From b1919b7611f1bf05bc6ebc25108b6a30c05d66d3 Mon Sep 17 00:00:00 2001 From: Holden Rohrer Date: Wed, 7 Oct 2020 16:46:10 -0400 Subject: read docs and finished assgnment 2 in INTA --- rich/21_judiciary | 123 ++++++++++++++++++++++++++++++++++++++++++++++++++++++ 1 file changed, 123 insertions(+) create mode 100644 rich/21_judiciary (limited to 'rich/21_judiciary') diff --git a/rich/21_judiciary b/rich/21_judiciary new file mode 100644 index 0000000..cffee60 --- /dev/null +++ b/rich/21_judiciary @@ -0,0 +1,123 @@ +Federalist #78 +352 +Decisions about judiciary: +- Mode of appointment +- Tenure +- System of multiple courts' relations +353 +Appointment: +- "same with that of appointing the officers of the Union in general" +Tenure: +- indefinite "during good behavior" +- "always be the least dangerous to the political rights of the + Constitution." + - doesn't have power over sword (military) or purse (spending) + - judgments have no power w/o executive support +- Judiciary, although sometimes injust, is not injust to liberty +354 +- Better separated so judgments aren't all-powerful +--> Indefinite terms separate it from exec, legis. powers and form +"citadel of the public justice" +- courts have to review laws to make sure they are constitutional + - this does not imply superiority +355 +- "regulate... by the fundamental laws [constitution]." +- Constitution is thought of as the will of the people +- By convention, newer laws supercede older laws (of equal authority) +356 +- What happens if the courts exercise will over legislation? +"bulwarks of a limited Constitution against legislative encroachments" +- permanent tenure -> faithful, not political performance (of + constitutionality-checking) +wrt legislation, constitution is absolute, but not for the people, but +neither legislation nor justices can change the constitution +357 +Justices moderate laws, reducing those that harm specific classes of +people. +Any periodical appointment would make judges less loyal to the +Constitution. "Too great a disposition to consult popularity" +- Also expertise over the laws is very difficult. + - There are many because all cases need to be specified so they are + not adjudicated arbitrarily + - Again an argument for permanent terms +358 +GB has a similar institution of permanent tenure + +"The Court and American Life" from *Storm Center: The Supreme Court in +American Politics* by David O'Brien +>Abstract +The SC is not an apolitical body. +It is not entirely dispassionate and based solely on constitutional + review. +Brown v. Board of Education was delayed to accumulate more supportive + case law +The Court must maintain its own legitimacy +292 +Justice Frankfurter delayed it because of the importance of "timing and +public reactions" +293 +- Was merged with other similar cases from around the country +"The power of the court lies in the persuasiveness of its rulings" +- Agreement with Hamilton +Court decisions "are not self-executing" and thus rely a great deal on +public opinion. + Dredd Scott (ruled for slavery) was a "great folly." + Justices have given in to picketers outside of SC (questionable) +294 +- Resistance to Brown v. Board of Education was expected +- Implementations were difficult + - Mr. Emory Rogers, attorney for South Carolina, denies that South + Carolina would be able to implement integration. + - Court establishes a schedule of gradual integration of schools +295 +- Clerks don't want to explicitly sanction 12 year integration plan +- Black and Minton argued "the less we say the better off we are" + - "The others disagreed" +296 +- "the Court's bold moral appeals" +Ruling passed in 1954; only enforced by 1964 w/ Civil Rights Act. +- "required the cooperation and coordination of all three branches" +297 +- "The Court is almost powerless to affect the course of national + policy" -- Gerald Rosenberg +"Dynamic Court" can take on issues other branches can't, but +"Constrained Court" can only bring about change when institutional +incentives/restraints are absent. +- But Rosenberg underestimates the influence on society of the decision +298 +Court decisions change over time + +1. In Federalist #78, how do the justices remain the "bulwarks of a +limited Constitution"? Please cite the text in the construction of your +answer. + +The justices are able to enforce the "limited Constitution" because of +"the permanent tenure of judicial offices" (Federalist #78, 356). +Hamilton focuses his arguments largely on the independence of the court +from either the legislature or the executive branch, and he argues that +this independence from their appointment powers and their more momentary +politics makes the court more loyal to the Constitution. They +"regulate...by the fundamental laws" (Federalist #78, 355), Hamilton +claims, the fundamental laws being the Constitution as derived from the +will of the people. The justices have the power to pronounce a +legislative act "contrary to the Constitution" (Federalist #78, 354) +void, this constitutional power which has been given to the judiciary +protecting the Constitution by their judgments. + +2. Does O'Brien's argument reflect Hamilton's observations of the +Supreme Court being the weakest of the three branches? Please cite the +text in the construction of your answer. + +O'Brien agrees that the Supreme Court is the weakest of the three +branches. He also agrees that it is weaker than public opinion but +believes it is much less insulated than Hamilton does, possibly because +of largely different political circumstances and structures at these +documents' times of writing. "The judiciary alone could not achieve +desegregation," requiring "the cooperation of all three branches +(O'Brien 296). This implies that it is weaker because it cannot enforce +policies, but the specific case being observed shows that the +legislative being the strongest manifests power to the +executive/judicial with the Civil Rights Act of 1964 (O'Brien 296). +Politically, O'Brien believes the court holds little power but does +believe in its longterm sway of public opinion: "the Court lent moral +force and legitimacy to the civil rights movement." (O'Brien 298). -- cgit