-The Supreme Court policy making left many questions unanswered with the Roe case
-80% of the public approves of the if the woman's health is endangered or if she was raped or the baby was conceived out if incest or the the
unborn child had an abnormality
-49% of the public want legalized abortion where 39% want some restrictions on abortion
-9% of the public want abortion ban
-Congress enacted thirty laws restricting the availability of abortions-The Supreme Court argued for many years on the Roe case, the changed their decision many times, but finally President Clinton appointees finally reinforced Roe
-Congress barred the use of funds for programs for abortions
-Abortion played a big role in the presidential politicsex. Reagan and Bush supported a constitutional amendment "to restore protection of the right for unborn children"
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Ideological Compatibility and GeographyOff the Bench Activities
Religion, Race, Gender and Beyond
Packing the Court
Betrayed by Justice
Political Campaigning and Consulting
Independence and Accountability
In "The Cult of the Robe O'Brien discusses the Court and mainly appointees of the Court.
'Myth of Merit'
"The myth occassionally circulates that appointments should be made strictly on merit."
However, "the Supreme Court is not a meritocracy". This is so for essentially two reasons:1. the difficulties of defining merit"The selection of Supreme Court Justices is pretty much a matter of chance."
2. the politics of judicial selection
'Process of appointment'
Article II, Section 2:'Religion, Race, Gender, and Beyond'
"The president 'shall nominate, and by and with the advice and consent of the
Senate, shall appoint' members of the federal judiciary."
Federal Judgeships are opportunities ofr the Senate as well as the President to influence national policy and confer political patronage.
Applicants are screened by the ABA for an informal recommendation and an ehaustive FBI investigation is performed.
"Religion, race, and gender have historically been barriers to rather than bases for appointments to the courts."'Packing the Court'
Franfuten stated that such considerations are not only irrelevant for appointment to the bench, but they are mischievously irrelevant and that to appoint men on the score of race and religion is playing with fire.
"Religious and racial considerations, moreover, appear 'hightly indefensible and dangerous' to the extent that more qualified individuals are passed over."
O'Brien claims that the "presidential impulse to pack the court with politically compatible justices is irresistable."Excluding George Washington, FDR had more opportunities to pack the court than any other President.
-He attempted to expand the court to 15 Justices when his New Deal legislation was failing.'Betrayed by Justice'
-The Courts quickly reconsidered legislation affirming a major piece of New Deal legislation that is now known as the "switch in time that saved nine."
-Although he did not add new Justice seats, FDR did pack the Court before leaving office.
"Whenever you put a man on the Supreme Court, he ceases to be your friend." Truman'Political Campaigning and Consulting'
like most presidents, Truman expected loyalty, however, justices frequently disappoint their presidential benefactors."
O'Brien talks about the "off-the-bench activities" and he questions whehter the activities bring the Court into a political controversy. (page 96)'Independance and Accountability'
Justices enjoy a remarkable degree of independence ."Justices also look to their place in history: Like all political actors they desire, in the words of Adam Smith, not only to be loved, but to be lovely."
Removal from the office has never been a serious threat. (page 101)
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[Late in developing an institution]
-Although the Supreme Court is influenced by the issues and facts in society, instutialization establishes and maintains internal procedures and norms.[Growth of work post civil war]
-Began as the least organized and powerful of all branches of government.
-short sessions (used to be only 17 weeks a year; finally made as today in 1917- Oct-July)
-judges were required to ride the circuit
-could reverse each other's decisions
-felt more allegiance to their individual circuits than to the whole court
-no meeting place of their own, no offices
-John Marshall established some order, but the court remained unorganized for most of the 19th century.
-J.M. sought to promote "harmony of the bench"- unanimity
-Reconstruction made Washington a city, and the court's load increased.[Establishing a physical institution]
They met in the old Senate Chamber in the Capitol, but still had no offices.
-relationships among the court weren't strong, as they only saw one another in session
-operated under a "shared interdependence"- worked independently of one another at home as "nine little law firms"
-Taft lobbied for a "marble temple"[Information control and dissemination]
-and got it in 1925; he died before its completion in 1935.
-cost just under $10 million dollars
-Other justices saw it as an opulent place to meet and continued to work mostly at home until the Vinson Court (1946)
-Through the new building and the court's invalidation of early New Deal legislation, the court slowly moved from the "least dangerous branch" to a coequal branch of government.
-privacy has become a problem; clerks talk too much- to reporters, to each other[Informal groups in the workplace]
-Rehnquist made the court more accesible via public record, now there are tapes, manuscripts in the National Arhives, etc.
-even "Project Hermes", which transfers court record via electronic means.
-Even after all of this, they are still "nine little law firms," sometimes practicing against each other.
-decide together, each deliberates alone
-decisions are not made together, they are a tally of individual votes.
- 2nd Half starting on page 130
Justice & Company - Nine Little Law Firms
-- Aside from making the final decisions, justices primarily work independently of the others in the deliberation process.Law Clerks in the Chambers
-- The growing caseloads have created the need for more law clerks and secretaries. Justices require more time for reading and writing memoranda and opinions, leaving less time to talk with each other.
-- All Justices now have at least 3 law clerks to help reduce their workload. Most serve for one year. The justices select their own clerks depending on preference for 1. Certain law schools, 2. Special geographic regions, 3. Prior clerking experience, and 4. Personal compatibility.The Legal Office - A Tenth Little Law Firm
-- The duties of the law clerks vary. Most clerks research and draft opinions for the justice they work for. The justices then edit or rewrite the draft for review from the other justices. The clerks are usually responsible for checking citations and proofreading the final version of the opinion.
-- In the 1970s, a staff counsel was created because a more permanent staff was needed since law clerks serve for short periods of time. Staff counsel includes a legal assistant and a legal intern to recommend action on special motions and applications, advise justices on legal matters, and prepare memoranda.Administrative Staff
-- The court has five officers outside the chambers: the Clerk, Reporter of Decisions, Marshal, Librarian, and Administrative Assistant to the Chief JusticeThe Chief Justice, Administrative Assistant, and Public Information Officer
-- The Clerk collects filing fees, receives and records all motions, petitions, briefs, etc., and circulates those necessary items to each chamber. It also manages the docket and maintains the Supreme Court Journal, which contains the minutes of its sessions.
-- The Reporter of Decisions writes headnotes or syllabi, makes editorial suggestions, and supervises the publication of the Court's opinions.
-- The Marshall oversees building maintenance and security, and serves as the business and payroll manager.
- The Chief Justice is the executive officer of the Court. He has the bulk of the administrative duties. He usually has the most law clerks and secretaries and he has the Administrative Assistant to handle day-to-day administration and act as a liaison with judicial and legal committees, organizations, and interest groups.Managing the Caseload
-- The Public Information Officer deals with the press. It furnishes reporters with copies of opinions and speeches, and it maintains a room with copies of all filings for the use of the Court's press corps.
-- As the population increased and Congress gave government and special-interest groups more opportunities to appeal directly to the court, the Court's docket began to grow tremendously in the early part of the twentieth century.Alternative Institutional Responses
-- Congress passed the Judiciary Act of 1925, which extended the Court's discretionary jurisdiction to allow the court to set its own agenda and decide only cases of national importance. The only mandatory appeals the Court must now review are those that involve reapportionment, some antitrust matters, and cases under the Civil Rights and Voting Rights acts and the Presidential Election Campaign Fund Act.
- There are 3 main ways in which the Court has responded to the rising caseload: 1. A bureaucratic response - hire larger professional staffs and buy modern office equipment, 2. A jurisdictional response - enlarging the Court's power of discretionary review and creating new lower appellate courts so that justices can decide only those cases of national importance, and 3. A procedural response - changing of formal requirements and procedural rules in the screening and disposing of cases.
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The chapter starts out with Gideon v. Wainwright, Clarence Gideon was a fifty-one year old man accused of stealing change from a poolroom in Panama City. He could not afford to pay an attorney, he therefore was not able to have representation in the courtroom. In the process of his trial Gideon requested that an attorney be provided and he was denied by the judge. While Gideon was incarcerated he mailed a petition to the Supreme Court and changed history. The Supreme Court ruled in his favor.One hundred and fifty years ago, the court's docket did not include issues of personal privacy raised by the possibility of electronic surveillance and computer data banks, this is just to prove that as technology and society changes so does the courts case loads and what they are hearing.
Gideon's case was just a vehicle to more changes in American law. Congress established the practice of giving poor citizens the right to file without paying the filing fees. These fees can amount to a minimum of $600. When filing an appeal or petition for certiorari, they file affidavit requesting forma pauperis.The constitution stipulates some of the kinds of cases and controversies the court hears.
There is a requirement of real and adverse parties, this means that the court will not decide friendly suits. If the court is needed to settle a suit which both parties agree, court approves a special counsel or amicus curiae. Standing, of course, must also be present for the court to hear a case, the basic requirement is that individuals show injury to a legally protected interest. This claim of injury must be of a personal, and not official nature, with some sort of specialized interest of the individual. A case must present ripeness to be heard. If a case is not relevant at the time it will not be heard, this goes along with mootness if when the time comes for the case to be reviewed and it is no longer valid or of any worry it is a moot point and will not be heard. The court will also not decide political questions, that is for the congress.Looking at the historical perspective the court reversed itself on average about once each term between 1791 and 1998, last century were more infrequent.
One of the reasons for granting certiorari that the courts rules give is that "a federal court of appeals has rendered a decision [different from] another federal court of appeals on the same matter." When any appeal arrives at the court it goes directly to clerks, then is later sorted through by the justices if it makes it that far. The shows there are many steps a appeal must travel through, and how the court decides what to decide.
A. Justices meet alone in conference to decide which cases to hear.II. Rule of Four
B. Hold conferences on Wed afternoons to talk about cases argued on Monday and on
Friday to talk about cases argued on Tues and Thurs
C. Have 2 lists1. Discussion lists: motions to be discussedD. Heavy case load does not allow in depth discussion
2. Dead list: cases not worth discussion
A. Four justices must agree on which petitions to grantIII. Deciding cases without full consideration
B. join-3 vote - provides a 4th vote if others vote to grant review
A. summary decisions- decide w/o hearingIV. Agenda for Policy Making
B. do this to decrease case load
C. “GVR” order - send back to lower courts
A. Court sets own agenda for policy makingV. Review Denied, Justice Denied?
B select issues of only national importance
C. Encourages interest groups to litigate
D. Tend to choose gov’t cases for hearing
E. Agenda changes with composition of the court
A. Court decides about 1% of cases
B. Every case is given some consideration
C. Doesn’t accept frivolous appeals
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The court gives a full hearing to fewer than 100 of the more than 8,000 cases put on the docket each term. In cases that are given a full hearing there is an established system for each case to go through before it is heard.
First attorneys submit briefs declaring their arguments, then the court clerk circulates the briefs to each chamber and schedules a time for oral argumentation.In cases like Bowers vs. Hardwick vote changes made during this time can change the court’s position.
After oral arguments are heard the court takes a ‘conference vote’ in private. Votes made are notfinal until the court hands down a final opinion.
Because of this there is the possibility for Justices to change their minds and affect the courts decision. During this tentative time Justices write concurring and dissenting opinions.
Justice Powell originally votes to overturn the decision made by the lower court, and then changes his opinion to uphold their ruling.It is the court’s responsibility to hand down institutional decisions. Decisions should convey values of impartiality, unity and stability on the court.
Great lengths are taken to ensure that the final decision is from the court as a whole even though it is usually written by a single justice. Because of this, Justices often try to persuade as many other justices as possible to sign on to the court’s majority decision.In some rare cases all the justices may sign an opinion to emphasize their agreement.
Notably this occurred in Cooper vs. Aaron, the case that re-affirmed the court’s decision in Brown vs. Board, and in U.S. vs. Nixon.The Role of Oral Argumentation
In U.S. vs. Nixon several justices contributed large chunks of the final opinion, leading the Justice Burger to suggest that the entire court sign the opinion.
It is still a crucial part of the judicial process, though not nearly as much as it was in the 19th century. In the 19th century time for oral argumentation was practically unlimited.Conference on Merits
In 1848, however, argument was limited to eight hours, divided equally between the sides.
In 1871 the court established only two hours for each side.
Time for oral argument continued to decline until 1970 when it was established that each side will have ½ an hour.
As many as 180 cases could now be tried in a term, though the court now takes less than 100.
Oral argument generally takes place four months after the case is accepted.
The court can expedite this if the matter is especially pressing. Notably this occurred in Bush vs. Gore concerning the matter of recounts in the Florida election.
In the 19th century a small group of attorneys presented most of the cases before the supreme court, Daniel Webster being the most famous of this group. Quality of oral arguments has declined consistently, with more and more lawyers presenting to the court.
In 1980 the court revised its rules making it clear that the court would look unfavorably upon oral arguments read from a prepared text.
The court now issues a pamphlet advising attorneys of the preferences of the court. Some of this advice, on page 255 of the text, is very funny.
These are private meetings in which the justices discuss the merits of the cases heard.Opinion Assignment
This is also not as important now as it was in the 19th century given the huge number of cases appearing on the docket of the modern Supreme Court.
80% of these cases never make it to the ‘discuss list.’
Justices are far more likely to file separate decisions now than they have been before.
This is perhaps the most influential power of the Chief Justice.The Value of Judicial Opinions
When the Chief is in the majority on a vote he assigns the decision, when he/she is in the minority the senior most justice in the majority assigns the decision.
There are many different strategies for assigning these decisions.
Efficiency in their writing is very important as votes are not locked in until the decision is filed.
The drafts are passed around to each Justice for comment and revision before the final decision is presented.
The impact of the court’s majority decision has declined in the modern era as the number of unanimous decisions has dropped, and the number of individual dissenting and concurring opinions has risen.
The number of dissenting opinions had sky rocketed since the early days of the court.
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O'Brien Chapter 6 Outline- 1st half ( pg.319-350)
The Court and American Life
(Matthew F. Glarrow)
- power of the Court is in: the persuasiveness
of it's rulings, but mainly in the hands of other political institutions
and public opinion.
- Court's limited policy-making is illustrated in two cases:
1.)Dred Scott v. Sandford (1857)- Court attempts to answer, " the slavery question by judicial decision." 2.) Brown v. Board of Education (1954 )Opinion Days
- Washington v. Glucksberg and Vacco v. Quill- "court refused to extend it's 1990 ruling in Cruzan v. Cruzan, recognizing the right to die theory." Here Chief Justice Rehnquist, said that this movement should continue to move through state legislatures and the political process.
- before 1857, decisions were announced on any day.Communicating Decisions to the Media
-after 1857, decisions were only announced on Mondays- "Decision Mondays."
-in 1995 the Rehnquist Court, ended "Decision Mondays" and instead began immediately releasing (that same Friday afternoon) cases that were granted.
-weeks when justices hear oral arguments, decisions are announced on Tues. & Wed.
-1971- Justice Burger persuades others to only give brief summary announcements.
1) full text opinions are time consuming to read aloud
2) full text readings occasionally caused outburst of justices arguing amongst themselves, out loud, and at the bench.
- " Sir, we write the opinions, we don't explain them."- this was New Jersey State Supreme Court Chief Justices (Arthur Vanderbilt) response to a reporters request for further explanation of an opinion.- NO CAMERAS ARE ALLOWED INSIDE THE COURTROOM.
- members of the Court agree with Chief Justice Vanderbilt's quote.
- Reporters complain about the Court's secrecy and Justices complain their opinions are distorted by the media (unable to decipher Court's admittedly, sometimes, difficult wording).
- as a result of the petition of grievances Justice Burger received from reporters, now on opinion days, " journalist receive copies of the head-note ... summarizing the main points of the decision."
- The Court's expanded Public Information Office makes available: all briefs and filings, Court's conference list and final opinions, and even justices speeches.
- reporter's do not have as much access to the Court like they do Congress, the President, and the Executive Branch.Implementing Rules and Achieving Compliance
- public only learns of a few, usually the most controversial, of the court's rulings per term.
- only about half the reporter's covering the Supreme Court have law degrees, which often makes interpreting opinions correctly, even more difficult with no legal background.
- reporter's often misunderstand opinions when they: include, "forms of obiter dicta- words entirely unnecessary for the decision of the case."
- "...justices must consider strategies for getting public acceptance of their rulings."Public Opinion and Partisan Realignment
- Virginia v. West Virginia (1911)- this is the origin of the phrase, "all deliberate speed," which was borrowed by justices giving their opinions in Brown II.
- this phrase furthermore is said to, "symbolize the Court's bold moral appeal to the country."
- Implementation of the Brown ruling, "was deliberately slow and uneven," as a result of the absence of federal leadership.
- de jure segregation-"segregation enforced by laws prohibiting the integration of public schools."
-The Department of Health, Education, and Welfare (HEW)- responsible for the "federal governments role in ending segregating schools."
- HEW was empowered with the ability: 1.) To regulate federal funding for school districts based on their compliance with (or refusal of) segregation plans. 2.) To "review plans for integration," and 3.) To issue guidelines regarding the integration of schools.
- Alexander v. Holmes County Board of Education (1969)- Court's brief per curiam opinion held that a lower court of appeals should, " deny any further southern school districts request to delay integration of schools
- The Supreme Court, on its on, has not proved to be an institution capable of achieving desegregation. "Enforcement and implementation required the cooperation... of all three branches."
- Missouri v. Jenkins(1990)(Jenkins I)- to fund desegregation plans, federal judges could order school boards to raise taxes.
- Board of Education of Oklahoma City Public Schools v. Dowell (1991)- after a reasonable amount of time of compliance from the school districts to desegregate " court-ordered busing may stop."
- Green v. Kent County School Board (1968)- lower courts should examine every part of schools; this ruling was reaffirmed by "the majority and the dissenters in Dowell;" this is the Warren Court's last major desegregation case
- Freeman v. Pitts- questioned the length of federal courts supervision of desegregation in DeKalb County, Georgia.
- Missouri v. Jenkins (1995)(Jenkins II)- lower courts had, "exceeded their power in ordering the creation of magnet schools and greater funding for the Kansas City school district..."
- "Two opposing theories of judicial power,"- 1.) "Constrained Court" 2.) "Dynamic Court"
- Gerald Rosenberg describes the Court as being, "impotent to produce significant social reform," and backs his argument by pointing to the resistance and forced compliance surrounding both Brown mandates.
- Public opinion curbs and balances the Court once it has gone, "too far or too fast in its' rulings."
- with the exceptions of during transition periods and critical elections, the Court has usually successfully stayed, " in step with major political movements."
- "the battle over FDR's 'Court-packing' plan and the Court's ' Switch in time that saved nine'," are evidence of the impression that the Supreme Court follows the election returns.
- 1935- 1936 " Court struck down virtually every important measure of FDR's New Deal program," however, in the spring of 1937, the Court handed down three rulings, "upholding major pieces of the New Deal legislation."
- Baker v. Carr- overturned laws denying equal voting rights; Justice Frankfurter feared that this case would turn the country against the Court.
- The Supreme Court takes on a role that is counter-majoritarianism.
- elections of 1860, 1896, 1932, 1960, and 1964- Court supported the reigning party by assisting with its' positions on critical issues.
- Justices are sensitive to the attitudes of the Courts immediate constituents:
solicitor general- "decides which and what kind of cases to take to the Court."
State attorney generals- responses reflect state/ local/regional reactions to the Courts rulings.
Other constituents include: The U.S. Attorney General, Department of Justice, counsel for federal agencies, and the entire legal profession.
- "Southern Manifesto"- 1957 encouraged resistance to Brown, and "challenged the authority of the Court."
O'Brien Ch 6 (second half)
-elected public officials are less concerned with the public opinion and more concerned with the immediate constituents such as: the solicitor general, attorney general, the department of justice, counsel for federal agencies, states attorney's general, and the legal professionCompetition and Compliance in Lower Courts
-solicitor general, attorney general, and the agency counsel interpret the court's decisions and advise the White House and agencies on compliance
-solicitor general decides the cases to take to court(tries to offer cases that help to achieve policy goals and those of the president
-attorney general, cabinet heads, and counsel extend court policies through advisory opinions, litigation strategy, and development of agency policy and programs
-the reaction of the 50 state attorney generals is important in determining the way they advise governors, mayors, police, chiefs, and reflects the state and local reactions to court rulings
-the court has no way of mobilizing support for its rulings
-justices usually maintain close relationships with members of the legal profession , this provides them with natural constituents
-the court is just an instrument of political power, justices remain dependent on the attitudes and actions of their immediate constituents, elected officials, and the dynamics of pressure-group politics and public opinion
-implementation depends on lower courts, Congress, and the President
-achieving compliance has been left largely to the lower courtsCongressional Action and Reaction
-when trial judges decide wide ranging disputes desegregation or the environment, community pressures confront them with tough choices
-the more responsive to the community value judges are, the more threatened their legitimacy as a dispassionate enforcer of the national law
-circuit court of appeals judges are geographically removed from local community pressure but the decentralized structure of the federal judiciary encourages them to apply court decisions in ways that accommodate regional and local values
-compliance with the court's decisions by lower courts is unvariably uneven, they may extend or limit decisions in anticipation of later rulings by the high court
-decisions handed down by the court on major issues are not necessarily applied by the lower courts, four-to-five decisions invite lower courts to pursue their own policy goals
-opposition and defiance by federal and state judges reflect their own policy preferences
-whether state judges oppose or comply with the court's leadership depends on their political views and the direction of the court's policy-making
-liberal lower courts tend not to withhold rulings of conservative higher courts as with Nixon, Reagan, and Bush appointees
-legislators have gone after the Supreme Court, on the floor of the Senate or House, rhetoric is cheaper than forming coalitionsCampaign Politics and Presidential Leadership
-Congress may try and put pressure on the court a number of ways:
*Senate may try to influence judicial appointments or impeach justices
*Congress may use institutional and jurisdictional as weapons against the court
*Congress has tried to put pressure on the courts when setting its terms and size and when authorizing appropriations for salaries, law clerks, secretaries, and office technology
*Article III of the constitution forbids reducing justices salaries, but Congress can withhold salary increases as punishment for rulings handed down by the court
*Congress may make exceptions to the appellate jurisdiction of the court in order to deny
the court review of certain kinds of cases
*they may also try to reverse the court by constitutional amendment
-congressional enactments and rewriting of legislation in response to the court rulings is more successful than court-curbing and constitutional amendments
-congressional reversals usually relate to non statutory matters involving administrative policies
-congressional reversals of statutory interpretations have been constrained by the lobbying efforts of the beneficiaries of the court's rulings
-recently there has been an increase in over-ruled statutory decisions as well as lower federal court decisions
-congress has the power to under cut or delay the implementation of the court's rulings and are likely to prevail or at least temper the impact of the court's rulings on major issues of public policy
-the continuing controversies over decisions striking down state laws on, desegregation, school prayer, and abortion are a show of how the court's policy-making may elevate issues to the national political agenda and influence American life
-the President is chief executive officer under the constitution and has the responsibility to "care that the laws be faithfully executed"
-as the only nationally elected official, he represents the national political coalition majority
-the court has been the focus of campaigns and power struggles but the President rarely defies a particular decision made by the court
-in major confrontations the President usually yields to the court
-they may however be reluctant to enforce rulings and thwart implementation without open defiance of the court
-Presidents may undercut Supreme Court policy making in both short and long term ways:
*issuing contradictory directions to federal agencies and assigning low priority to
enforcement by the Department of Justice limits court's decisions
*the long term influence depends mainly on the appointments to the court
*by his appointees the President has a chance to leave his mark on policy-making
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