Ch 14 - Synopsis

Ch 14 Synopsis

The Constitution created only one court – the Supreme Court – and sketched the rough contours of federal judicial power. The real design took shape in the first Congress, and much of the handiwork can be seen in today’s court system. Congress created federal (national) courts that would co-exist with the courts in each state but would be independent of them. But the judiciary was not viewed as a powerful branch of government until John Marshall was appointed the third Chief Justice in 1803.
Marshall’s opinion in Marbury v Madison (1803) established the power of judicial review, the power to declare acts of coordinate branches (and acts of state government) void because they violate the Constitution. This power appears to conflict with democratic theory because an unelected branch can trump an elected branch in the name of the Constitution.
The federal courts form a hierarchy, with the Supreme Court at the apex, the courts of appeal in the middle, and the district courts at the base. Note that most litigation arises in state courts; federal courts have limited jurisdiction to decide civil and criminal cases. Policymaking in the courts occurs at all levels, but it is most pronounced in appellate courts, where the emphasis on judicial opinions enables judges to create precedents.
The Supreme Court deserves special consideration because the value conflicts inherent in American democracy often end up before the court’s nine justices. The Court is a national policymaker with far-reaching impact. The Court exercises influence in part through the power to set its own agenda; it is aided in this function by the solicitor general, who represents the federal government before the Court.
If presidents are successful in appointing judges who share their values, they can influence policy even after their term is over. Although this is true across the federal judiciary, it is especially pronounced for appointments to the Supreme Court. Judges (some more than others) exercise political power. Separation of powers and checks and balances frustrate representative government. Groups that failed to secure or protect their interests in then democratic branches can turn to lawyers and the courts. Pluralist democracy operates when groups press their interests on the government. The open access provided by the courts reinforces pluralist democracy.
Though judicial power runs counter to democratic theory, policies emanating from the Supreme Court rarely seem pout of step with majority sentiment or the trend toward such sentiment. There are some exceptions to this observation, such as the Roe v. Wade abortion decision. Recent decisions and changes in the Court presage a change on the abortion issue, however, perhaps one closer in step with majority views.
Judges confront new issues calling for the exercise of judicial power. With open access to the judiciary and the creation of new rights in the name of the Constitution, courts increasingly become arenas in the conflicts between freedom and order and between freedom and equality.