Paul Johnson POLS 110 More Stuff about Courts

Main points
* Judicial Review Review
* The Court as a policy maker
* Civil liberties: The Bill of Rights does not protect you against the state government

Philosophy My opinions:
*  legal decisionmaking is a complicated, sometimes unpredictable, blend of 
* legal reasoning 
* political judgment
* A lot of "specific decisions" percolate to make general policy 

How does it Percolate?

Legal Reasoning!
* Adversary system: 2 sides make their best arguments.
* They cite precedent.
* Precedent: previous similar cases (esp. decisions of higher courts)

Other Widely shared ideas
* Stare decisis: "let the decision stand".
* Court should not change a precedent unless there is a strong reason
* Example: recent SupCt decision upheld Miranda warnings
* Norm of "nonpolitical" decisionmaking
* Lawyers hate the idea that politics enters decisions

Agree To Disagree
* Most people agree:
* Judicial review is OK
* Most people disagree about
* Particular decisions, especially about the "rights of criminals"

Judicial Activism 
* Is "judicial activist" an insult?
* Maybe. It is certainly confusing. Most books don’t give good definitions
I say judicial activism means
* Court willing to enter "controversial" areas and fight with Congress, president, or state legislature
* Court is willing to impose its judgment in place of the "properly elected" branches 

Examples of Judicial Activism
* Strike down Congressional law banning flag burning
* 2000 presidential election: Order Florida to stop recount
* Tell state police to read Miranda Warnings
* Order stop to executions

* Problem:
* Sometimes Court is "active" in telling state/fed what to do,
* But it does not change Court precedent
* School desegregation enforcement

How Does the Sup. Ct. Work?
* They Choose Cases
* Court is highly selective
* "mandatory appeals" rare
* writ of certiorari: losers in lower courts ask Sup.Ct. to "make more certain" a decision
* Sup.Ct. uses "rule of 4" to select cases

Deciding in the Court
* Sup Ct: majority rule!
* Cons./lib./mod. "blocks" often exist
* Opinion=essay about case
* Majority opinion (for the Court)
* Dissenting (Minority) opinion
* Concurring opinion

Appointment Politics
* Federal judges serve life terms (not so: state and local judges)
* Presidential appointment: how "political" should it be?
* Senatorial courtesy: Pres. takes input from same party Senator about district judges
* Senate has typically approved appointments
* Some Notable battles for "ideological" appointments

Critique 1: quality of policy
* Courts decide specific cases
* Do these accumulate to good public policy?
* Mental health -- homelessness

Critique 2:Judicial Implementation

Critique 3: Weakness against the bureaucracy
* Courts lack effective tax and administrative powers (desegregation counterexample)
* Can use "contempt of court" fines/imprisonment (but rarely do)

Civil Liberties
* Barron v. Baltimore: The Bill of Rights does not apply to the state governments
* Why? (1st says "Congress shall …")
* What does that mean?
* How have the courts "gotten around" it?

14th Amendment
* 1868
* Sec. 1: "No State shall … deprive any person of life, liberty or property, without due process of law;" (due process clause)
* "nor deny to any person within its jurisdiction the equal protection of the laws" (equal protection clause)

Protection from the State
* How can we use that to stop states from harassing their people?
* Selective Incorporation: Many rights have been "incorporated" into the 14th to protect people from the states
* Note: it is still technically correct to say the Bill does not apply to the state gov.

Interesting Examples
* Contraception
* Stripping
* Beer guzzling teens
* Pledge of Allegiance
* Carnal Knowledge