation and so too can
the police they don’t have to have a warrant to eavesdrop on my conversation
because it’s out in the public sphere now in this case let’s expand that to
driving our vehicles when you’re driving on the public roadways there’s no
reasonable expectation of privacy meaning people can follow you around and
that means so too can the police without a warrant so what he’s doing is taking
that precedence and saying that this GPS tracking device is no different than a
police tale the GPS tracking device is no different and thus that’s why we
don’t need to have the warrant and the question becomes do you buy that
argumentation do you buy that logic well the nine justices of the Supreme
Court they did not buy it in a unanimous opinion they said GPS tracking devices
are much different than a police tale the intrusiveness of the search is far
greater than a police tale and this is why they said under our
Fourth Amendment you have to have a warrant based on probable cause to place
a GPS on someone’s car they overturned the 12th circuit court’s decision by
checks and balances at work here so now that you understand how oral argument
works once that is completed then the Supreme Court will meet in a private
room to determine exactly how to interpret the Constitution and what the
Constitution should allow for in this protein in this particular circumstance
and in these meetings no one is allowed other than the nine justices the media
is not allowed the people aren’t allowed not even their staff is allowed in this
meeting and the whole purpose behind keeping this in a private meeting is to
ensure that impartiality to insulate them from these outside political
pressures because if there’s someone standing right over them watching what
they’re doing that can be a little intimidating
and these supreme court justices may wind up interpreting the Constitution
the way those people want them to interpret it out of a fear for what
happened to them if they didn’t so by making their decisions in a
private meeting it helps better guarantee that
impartiality to interpret the Constitution correctly and fairly and
once they have hashed out their interpretation their decision will be
made public for everyone to see in a written opinion and in these written
opinions right the Supreme Court they are attempting to try to get a majority
opinion and a majority opinion is when you get at least five out of the nine
justices agreeing with how to interpret the Constitution and why they’re
interpreting it in that same way you got to get at least five out of the nine
justices agreeing with the same interpretation of the Constitution and
they all have to have the same reasons why they’re interpreting it in that
particular way and if the Supreme Court can do this then that establishes a
majority opinion and that establishes precedence meaning this will be the
interpretation of the Constitution today and into the future
with the expectation that all the lower courts and the states and the people on
the Congress and the executive that they’ll all abide by that interpretation see this is ultimately what the Supreme
Court is attempting to do to try to determine the once and for all what the
Constitution allows for in these particular circumstances and if they can
figure that out then into the future when we have similar situations occur we
will know what the Constitution allows for and what it doesn’t allow for we all
know what the correct interpretation should be now before we move on and continue on
our discussion looking at the appeals process I want to ask your second
attendance question for this lecture and here it is for your second attendance
question I want you to explain how the Supreme Court is structured that allows
it to be a more impartial or insulated political body I highlighted four
mechanisms that allow for this impartiality see if you can explain all
four how is the Supreme Court structure that allows it to be a more insulated
political body to make those even-handed and fair decisions try to highlight all
four mechanisms that I highlighted that allows for this so with that let’s
continue on so we’ve looked now at the appellate process getting from the
appeals to the US Supreme Court let’s now look at how we get from the district
courts to the appellate courts so we’re looking at the bottom part of this
hierarchy let’s go back to our slots so in the next tear down we have the u.s.
appellate courts and these appellate courts there are 13 federal courts of
appeals spread out throughout the country
here’s a map so you can visualize it 13 different courts of appeals write out
throughout the country each having jurisdiction over different parts of the
country and I want you to think of these appellate courts think of them as
miniature supreme courts each having jurisdiction to make rulings over our
Constitution in different sections of our country and these appellate courts
right they’re going to be structured as tribunals by bodies of three so the
Supreme Court was a body of nine these tribunals are bodies of three and these
justices are also appointed by the President and
confirmed by the Senate they serve a life term to ensure that they will be a
good referee and as for the process to get a case from the district courts to
the appellate courts it’s going to be the same process the loser in the case
asks the higher court the appeals court to hear the case if they agree to hear
the case right then they’ll make a decision on whether or not to overturn
the lower court’s decision or let that lower court’s decision stand it’s the
same basic process as we just discussed I go to that process quickly because I
want to focus on the purposes of our appellate courts what’s the purposes of
having these miniature supreme courts well there are two purposes first these
appellate courts are going to hear appeal cases from the lower in US
district courts ensuring they abide by US Supreme Court precedents they want to
make sure that these lower courts are abiding by the supreme courts
interpretation of the Constitution so in this way they’re serving as lapdogs
there’s a lap dog to the Supreme Court making sure all those lower courts are
abiding by the one interpretation helping us ensure that we have one
interpretation of our Constitution enforce the same way across the nation
and if they don’t do that if they don’t correct the mistakes made by the lower
district courts then you can be sure that the US Supreme Court will take on
that case and we’ll fix the lower court’s decision right this hierarchical
structures about promoting accountability to the US Supreme Court
to make sure we get we have one interpretation of our Constitution
enforced the same way across this country of course you should recognize that
there are certain circumstances in which we just don’t know what this
Constitution allows for where we have no US Supreme Court precedence like these
cases are so unique that we just don’t know what precedence is so if and when
that happens where Supreme Court precedence is unclear
then these appellate courts have the authority to establish precedence
themself and their decision is only binding within their jurisdiction if and
when the higher courts precedence is unclear the appellate courts get to set
precedents themselves they get to interpret the Constitution the way they
think it should be interpreted this is what makes them that miniature Supreme
Court to highlight an example of this let’s go back to this map so prior to
the Supreme Court ruling gay marriage was a constitutional right across the
country there was no precedence on gay marriage it was not at all clear whether
or not the Constitution granted gays and lesbians the right to marry wasn’t it
all clear so where Supreme Court precedence is unclear then these lower
appellate courts they got to make the decision themselves on whether or not
gay marriage was a right for example the Ninth Circuit Court right for California
they ruled that it was a constitutional right but the error decision was only
binding in the Ninth Circuit in California Nevada Arizona Idaho Oregon
right whereas in the Sixth Circuit Court of Appeals they ruled that gay marriage
was not a constitutional right but the day our decision was only
binding within their jurisdiction Michigan Ohio Kentucky where there is no
Supreme Court precedents these lower appellate courts get to set the decision
themselves but you see if and when this happens if and when we have lower
appellate courts that have disagreements over our interpretation of the
Constitution well when that happens the Supreme Court has a vested interest to
take on that case to settle this dispute once and for all to determine once and
for all what does the Constitution allow for and they did take on this case and
they ruled that gay marriage was in fact a constitutional right across all 50
states and now that the higher authority has acted all these appellate courts
have to abide by that interpretation they have to uphold gay marriage across
the entire country so hopefully through that example you can see how this
process works the Supreme Court acts all the lower courts have to follow when the
Supreme Court doesn’t act the appellate courts get to make the decision
themselves but is only binding with in their little jurisdiction so that is the appeals process for the
appellate courts now let’s now finish with the lowest
level courts the US district courts and these district courts right
characteristics there’s going to be 94 federal district courts right out
throughout the country in fact if you look at the map you can see them all
these little squiggly lines here like in California or in Texas those represent
the district lines for these district courts California’s for district courts
Texas is for Oklahoma’s three New Mexico is one Washington as to i-94 spread out
throughout the country and these are what we typically think of when we think
of our court system where we have one presiding judge watching over these
judicial proceedings making sure due process of law is being followed and
these judges as well they are appointed by the president confirmed by the Senate
and they serve a life term right to ensure that impartiality once again I go
to that quickly because I want to focus on what the purposes of these courts are you see up to this point we’ve only
focused on our US Supreme Court and appellate courts and their only
responsibility is to interpret our Constitution to determine what our
Constitution allows for and what it doesn’t well these district courts are
going to deal with everything else they’re going to conduct jury and bench
traps for civil lawsuits and for criminal lawsuits as well as dealing
with constitutional issues see these lower district courts these are the ones
that deal with the administration of justice that I started this lecture on
determining who violates the laws and what the punishment should be for those
who break those laws that’s their primary responsibility
unlike the higher level courts whose primary responsibility is to interpret
our Constitution Hanna stated they’re going to conduct these trials based on
either jury or bench trials and it really does just depend on the case on
if it’s a jury or a bench trial for example for criminal cases and criminal
lawsuits you’re typically going to have a jury trial
that’s our Sixth Amendment right to a trial by jury where a jury of our peers
determines if we are guilty or not guilty beyond a reasonable doubt but this is not absolute if your
punishment is less than six months in prison then you can be denied a jury
trial and instead you will have a bench trial where a judge determines if you
are guilty or not guilty where the judge acts as the jury that’s
why I say really does just depend on the particular crime that you’ve committed
to determine whether or not you get a jury or bench trial
this depends on the situation but let me go and give you an example of a bench
trial in this case Judge Judy is going to be a bench trial let’s go and watch
this video I saw Jen crouching down by the pool with her iPhone in her left
hand I didn’t see her iPhone I came from a strong touching down the floor on the
left hand but in the steroid she was okay she was crouching down wonderful
like like this like this no yeah you are shush and and I came out her I pushed
her in the pool she was wearing your bathing suit
I saw her back her bathing suit was on because when she got out of the pool
I saw her bellybutton ring and that’s how I remember it and it wasn’t
malicious at all I have no idea I felt awful after this or if you feel off well
all you knew was the atmosphere in the party we’re all pushing each other and do something wrong yeah they’re
currently ruined her iPhone you have to pick that suppose that is not rocket
science or is rocket science rocket science is when the scientists
find out things about space all right let’s go back to our slides
here so we see judge judy acting as the jury here right this is a bench trial
she gathered the facts of the case and she made a decision of who should win
this civil lawsuit in this case she sided against the rocket scientist the
rocket scientist had to pay those damages for negligently ruining her
friend’s iphone so you see here that these lowest level courts they deal with
the administration of justice they deal with who breaks the laws and what the
punishment should be if you’re found guilty and these lowest level courts
they are the lowest rung of the ladder they have to abide by their appellate
courts precedence they have to abide by the US Supreme Court precedence if they
don’t well then their decisions will get overturned and if the appellate court
doesn’t fix it the new US Supreme Court will case in point
in 1967 our US Supreme Court in Gideon versus Wainwright stated that we have
the right to appointed counsel they interpreted that right into our
Constitution so now if a lower level Court one of these district courts
denies you appointed counsel if you cannot afford an attorney well then they
violated your rights they violated Supreme Court precedents so in that
situation you should appeal your case to be appellate level court and they will
correct that mistake and if the appellate court doesn’t fix it then the
US Supreme Court will see I highlight that to show you this hierarchical
process this hierarchy is about holding all the lower courts accountable to
Supreme Court precedents to make sure we have one constant
tution enforce the same way across this country and that leads me to my next
attendance question for this lecture for your next attendance question I simply
want you to explain why the judiciary is set up in this hierarchical structure
what is the purpose of this hierarchy another way of phrasing that is what is
the purpose of this appeals process with that let’s go back to our slides all
right so now that we’ve gone over the powers and structure of the judiciary I
want to finish our discussion today looking at one of the controversies of
our Supreme Court that being the controversy of judicial supremacy and
judicial supremacy just as a reminder is where the Supreme Court has the final
say over the meaning of our Constitution it has final interpretive authority over
the document and this judicial supremacy is very much contested you see the
states the Congress the president they all claim that they should have the
power over constitutional interpretation they should be the ones who get to
determine what the Constitution allows for and the question becomes why is this
power over constitutional interpretation why is it so contested why do all these
other groups want to have this power instead well cynically the reason they want this
power is because those who have the power to interpret the Constitution will
likely interpret it to benefit their own self-interest it ties back to that
sports analogy you give the rules to the players of the game where they’re
enforcing the rules and I’ll enforce the rules in a way that helps themselves win
and thus they shouldn’t be given that power that’s the cynical explanation for
why they want this power to help themselves although there are legitimate
arguments to be made for and against judicial supremacy and I want to go to
those arguments with you in turn so let’s go and start with the arguments
for judicial supremacy does they give this power to the Supreme Court and that
first argument for this is what’s called the process theory of judicial review so under this process theory the court
uses its power of judicial review and judicial supremacy to enforce the
democratic process and to protect our fundamental rights when the political
process itself fails protecting us against tyrannical factions you see if
we go back to our very first lecture I told you that democracy is left to its
own devices will self-destruct from with that the reason is because we are
electing self-interested actors people into government and giving them power
and when you give people power they have a tendency to abuse that power to help
themselves where they could undermine the democratic process undermining your
right to vote undermining the choices you have on Election Day ending
elections all together all on the effort to maintain their power so this is
exactly why we need to have the Supreme Court to stop those government actors
from abusing that power to uphold the democratic process when those government
actors want to undermine that process and to protect our rights when those
government actors seek to strip us of our rights in many ways we need the
Supreme Court to serve as a check on our elected officials to protect against
tyranny and to highlight this point what we’re gonna do is look at Justice Sonia
Sotomayor Senate confirmation hearing where she was grilled by the Senate for
three days straight asking her tough questions wanting to
know exactly why they should confirm President Obama’s appointment we’re
gonna watch a short clip here that highlights this process theory of
judicial review let’s go ahead and watch and then we’ll discuss the wartime
Supreme Court decisions like Korematsu that we look back at with some it will
be wildermann of course for a mosque versus the United States decision in
which the Supreme Court upheld a government policy to round up and detain
more than a hundred thousand Japanese Americans during World War two it seems
inconceivable that the US government would have decided for huge numbers of
citizens in detention centers based on their race and the Supreme Court allowed
that to happen I have to keep Justice Roberts about this I’ll ask you as well
do you believe that Korematsu was wrongly decided
what’s it does I definitely have a duty to resist the kind of wartime fears that
people understandably felt during World War two which likely played a role in
the 1944 karamatsu decision a judge should never fear I judge should rule
from law and the Constitution is inconceivable to me to me today
that a decision permitting the attention arrest of an individual solely on the
basis of their race would be considered appropriate by our government some of
the great justices in the history of our country were involved in that decision
how does the judge resist those kind of fears what hopes by having the the
wisdom of the Arling and blessing by having the wisdom to understand always
no matter what the situation that our Constitution has held us in good stead
for over 200 years and that our survival depends on a floating so in this case we have senator Feingold
bringing up this Korematsu versus United States a Supreme Court decision that
upheld the detention of a hundred thousand Japanese American citizens and
throwing them into internment camps and the reason why is bringing this up is
because in many ways our Supreme Court fell down on the job here
they let tyranny slip through the cracks and the reason he brings this up is he
wants to be sure that she’s not going to let that happen but she’s going to
uphold in this process theory of judicial review that she will be
politically insulated from the passions fears and prejudices of the people and
will stand by the Constitution when the people want to undermine that
Constitution to uphold the principles of our democracy precisely when the very
people want to undermine our democracy or to use that analogy to protect the
rules of the game when the players are seeking to undermine those rules and
that’s why we need that Supreme Court to be those good referees and the very
reason we can give them this power is because they are more insulated as a
political body they serve a life term they’re appointed not elected they can’t
be sued for the decisions that they make they make their decisions in a private
meeting because they’re insulated it gives them
a better ability to interpret the Constitution correctly not based upon
coercion because if we gave us power to add to the legislature or the state’s
executive they could care less about what the Constitution says they’ll
interpret it however they want to help themselves acquire more power or to help
themselves get reelected they just are too biased as a body they have too much
to gain or lose and how the Constitution’s interpretive unlike our
Supreme Court regardless of how they interpret it they’re going to be there
they get to stay in a position their position is protected and thus that just
in that way that makes them less biased as a body they’ll be more likely to be
fair and impartial so this is in many ways just a reiteration of why we give
this power to the Supreme Court I’ve highlighted this point in yet another
way that’s why this is so important but something we haven’t talked about yet is
the legitimate argument to be made against judicial supremacy the argument
to say don’t give them this power and that is what’s known as the counter
majoritarian problem see under the counter majoritarian problem the fear is
that these are unelected justices that are just too independent to be given the
power of interpretation and that itself can lead it to tyranny by a minority my
these are very insulated people they serve a life term we cannot sued them
they are unelected they make their decisions in a private meeting because
they are so insulated because they’re so protected well then there’s just no
accountability over them anymore where these justices can wind up pulling the
blindfold off the lady of justice to interpret the Constitution how they want
to interpret it rather than how it should be interpreted they could wind up
interpreting the Constitution in a way that strips millions of people of their
rights and there’s nothing we can do about it nothing to stop them from being
a tyrannical minority that’s this fear of giving them the power of judicial
supremacy the counter majoritarian problem and to highlight this point
let’s go back to Justice Sonia Sotomayor Senate confirmation hearing in which in
this case we have Senator Lindsey Graham who brought up this very concern
so let’s go and watch this clip I think fundamentally judge you’re able after
all these years of being a judge to embrace a right that you may not want
for yourself to allow others to do things that are not comfortable to you
but for the group they’re necessary that is my hope for you that’s what makes you
to me more acceptable as a judge and not a activist because an activist would be
a judge who would be chomping at the bit to use this wonderful opportunity to
change America through the Supreme Court by taking their view of life and
imposing on the rest of us I think and believe they don’t want to know about
you so far that you’re broad-minded enough to understand that America is
bigger than the Bronx it’s bigger than South Carolina so the reason why he brings up South
Carolina is because he’s from South Carolina and oh she’s from the Bronx and
in this case right he had this particular definition of what he calls a
judicial activist where he said this is a judgement is chomping at the bit to
use this opportunity to interpret our Constitution in a way that would force
their values and beliefs upon millions of other people by interpreting the
Constitution the way they want to interpret it rather than how it should
be interpreted that was his fear of Sonia Sotomayor now at the end of the
day he said I don’t think you’re going to be this and he did vote for her he
did confirm President Obama’s appointment but that is the concern we
don’t want our judges to be biased we don’t want our referees to play
favorites when enforcing the rules of the game we
don’t want them to play favorites with one team over another in a sense that’s
this counter majoritarian problem and as an example a possible example of this
let’s talk about Bush vs. gore you see this election was already a
controversial election because we technically elected a minority president
right the Electoral College produced that funky outcome but there was a whole
other controversy here to highlight this controversy we need to go back to 2000 see in this election this was a very
close election so close in fact that whoever won the state of Florida would
win the electoral college and win the white house and in Florida the margin of
who won and lost was razor thin the determination of who won floor
was 537 votes there’s like 10 times more people that go to Oceanside they go to
Mira Costa College then determined that the outcome of that election and there
was a particular problem in selection called a D hanging a Chad a controversy
C a hanging Chad is when you hole punch a piece of paper and that little dangly
piece was left there just dangling that’s a hanging Chad and for some
reason the way that Florida did their elections in 2000 was the way you vote
for your candidate is you hole punch your candidate now if that little
dangling piece is left on your ballot it is as it goes through the voting machine
your ballot will not get counted and in such a closed selection where every
single vote can be the difference of who wins that all who loses it all we need
to be sure that these votes are being counted properly and so Gore who was
behind in the election at this point he asked for a recap to manually recount
these vows to make sure they’re being counted properly well Bush who was ahead
he challenged us and this in turn went to the courts and the Florida State
Supreme Court they allowed the recount to continue so Bush appealed this case
and it went to the US Supreme Court where they stopped the recount election
based upon the one-person one-vote principle you see the Supreme Court’s
logic here was that all these counties that were manually recounting the votes
they didn’t have a standardized process some counties would add them up just
tallying them up on a piece of paper others would create stacks but there’s
just no standardization and the fear said because it’s not standardized that
increases the likelihood that votes will go miscounted or uncounted and given there’s just not enough time
to create a standardized process even though there were 60 days to do it we
simply have to stop this recount election because Bush was ahead prior to
the recount Bush wins Florida Bush wins the electoral college and Bush wins the
White House now if you were just an outsider looking in right you don’t know
anything about this case you’re just an outsider looking in this can look a
little suspicious because of how the vote broke down on the court see the
five conservatives on the court called to the recount to stop which benefits
their team their party the Republicans whereas the four liberals on the court
called for the recount to continue right that helps their team their party the
Democrats so just based upon the breakdown of the vote this looks like a
political decision not a constitutional decision but they didn’t care about what
the Constitution said all they cared about was helping their party win the
White House but if we actually look at the interpretation of the Constitution
if we actually look at their precedence it looks even more suspicious because
the five conservatives on the court stated quote our consideration is
limited to the present circumstances our consideration is limited to the present
circumstances which suggest that their decision does not command precedence
what they’re saying essentially is that the Constitution doesn’t give them the
authority to stop the recount election but they’re going to do it anyway this
one time the Constitution says we can’t do this but we’re still going to and it’s for this reason why this
decision was seen as highly illegitimate the dissenting opinion the minority
opinion in this case they said this is a counter majoritarian problem as the
dissent stated quote although we may never know a complete certainty the
identity of the winner of this year’s presidential election the identity of
the loser is perfectly clear it is the nation’s confidence in the judge as an
impartial guardian to the rule of law right they’re saying that ultimately the
Supreme Court pulled the blindfold off the lady of justice they made a biased
decision to just help their party win an election as its political cartoon
highlights my New Year’s resolution is to decide the 2004 presidential election
mine too this is the concern of the couch
immature tyranny although I want to be fair to the Conservatives here in terms
of why they said this does not have precedence so you have to consider that
if they said the Constitution allows for this well then that would allow future
courts to end democratic elections and that’s a dangerous precedence that’s a
scary thought that unelected officials can end a democratic process and so
that’s why they said that the Constitution doesn’t give us the
authority to do this but we’re going to do it this one time because of how
challenging the situation is of course you could say if that’s the case then
one time is too many and that’s why the Democrats threats where the Liberals the
dissenting opinion that’s why they said we just need to let democracy play
itself out we need to let this process work its way through because 60 days is
plenty of time to create a standardized process and at the end of the day just
so you know Bush was the legitimate winner in 2000 he won by 537 votes
Florida still did the recount just to be sure but it’s the way in which she won
that made his rule look illegitimate that he wasn’t elected by the people
rather he was appointed by the Supreme Court all right so you can see here the
concerns of the Supreme Court the whole concern is about political bias the
whole concern is that they can be those biased referees Bush versus Gore really
highlights that point very well let’s go back and look at some other
problems so another problem in terms of giving this power to the Supreme Court
would be that you know justice is a phatal sometimes justices just make
mistakes while they may mean well they can still make some pretty bad decisions
for example Bradwell versus Illinois 1872 the court upheld a ruling to bar
women from practicing law in the state of Illinois why because she’s a woman
basically upholding gender discrimination job discrimination or
Plessy vs. Ferguson upholding separate but equal upholding racial segregation
across the country or Dred Scott vs. Sanford stating african-americans are
slaves they are property they aren’t people or buck vs. Bell
where the court upheld a statute instituting compulsory sterilization
those deemed unfit to have a child as the Chief Justice Justice Holmes stated
in this case quote three generations of imbeciles is enough you know we often hear of a Hitler
practicing eugenics trying to create the perfect race well we often forget to
realize is that we were doing the same thing here in this country buck vs. Bell
highlights that and what’s worse is that because of that principle of starry
decisis to let the previous decision stand these bad decisions have long
lasting negative implications upon our society Plessy vs. Ferguson lasted over
50 years upholding Jim Crow laws that compulsory sterilization of those deemed
unfit technically still is legal in this country the Supreme Court has never
overturned that precedence so I gave you the example of stump versus Frank
Millett earlier in this video we still see sterilization of those
deemed unfit so our justices can make some really awful mistakes that can hurt
millions of people in the process and given they can make these mistakes
instead of giving them this power we should give this power to the
legislature give this power to a body that is held more accountable to the
people so they make a mistake we can punish them for that mistake we can boot
them out of office because of it unlike our Supreme Court who is just too
independent to hold accountable so these are the ultimate arguments to be made
for legislative supremacy don’t give this power to the Supreme Court they
just can’t be trusted with it this leads me to my fourth attendance question for
this lecture for your fourth attendance question I just want you to explain what
is the counter majoritarian problem what is the counter majoritarian problem try
and put this in your own words here and with that let’s go back to our slides so
we’ve looked at the arguments for and against judicial supremacy and I’d like
to finish our discussion looking at the rebuttal to the counter majoritarian
problem see the whole concern about this counter majoritarian is that there’s
just no accountability to the people allowing our justices to act erratically
with this power so if that’s the case then just take a second here and think
about what in general does our system of government use to prevent or to correct
tyranny from arising the whole concern is they could act erratically then what
is our system of government do to protect against that tyranny and you
likely have stated checks and balances which is correct you see when I said
that there’s no accountability to us I was over exaggerating the supreme court
can’t just do whatever it wants there’s still a system of checks and balances in
place to correct their tyranny if and when it occurred
and that’s what I want to look at next I want to look at ways in which our system
of governments designed to protect against tyranny from this Supreme Court so let’s start with how we can prevent
tyranny and we can prevent tyranny stopping these justices room ever being
tyrannical in the first place to the appointment and confirmation process but
we just elect good justices who don’t want to abuse their power and let’s look
to see how this process can produce fair and unbiased justices so for example
right President Obama’s currently our president and he has a Supreme Court
nomination now in his heart of hearts right it’s pretty obvious he would want
to have the most liberal person possible within the court but those Senate
Republicans who control the Senate there’s no way on earth they would ever
confirm a liberal justice C in their heart of hearts they want the most
conservative justice as possible but President Obama would never appoint a
conservative justice so that’s the case then then what’s going to have to happen
if we’re to get a justice appointed and confirmed what type of Justice will wind
up getting through this process ultimately there’s gonna have to be a
compromise candidate and the compromise in this case is a moderate Justice
someone in between if a liberal is too liberal and a conservative is too
conservative then let’s cut that straight down the middle
and appoint a moderate justice both sides can find that middle ground that
they can live with and at the end of the day a moderate justice is going to be a
justice who doesn’t play favorites with any one team who doesn’t play favorites
with any one part they’ll be more inclined to be unbiased
and fair to both sides so we can prevent tyranny in the first place because this
appointment confirmation process typically produces moderate justices and Merrick garland by President Obama’s
nomination Merrick garland is considered a moderate justice but the Senate
Republicans still refuse to act and let’s go ahead and think about why they
refuse to act why is that the Senate Republicans are saying no to President
Obama’s appointment they’re not even letting a confirmation hearing there is
refusing to act why is that well the reason is because they are banking they
are hoping that a Republican wins the presidency in 2016
and if a president is a Republican and the Senate is controlled by Republicans
well then the Republicans can appoint and confirm a very conservative justice
right allowing a more biased justice to enter into the court that’s why the
Senate Republicans are stonewalling and so the point is is that sometimes there
can be instances in which we have biased justices seep into the court Antonin
Scalia was appointed by a Republican confirmed by a Republican Senate he was
the most conservative member on the court Ruth Bader Ginsburg appointed by a
Democrat confirmed by a Democrat Senate she was the most liberal member on the
court biased justices can still seep into the system but even then I say
there’s still a check on them to prevent their tyranny and that check would be
the other eight justices if they try to interpret the
Constitution away that would only help a very particular agenda the other eight
justices can stop them because you got to have a simple majority in order to
interpret our Constitution or another way of phrasing met Antonin Scalia and
Ruth Bader Ginsburg they pretty much cancel each other out each side checking
the other so those nine justices is another way of preventing tyranny in the
court but you know let’s just assume for the sake of argument that all the
Supreme Court justices decided team up and they say hey let’s team up and start
interpreting the Constitution to help ourselves screw the people they’re going
to act tyrannically so if and when that happens well then we
also have means to correct that tyranny if and when it occurs and some examples
of this would include Congress’s ability to impeach these Supreme Court justices
where the Congress can fire them from their position of course that’s
difficult to do takes a simple majority of the house and two-thirds of the
Senate to impeach them and because of that difficulty we have never
successfully impeached a Supreme Court justice in our entire nation’s history
it is challenging so if that doesn’t work well then future
Supreme Court’s they have the ability to change precedents and to correct the
mistakes or to correct the tyranny from prior courts because you know while I
said Supreme Court’s believe in the principle of stare decisis to let that
previous decision stand that doesn’t mean they never change their
interpretation of the Constitution they will change its interpretation if they
think it’s absolutely necessary and that’s why dissenting opinions exist
a dissenting opinion the minority opinion tries to explain why they think
the majority got it wrong and they’re trying to convince future courts to
reinterpret the Constitution the way they think is more correct so yes the Supreme Court does change its
precedence over time so future courts can check prior court’s case in point we
have pace versus Alabama an 1880 Supreme Court case that upheld laws that banned
interracial marriage court said you do not have a constitutional right to marry
someone that is not your race and thanks to Starr decisis that stayed on the
books for 87 years stripping away a person’s right to marry whom they love
because of their race well 87 years later in loving versus
Virginia 1967 the Supreme Court overturned its decision it made and pace
vs. Alabama saying you do have the right to marry whomever you want regardless of
their race it took 87 years to fix but the Supreme
Court’s still fixed it correcting the precedents that was made in 1880
granting people their right to marry once again of course you know supreme
courts may never change their interpretation they just may let that
precedent stand so if and when that happens there’s really only one thing
left that we can do and that is to amend our Constitution see when we amend our
Constitution we can override their interpretation of the document another
way of phrasing that if they are ruling a law that we like as unconstitutional
then we will make that law constitutional by changing the
Constitution we will change the rules of the game to make that long a legal law
and this happens all the time where our Congress proposes amendments to our
Constitution to try to override Supreme Court precedents for example we have the
human life Amendment in 1973 the Supreme Court in Roe versus
Wade rule that women have the right to an abortion as part of their right to
privacy the right to terminate a pregnancy is a reproductive rights well
a lot of conservatives disagree with this they believe in the right to life
and so they have proposed a human life amendment an amendment which would state
explicitly that life starts at conception and given that’s the case
then women cannot obtain an abortion right that fetus essentially has human
rights that would overturn the decision set in Roe vs. Wade or we have the
Liberals who proposed the death penalty abolition Amendment many liberals do not
believe in the death penalty they see it as cruel and unusual punishment the
Supreme Court in the 1970s they ruled that it was legal and so this death
penalty abolition amendment would overturn the Supreme Court’s precedents
saying essentially the death penalty is cruel and usual punishment and us is no
longer allowed in the United States an amendment overriding their
interpretation this is the last thing that we can do to correct judicial
tyranny but it is also the hardest thing to do of them all because it requires
two-thirds of the House and the Senate to propose an amendment to our
Constitution and it requires 3/4 of all the states to
agree to make those changes and that’s why we’ve only amended our Constitution
27 times in over 230 plus years as a nation it is a very very very difficult
to amend our Constitution and that just goes to show you that at some point
there’s simply nothing left that we can do to correct the tyranny made by the
Supreme Court it’s going to happen but even if it does wind up happening our
founders said that’s okay because it will be a limited tyranny
the reason it’s a limited tyranny is because according to our founders the
Supreme Court is the least dangerous branch of our government to highlight
this point let me give you the phrasing that our founders made according to our
founders who has the power of the purse the power of the money who controls the
money the legislature right they control appropriations they control taxing they
control the money who has the power of the sword the executive branch does
right they control the military the prison system the police force so
according to our founders if you give this extra power of constitutional
interpretation to the legislature or the executive well that will tip the scales
of power too much in their favor where they not only will have the power to
interpret our Constitution but they’ll have the power to enforce that
interpretation through the power of the purse through the power of the sword
it’s just too much power to give to them opening up the potential for tyranny so
the court says instead of giving them that
give the power of interpretation to the Supreme Court because they are the least
dangerous branch of government they don’t have the power of the purse they
don’t have the power of the sword they don’t have the power to enforce their
interpretations so even if they do abuse this power it’s better that they abuse
it than the legislature or the executive because when the latter abuses this
power that tyranny will be far greater and have far more negative implications
on our society then when the judiciary does it precisely because they’re the
least dangerous branch their tyranny will be a limited charity so at the end
of the data right this whole debate about judicial supremacy really does
stem around this question of can we trust our Supreme Court justices can we
trust them to do a good job and you know at the end of the day I’d say they have
done a pretty good job there is a reason that our Supreme Court has higher rates
of approval then both the legislature and the executive combined the reason is
because they try to do the best job they can of interpreting our Constitution
ensure while I’ve shown your mistakes they’ve made in the past I’ve also shown
you how our Supreme Court tried and has successively corrected those mistakes
and so long as they keep trying to do the best job that they can we will
continue to entrust in depth this power of interpretation and with that this is
going to be your final attendance question for this lecture for your final
attendance question I want you to explain the different ways the Supreme
Court can be checked if and when they abuse their power if the Supreme Court does abuse its
power of interpretation what are the different ways in which we can check
their authority to correct that tyranny all right with that let’s go back to our
slides have our summary did she adhere so for this lecture we went over the
judiciary and we said it’s sort of just an important institution in our system
of checks and balances because of the power of judicial review and judicial
supremacy it helps ensure that all of our government abides by our
Constitution to enforce the Constitution upon our society however we also saw
there’s a lot of disagreement about whether or not the Supreme Court should
have this power there’s the process there in judicial review that says they
should have this power to protect our democracy whereas there’s the opposing
viewpoint of the counter majoritarian problem that says this is too much power
to give to them because they could undermine our democracy wherever you
stand on that one thing is clear who interprets the Constitution and how they
interpret the Constitution matters to politics who interprets and how they
interpret will impact and change the distribution of resources and with that
we’re all done so just as your reminder there are five attendance questions
embedded within this lecture video be sure you answer them and send me your
responses via email by the specified due date and time on the assignment due date
checklist I’ll see you guys next time bye

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