Today we are looking at the judicial branch and the common law system we inherited from England.
Today we are looking at the judicial branch and the common law system we inherited from England. (1:05) Alexander Hamilton’s thoughts on the judicial branch are discussed in relation to Federalist 78 (1:34). We look at the process of becoming a judge and how tenure can be a controversial issue on the court. (3:40) Finally, the idea of an active vs restrained judiciary is examined as it pertains to policy making.(5:08)
Today’s question of the day is (6:24): The nature of a case will determine whether that case falls under state or federal court. What do you call this ability to determine which court system tries a case?
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Hi and welcome to the APsolute Recap: US Gov Edition. Today’s episode will recap The Judicial Branch
Lets Zoom out:
Unit 2 - Interactions Among Branches of Government
Topic 2.8-2.11
Big idea - Constitutionalism
Although described in much less detail than the other two branches of government, the judicial branch has the important job of interpreting whether laws and actions today can remain in place, or violate the Constitution. As mentioned in an earlier episode, the power of the courts has grown dramatically in modern times thus igniting a debate of how much of an active role in policymaking it should play.
Lets Zoom in:
In many countries the Judicial branch has far less power than here in the United States. We inherited our legal system from England, a system known as common law. Contrary to code law, where judges are simply applying the facts to the letter of the law, in our judicial system, judges are given the power to interpret the laws based on previous cases and the current facts at hand to develop new legal rules based on changing circumstances.
In Federalist 78, Alexander Hamilton noted that because it controlled neither the money nor true power, it would be the weakest of the branches. Still, the importance of it being independent and having the ability to check the other two branches was set for. Furthermore, the idea of judicial review, that the courts can rule laws and actions unconstitutional, implied by Hamilton in Federalist 78, was established early with the Supreme Court case Marbury v. Madison in 1803.
As mentioned earlier, judges are supposed to base their decision on the reasoning of prior cases, which is known as precedent. The principle of stare decisis binds the court to apply previous historical cases when circumstances are similar. However, courts can decide not to apply the previous ruling and set a new precedent if the reasoning behind the old case is no longer applicable. This of course can be subjective and often subject to the ideological make-up of the courts. More on that in a minute.
Judges in the federal court system are nominated by the President and confirmed by the Senate. Once appointed, they remain in that position for life or until they decide to retire. This lifetime appointment is called tenure, and while judges can be impeached, it has only happened once - back in 1805. Judges are supposed to be non-partisan and objective about each case that comes before the courts. However, the fact that judges are nominated by the President means that in modern times, the confirmation process becomes very political with presidents trying to affect the ideology of the courts for years to come. The popularity of the courts can change over time, especially with controversial cases or rulings that go against public opinion. When this occurs, there is little that can be done immediately unless a seat is vacated and filled with a judge who interprets the laws differently. At times, the president and the states might choose not to implement the court decisions. Afterall, the Court cannot write a new law, only say that the old one is unconstitutional. Similarly, Congress might choose to pass a new law or amend the Constitution in order to check the power of the courts. That being said, the courts’ decisions do affect policymaking and that has been a topic of major debate in the last four years.
Part of the debate is over the fundamental role of the courts and extent of their role in policymaking. Those who favor judicial restraint want a smaller role for the courts in deference to the legislature. They argue that since the judges are unelected, they have the least authority to make policy decisions. Constrastingly, advocates of judicial activism argue that the courts play an important role in recognizing those who might be marginalized due to their lack of influence in the political process.
Regardless, the death of Ruth Bader Ginzburg in September 2020 has left a vacancy on the court that once filled, will undoubtedly affect the cases before the Supreme Court for years to come.
To recap……
Federalist 78 outlines the idea of an independent court with lifetime tenure. The importance of the courts was solidified with the case Marbury v. Madison which created the precedent of judicial review and the ability to rule laws unconstitutional. While there is little that can be done to replace judges once they are appointed, there are a number of tools to restrict the power of the courts.
Coming up next on the Apsolute RecAP US Government Edition: The Bill of Rights and the First Amendment
Today’s Question of the day is about the court system.
Question: The nature of a case will determine whether that case falls under state or federal court. What do you call this ability to determine which court system tries a case?