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86 Cards in this Set
- Front
- Back
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When did the highest rate of state law invlalidations occur?
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Between the 1960s and 80s. (Warren and Burger Courts)
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Conpared to federal laws, how many state statutes and local ordinances are overturned every year?
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17 every year, this is 8x the number of federal laws overturned.
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What is statutory interpretation.
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The courts interpretation of the meaning of statutes. It has a much greater impact on shaping public policy that when it strikes down a law.
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Half of courts decisions do not involve juicial review but ________.
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Statutory interpretation.
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How does the congress and the SC interact on statutory interpretation?
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Congress sets forth broad contours of the law, and others fill in the gaps.
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What is the Comiskey argument?
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Is there really a CM problem? There are philosophical and factual probelms with the Counter Majoritarian thesis.
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According to Comiskey, what are 2 of the factual flaws associated w/ CMD thesis?
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1) Most constitutional Qs decided by non-SC bodies.
2) Even when court strikes something down, it creates constitutional dialogue, not a dead-end. |
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According to Comiskey, what are 3 of the Philosophical problems with the CMD thesis?
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1) JR is not antithetical to democ.
2) Political branches generally support SC's political independen 3) Political branches sometimes want court to exercises JR. |
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What are the 2 parts of judicial activism?
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1) Judicial rultings that conflict with other branches policies.
2) Rulings that dicide on issues that needn't be addressed. |
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What are the 2 parts of judicial restraint?
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1) Deference to policy decisions.
2) Refraining from making unnecessary rulings. |
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What is the "Counter-majoritarian Difficulty" problem
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How to justify Judicial Review in a democratic system of government.
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Who coined the term judicial review?
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Alexander Bickel
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What was Marbury seeking in Marbury v Madison?
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Marbury was seeking a writ of Mandamus compelling Madison to deliver his court appointment papers.
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What does mandamus mean in Latin?
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We command.
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How did Marshall get out of Marbury v Madison (1803)?
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A writ of mandamus can only be issued in an appeals court. SC heard the case in its trial court capacity. Argued that the Judiciary Act of 1789 was unconstitutional.
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Where does Judicial Review originate?
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From Marbury v Madison 1803. CJ Marshall argued that the Judiciary Act of 1789 was unconstitutional as it broadened to SC's power beyon Article 3.
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What can the SC declare unconstitutional?
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laws, any govt policy, practice, action, decision, state laws, administrative regulations.
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What is JR?
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The power to overturn, or validate thae acts and policies of other policy makers based on the Constitition.
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How often does the SC partially or completely overtun a federal law?
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Every 1.5 years. Overturns state laws 8x more often.
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What are the 2 non-legal theories of judicial decision making?
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1) Attitudinal model.
2) Strategic Model. |
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What is the Attitudinal Model (AM)?
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A non-legal theory of judicial decision making. A statistical model. Predicts justices votes in a case based on numerous variables. Primarily decided based on policy preferences.
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What are policy preferences?
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They are positions on specific policy issues. Justices votes are placed on a liberal-conservative continuum.
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What are the assumptions of the AM?
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Justices ideologies are stable and do not change. Justices vote however they want, according to favorite PP.
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Why do AM argues that law cant explain a case's outcome?
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Because judges can disagree over meaning of law. Laws are indeterminate if same words lead to different responses. Law is merely a facade to cover PP.
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What are the 3 limitations of the AM?
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Doesnt work on non-unanimous.
Cases dont always have clearly liberal or conservative positions. Justices have changed. |
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What are 2 cases that do not have clearly liberal or conservative positions?
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Bush v Gore, Gonzales v Raich.
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how has history proved the AM?
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Republican presidents, led to more conservative justices, led to more conservative SC.
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How has history disproved the AM?
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Not a single Warren COurt legal precedent has been overturned. Courts decisions are not uniformly more conservative.
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What is the Strategic Model?
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Justices decide based on PP. But dont sincerely vote their PP. They act strategically to achieve their preferred outcome. Justices are constrained by internal and external forces.
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According to the Strategic Model what internal constraints are there?
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1) Law
2) Group decision making 3) Interpersonal relations |
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According to the Strategic Model what external constraints are there?
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1) Actors
2) Institutions |
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What are the powers of the CJ?
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Formal: Makes up initial version of discuss list. CJ directs the agenda. Chooses opinion writer.
Informal: Leadership. |
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How does congress influcne the court?
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Can pass legislation or ammend court.
Controls budget controls Appellate jurisdiction Can impeach |
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How does President influence the court?
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Appoints justices of his choosing.
Can target using influence. Can choose to igrnore a ruling. |
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Ultimately what is the most importnat question the justices must answer?
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What does the Constitution mean?
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What does it mean to decide a case on the merits?
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A judge decides a case "on the merits" when he/she bases the decision on the fundamental issues and considers technical and procedural defenses as either inconsequential or overcome
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What is the decision making proceudre?
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1) Submission of briefs
2) Oral arguments 3) Justices conference/vote 4) Assignment of opinion writer |
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What are the "merits" of cases?
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merits = the legal issues
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What may IGs and individuals submit to influence cases outcome?
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Amici Curiae (Friend of the court)
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What happens in oral arguments
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1) Attourneys have 30 minutes
2) justices interupt 3) 70% justices talk about questions neither side has raised. 4) May not influence final vote, but does influence opinion. |
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What factors influence assignment of the opinion?
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Distribution of work, areas of expertise, consensus buliding, furthering PP
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What are the 4 types of opinions?
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Majority Opinion
Concurring opinion Dissenting opinion Plurality opinion |
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What is a majority opinion?
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Represents the ruling that serves as precedent for further cases.
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What is a conurring opinion:
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If you agree with the outcome, but disagrees with the rationale behind it.
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What is a dissenting opinion
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If you disagree with the outcome.
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What is a plurality opinon
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When there is no majority. It is not a precedent, has no bdinding authority.
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What are the 4 types of judicial orders?
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1) Affirm
2) Reverse 3) Modify 4) Remand |
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What is required for a legal precedent?
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Majority of justices must agree on both outcome and the rationale.
Must have at least 4 yes votes. Need 6 to hear a case. |
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What percentage of cases are decided unanimously?
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25-40%
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What percentage of cases are 5-4?
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18-30%
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What is the strongest evidence that law constraints a justices decision?
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When a justice takes a position contrary to to their PP.
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What is Stier and Breeners argument?
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Does Precedent influence voting? Yes! Immersed in a clutlure. Impossible to maintain two sets of books. Follow precedent even if you disagree.
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What are the 4 schools of constitutional interpretation
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1) Textualism
2) Plain Meaning/Literalism 3) Original Intent 4) Living Constitution |
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What is textualism
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arguably all schools are textualist. Seek to interpret meaning of the text.
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What is Originalism?
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Aka Framers intent, argues that language should be based on framers understanding. IE death penarly isnt unconstitutional.
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What is literalism?
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Doesnt care about anyones intent. What is the literal meaning of the language. There are 2 schools, historical literalism and contemporary literlsm.
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What is the Living Constitution
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COnstitution should be intepreted using words as understood today. Evolving standards of decency.
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Where is the fundamental divide in legal interpretation of the constitution?
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Advocates of orignalism vs a living constitution.
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How many cases does the court decide a year?
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80 out of 7000+ seeking a writ of certiorari.
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What does it mean for a litigant to petition for a writ of certiorari?
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Seek review by court, to appeal a lower courts decision that the party disagrees with.
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What is the cert process?
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How the justices choose what cases to hear.
1) Clerks screen petitions 2) Selected cases placed on discuss list 3) Justices select a final list |
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How common are ordinary litigation type cases?
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They are the majority of cases.
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How can interest groups be involved in litigation process?
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Can file lawsuits. Can sponsor a party, provide costs, can submit amici curiae briefs
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What percentage of cases dont make it onto the discuss list?
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70-80
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What is the rule of 4?
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To hear a case, at least 4 justices must vote yes to hear it. (be granted a writ of certiorary)
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What is Rule 10?
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Court will review a case if lower courts have conflicting rulings.
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What attourneys appear most frequently before the supreme court?
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Attorneys from the SG
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Who does the SG represent
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The federal government (President, Congress, federal agencies)
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How often is the federal government involved in SC cases?
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A litigant in 40, involved in 85%.
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Why is the SG special?
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10th justice. A legal advisor to the court on behalf of the govs interest.
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Since 1960s what has happened to # of peititions?
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Doubled, due to changes in society. Rights concisousness, litigation by IGS, expanding federal govt.
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What is the SCs current agenda?
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Evenly divided between constituonal and statutory cases. 50-60% involve civil liberties. 10% fedralism
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What have been the long term changes in the courts agenda?
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1776-1940: Federalism and Economic regulation.
1960s>: Civil liberties replaced. |
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What article of the const gives SC its jurisdiction?
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Article 3.
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What is the original jurisdiction of the SC?
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Disputes between states, between state and fed govt, involving foreign diplomatic personel
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What is the Appella jurisdiction
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all decisions of fed court of appeals
matters of fed law special 3 judge fed dist courts |
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In what 3 ways the court a legal institution?
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1) Decisions are based on existing law, cases or statutes
2) Even political issues are in the context of legal arguments 3) Interest groups confined to legal chanels. |
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In what 3 ways is the court a political insitution?
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1) It is a branch of the federal government.
2) It makes decisions on issues affecting government policy 3) Personal values affect how they decide cases |
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How is the courts role in policy making constrained?
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1) #areas very few.
2) Constraint of legal training. 3) Other policy makers |
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How manby ases fall under discretionary jurisdiction?
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Since 1988, nearly all funder this. They may refuse to hear the case.
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What share of cases does the court actually hear?
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Only 1% of those seeking review.
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Since the 1960s, what sort of careers have justices had?
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Usually been sitting judges.
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How are justices confirmed by the senate?
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Advice and consent, 51% majority vote.
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What is the Judiciary act of 1789?
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COnstitution gave congress power to create all other federal courts. Thats what this did.
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What did CJ marshall do?
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Dominated court. Made it coequal, expanded power of the fed government in rlelation to the states
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current justices?
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roberts, scalia, kennedy, thomas, ginsburg, breyer, alito, sotomayor, kagan
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