2.2 Judiciary Lecture Outline
The Judiciary
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Constitutional Intent
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Federalist 78- Alexander Hamilton-Judicial Review-
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“Independent judges were needed to guard the Constitution and rights of individuals.”
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“Judges needed to be placed above the fray of politics.” “Least Dangerous Branch”
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All Federal Judges are appointed by the President and approved through the Advice and Consent of the Senate.
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Article III -Judiciary
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Judiciary Act 1789
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Supreme Court
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Five justices and a Chief Justice
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Circuit Court
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Geographic sections of nation
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SC Justices would “Ride circuit” when the court is not in session to hear cases on appeal.
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District Court
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Minimum of one per state
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Evolution of the Court-Court Packing and Judicial Review
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Washington appoints six Federalists to the first Supreme Court
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Judiciary Act 1801-
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Adam’s Midnight Judges
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John Marshall from Secretary of State to Chief Justice of the Supreme Court
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Reduce number of Supreme Court justices to six
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Keep Jefferson from getting the next appointment
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Marbury v. Madison (1803) “The case of the missing commissions”
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Marshall Created the problem, and now he will solve it
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Judicial Review- created by Marshall
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Judiciary Act 1803
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Jefferson Reverses Adam’s Intent
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Court Packing Presidents
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Washington- Six Federalists
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John Adams- Midnight Judges
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Franklin Roosevelt- New Deal Debate
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Ronald Reagan- Reagan’s Revolution – Judicial Devolution
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Significant Chief Justice Era’s
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Marshall Court- Nationalism
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Taney Court-Duel Federalism
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Taft- Hughes- Substantive Due Process- Property Rights
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Warren Court- Due Process Model- Cooperative Federalism
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Burger Court- Roe v. Wade and transition for Liberal to Conservative Era
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Rehnquist Court- Crime Control Model- New Federalism
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American Legal System
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Trial courts
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Evidence, juries, guilt or innocence
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Grand Juries v. Petite Juries
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Appellate courts
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Questions of procedure and constitutional substance involved during the trial court
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Jurisdiction
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Original jurisdiction
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Initial court of authority
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Appellate jurisdiction
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Law
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Criminal-Public Law
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National or State
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Civil- Private Law
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Federal Court System
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Constitutional or Article III Courts
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Supreme Court
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Circuit Court
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District Court
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Legislative Courts
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Congressional use of implied powers to create courts for a specific purpose
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Territorial Courts
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Tax Courts
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S. Court of Veteran’s Affairs.
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District Courts
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Minimum of one per state-currently (2011) 94 courts in operation.
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Single judge hears a case involving one of the following
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Federal government as a party
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A federal question or claim under the Constitution, treaty, or Fed statute
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Civil case above $50,000
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Appointed by District Judge to “help” with legal issues.
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Federal Magistrate-
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Special Master
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Federal Prosecutor-
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S. Attorney under the Direction of the U.S Attorneys General
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Circuit Courts or Courts of Appeal
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Eleven Circuits
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Hears appeals from the District Courts
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179 Judges each Circuit headed by a Chief Judge
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C. Circuit
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Regulatory Commission and Agencies
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NLRB and SEC
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S. Court of Appeals for the Federal Circuit
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Patent, Contract, and Financial Claims
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Decisions
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Three-judge panels
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En Banc-Any judge on the Circuit may sit in on the case (HOT CASES!)
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No Original Jurisdiction
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There are no trials at this level, only appeals.
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C. Court of Appeals
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Appeals from Administrative Agencies
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Second most important court in nation next to Supreme Court
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Makes Administrative Policy through its rulings
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Presidential priority in appointments
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Court of Last Resort
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If the Supreme Court does not grant review, then the Circuit Court ruling is the final decision. Therefore, the in a period of limited review by the Supreme Court (Rehnquist) the Circuit Courts have become a de facto Supreme Court.
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Supreme Court of the United States
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Eight Associate Justices and a Chief Justice
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Original Jurisdiction (Article III)
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Two or more states
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Case involving the United States and a State
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Foreign Ambassadors or diplomats
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A state and a citizen of another state (state initiated)
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Appellate Jurisdiction
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Circuit Courts
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State Supreme Courts
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Court of Military Appeals
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Judicial Selection
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Highly Political- Appointed by the President and approved the Senate.
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District and Circuit Appointments
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Senatorial Courtesy
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Supreme Court
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President’s selection through Attorney’s General’s office and Party.
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Nomination Process- Highly Partisan (used for all federal Judicial nominations)
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Justice Department and Senators advance names of candidates to President
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Investigation and background check
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Reagan- extreme “litmus test” of conservative ideology
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President limits selections and makes decision
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Nomination is sent to Senate Judiciary Committee
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ABA rates the candidate.
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Candidate makes “good will” visits to members of the Judiciary Committee
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Interest Groups take a position on candidate, lobbies senate and public.
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Senate Judiciary Committee
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Holds hearing on candidate
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Holds a vote on nominee (Recommend or Disapprove)
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Senate holds a floor vote on nominee.
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Power in process
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Senate Judiciary Committee Chairman
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May refuse to schedule a vote (personal veto)
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Senator Eastland- Mississippi- Chairman for 21 years. Actively kept African Americans off the Federal bench
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Home state Senator may veto selection (Blue Slip)
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Interest Groups
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Bork- National Television Campaign
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Thomas- NAACP campaign against approval
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Criteria for Judicial Selection
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Ideology
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Competence
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Political Patronage “Party Pie”
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Reward
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CA Governor Earl Warren was given Chief Justice for “delivering” CA during election
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Religion
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Catholics are against Abortion- Scalia
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Jewish “Seat” on the Court- Brandeis, Frankfurter, Goldburg, Fortus, Ginsburg
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Race, Gender, Ethnicity
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Black “Seat “ Thurgood Marshall –Clarence Thomas
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Woman’s “Seat” Sandra Day O’ Conner, Ruth Bader Ginsburg
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Hearing Cases- “The First Monday in October”
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Original Jurisdiction
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Appellate Jurisdiction
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“Exhaust all lower courts.”
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Appeals are filed
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Reviewed by law clerks
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Influence by Solicitor General
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Rule of Four
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Appeal or Writ of certiorari- to be informed
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In Forma pauperis- In the form of a pauper.
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Interest Groups fund many cases- ACLU, NAACP
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Oral Arguments and Decisions- “Oyez, Oyez, Oyez”
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Legal Briefs are filed in advance
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Justices have read arguments and have prepared questions
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Half hour arguments per side.
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Justices retire to conference and vote
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Judicial Opinions
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Majority- Winning side
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Dissenting- legal argument in opposition
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Concurring- agreement in end result, but using different reasoning
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Plurality-more than three
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Per curiam- unsigned opinion
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Size of ruling 9-0, 5-4 and impact
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Politics of Judicial Rulings
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Judicial Activism-Judges should use theirs powers broadly to further justice
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Judicial Restraint- Judges should not over-rule decisions of other branches
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Influence on Rulings-Extra-legal factors
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Behavioral
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Political Ideology
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Attitudinal/Strategic Model- personal preference towards a case and/or the judicial/legislative or judicial/executive relationships.
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Public Opinion
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Solicitor General
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The President’s lawyer in the Supreme Court
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The Tenth Justice of the Supreme Court
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Serves “At the pleasure of the President”
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Originally a non-political position
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“A small specialized law firm within the Justice Department”
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Handles all cases involving the United States in the Supreme Court
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Advises the Supreme Court on which cases to hear
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Gets over 80% of its cases into Supreme Court
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Files Amicus Curiae Briefs on behalf of United States
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“Friend of the Court” A legal argument to influence the outcome of a case.
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A lobbying tool that places the U.S. government into many cases.
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Political Role: Solicitor General is often “forced” to take a political position on a case rather than a legal one.
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Rex Lee- Solicitor General to the Reagan administration on the many political issues he was forced to take. “I’m not the pamphleteer general, I’m the Solicitor General.
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Reagan administration had a set of “agenda cases” which it would bring into the Supreme Court either as a case or through Amicus Curiae.
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Judicial Policy-Making
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Power of National Supremacy
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Power over Legislative and Executive decisions
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When Courts rule on and Constitutionality of an action, they are making policy.
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Brown v. Board of Education- Foundation for Civil Rights Movement.
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Miranda v. Arizona- Due Process model for procedures
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Aderand v. Pena- Reverse discrimination model.
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Precedent- stare decisis
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Reversing precedents
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Plessy v. Ferguson to Brown v. Board of Education
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Judicial Implementation
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Brown v. Board of Education
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Brown II- “All deliberate speed”
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Little Rock High School
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Politics of the Judicial Branch
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Court Packing
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All levels
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Judicial Selection
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Political Ideology
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“litmus test”
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Solicitor General
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Case Selection
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Amices Curaie
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Informal Constitutional Amendments
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New Deal
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Alliances and Policy-Making
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Legislative-Judicial Laws made by Congress will be upheld by the Courts
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Executive- Judicial Administrative actions made by the Executive Branch will be upheld.
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Anti-Trust Law Changed by the “Chicago School” Judges
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Political Capital- Changes in the Courts come at “no cost” to the President
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Brown v. Board advanced Civil Rights and did not cost the President votes.
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Judicial Devolution and New Federalism
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Implementation of new judicial interpretation through the courts.
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Judicial Strategy- How to change law in America
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Single Party wins White House and Senate.
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Appoint ideological judges to the federal bench.
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Supreme Court
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C. Circuit Court
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Target Circuit Courts
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Senate Judiciary Committee approves appointments.
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Solicitor General “selects” agenda cases to be brought before the court.
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Executive Branch issues new “rules” in Administrative agencies
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Ideological Court rules favorably in these cases.
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New policy is implemented
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Download SabatoOutline.10._Judiciary.12.pdf
Sources of American Law.pdf Download Sources of American Law.pdf
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