1. The development of the Federal Courts
1.1. judicial review: the power of the courts to declare laws unconstitutional
1.2. judicial restraint approach: the view that judges should decide cases strictly on the basis of the language of the laws and the constitution
1.3. activist approach: the view that judges should discern the general principles underlying laws or the constitution and apply them to modern circumstances
1.4. "necessary and proper" enables the judges to declare an act of congress unconstitutional
1.5. the power of the federal government to regulate commerce among states established
1.5.1. Robert Fullton, inventor of the steamboat had a monopoly throughout rivers in NY and NJ, the judiciary claimed this as interstate commerce
1.6. supremacy of federal government is largely unquestioned
1.6.1. Jeffersonian Republicans
1.6.2. established by John Marshall and the civil War
1.7. Government and the economy
1.7.1. the court revealed s strong though not inflexible attachment to private property
1.7.2. protecting private ownership
1.7.2.1. 14th amendment
1.7.3. the supreme courts determines what is resonale regulation
1.7.4. issue of the time: whether the economy could be regulated by state and federal governments
1.8. Government and Political Liberty
1.8.1. after 1936 the supreme courts stopped imposing any serious restrictions on state or federal power to regulate the economy
1.8.1.1. left that to legislatures
1.8.2. court shifts attention to personal liberties and becomes active in defining rights
1.8.3. court established tradition to deferring to the legislature in economic crisis
1.9. The revival of State Sovereignty
1.9.1. supreme courts rules that states have the right resist some forms of federal action
1.9.2. hint at some real limits to the supremacy of the federal government
2. The Structure of the Federal Courts
2.1. two kinds of federal courts
2.1.1. constitutional court: a federal court authorized by article III of the constitution that keeps judges in office during good behavior and prevents their salaries from being reduced
2.1.2. Legislative Courts
2.1.2.1. created by congress for specilaized purposes
2.1.2.2. judges have fixed terms
2.1.2.3. no salary protection
2.2. Selecting Judges
2.2.1. party background makes a difference in judicial behavior
2.2.2. senatorial courtesy: judges for U.S. district courts must be approved by the state's senators
2.2.3. the litmus test
2.2.3.1. presidential successes in selecting compatible judges
2.2.3.2. concern this emphasis might downplay the importance of professional qualifications
2.2.3.3. increasing importance of ideology
2.2.3.3.1. sharp drop in the confirmation rates of appeals court nominees
2.2.3.3.2. even more important with respect to supreme court appointments
2.2.3.3.3. courts of appeals: federal courts that hear appeals from district courts; no trials
2.2.4. legislative courts: courts created by congress for specialized purposes whose judges do not enjoy the protections of Article III of the constitution
3. The Jurisdiction of the Federal Courts
3.1. dual court system
3.1.1. one state, one federal
3.1.2. federal cases listed in Article III and the 11th amendment of the Constitution
3.1.2.1. federal question cases
3.1.2.2. diversity cases
3.1.2.3. all others are left to he state courts
3.1.3. some cases can be tries in either court
3.1.4. state cases sometimes can be appealed to the supreme court
3.1.5. exclusive federal jurisdiction over federal laws, appeals from federal regulatory agencies, bankruptcy, and controversies between two states
3.2. route to the supreme court
3.2.1. most federal cases begin in U.S. district courts, are straighforwards, and do not lead to new public policy
3.2.2. the supreme court picks the cases it wants to hear on appeal
3.2.2.1. uses writ of certiorari
3.2.2.2. requires agreement of four justices to hear case
3.2.2.3. usually deals with significant federal or constitutional question
3.2.2.3.1. conflicting decisions by circuit courts
3.2.2.3.2. state courts decisions involving the Constitution
3.2.2.4. only 3 to 4 percent of appeals are granted certiorari
3.2.2.5. others are left to lower courts; their results in a diversity of constitutional interpretation
4. Getting to Court
4.1. Deterrents
4.1.1. cost of appeals are high
4.1.2. each party must pay its own way exceot for cases in which it is decided
4.1.2.1. the losing defendant will pay
4.1.2.2. section 1983
4.2. Standing: guidelines
4.2.1. must be controversy between adversaries
4.2.2. personal harm must be demonstrated
4.2.3. being taxpayer not entitlement for suit
4.2.4. sovereign immunity
4.3. the court rejects 95 percent of applications for certiorari
4.4. class action suits
4.4.1. brought on behalf of all similarly situated
4.4.2. financial incentives to bring suit
4.4.3. need to notify all member of the class since 1974 to limit suits
5. The Supreme Court in Action
5.1. Oral arguments by lawyers after briefs submitted
5.1.1. questions by justices cut down to 30 minutes
5.1.2. many sources of influence on justices such as law journals
5.1.3. role of solicitor general
5.2. conference procedures
5.2.1. role of chief justice: speaking first, voting last
5.2.2. selection of opinion writer
5.3. strategic retirements from U.S. Supreme court
5.3.1. there had been a sharp increase in the rate of retirements
5.3.2. physical onerous
6. The power of the Federal Courts
6.1. the power to make policy
6.1.1. by interpertation
6.1.2. by expanding reach of existing laws
6.1.3. by designing remedies
6.2. measures of power
6.2.1. number of laws declared unconstitutional
6.2.2. number of prior cases overturned
6.2.3. deference to the legislative branch
6.2.4. basis for sweeping orders from either the constitution or interpretation of federal laws
6.3. views of judicial activism
6.3.1. supporters
6.3.1.1. courst should correct injustices
6.3.1.2. courts are last resort
6.3.2. critics
6.3.2.1. judges lack expertise
6.3.2.2. courts not accountable, judges not elected
6.3.3. various reasons for activism
6.3.3.1. too many lawyers
6.3.3.2. easier to get standing in courts
6.4. legislation and courts
6.4.1. laws and the constitution filled with vague language
6.4.2. federal government is increasingly on the defensive in court cases
6.4.3. the attitudes of federal judges affect their decisions
7. Checks on Judicial Power
7.1. judges are not immune to politics or public opinion
7.1.1. effects will vary from case to case
7.1.2. decisions can be ignored
7.2. congress and the courts
7.2.1. changing the number of judges
7.2.2. constitutional amendment
7.2.3. revising legislation declared unconstitutional
7.2.4. altering jurdistiction of the courts and restricting remedies
7.3. public opinion and the courts
7.3.1. defying public opinion
7.3.2. public confidence
7.3.3. change caused by changed of personnel and what government is doing
7.4. reasons for increasedactivism
7.4.1. growth of government
7.4.2. activist ethos of judges