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(Describer) Titles: Founding Principles - American Governance in Theory and Action. Chapter Five: The Judiciary.

[birds chirping]

(Describer) Under a sign saying "Hubbard Hall: the Library of Bowdoin College", a man walks out between wooden doors.

Hi, I'm Andy Rudalevige-- Professor of Government at Bowdoin College. Welcome back to Brunswick, Maine, and Founding Principles. We've been making our way through institutions of the federal government. We find ourselves in Article III of the Constitution-- the judicial branch. Article III is fewer than 400 words; fewer than 300, if you take out the definition of treason. It creates the Supreme Court. Everything else--subject to what Congress may ordain and establish. It doesn't say how many members the Supreme Court is supposed to have. Alexander Hamilton argued in the Federalist Papers the judiciary would be the least dangerous branch to rights and liberties. Was he right? Not everyone would agree. Let's see why.

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(Describer) Against a parchment background, title: Chapter Five - The Judiciary.

Let's start with a brief sketch laid out by Article III. It does say federal judges shall be... ...at least assuming good behavior. The idea is to create an independent judiciary that can withstand political pressure. To reinforce that, Congress is not allowed to cut a judge's pay while she's in office. Now wouldn't an independent judiciary be too powerful? Again, Hamilton said no. He argued the nature of its functions kept the judicial branch safely checked. "It has no influence "over either the sword or the purse. It can take no active resolution whatever." In short, judges had no cash and no staff, so no worries. Like any branch, the courts have worked to protect and enhance their constitutional position. The Supreme Court building looks like a Greek temple-- white marble, nifty pillars, the whole deal-- it evokes the gods. You're to feel like divine justice is being done. Chief Justice John Marshall said, "Questions in their nature political can never be made in this court." But guess what?

(Describer) Supreme Justices are shown.

Do these folks look like gods to you? The judiciary is a political branch like the others. That doesn't mean it's partisan in the same way as elected branches. Politics is about who gets what and when and how they get it. Sometimes that "what" is money. Sometimes it's rights, the way a school system is run, or regulations that trigger even larger programmatic change. Sometimes it's justice. So judicial politics are sometimes retail, case by case, and sometimes wholesale, affecting lots of people at once. Don't forget either that interbranch maneuvering enters into the court's history pretty early on. In Marbury v. Madison-- the case in the first episode-- John Marshall claimed the power of the courts to assess the constitutionality of legislative and executive actions. He wrote... That line is repeated in so many court opinions it would break the Internet to count them. Courts have real power. I want to explore how they've used it. First, let's see what the judicial system looks like. What did Congress wind up ordaining and establishing?

(Describer) Title: What did Congress wind up creating?

The federal court system is only a small piece of the American court system. There are more than 50 million cases a year. That doesn't include traffic violations. Something like 95% of cases brought to court in any year are in state or county courts not in the federal system. It's worth noting many states have elected judges, which is a different model. While I'm talking about the federal courts, that's only part of the story. The federal system starts with the district courts. There's at least one of these in every state--94 in all-- with about 675 judges in total. They hear about 375,000 cases a year. Next up are the 13 courts of appeal with about 175 judges. Most of these are regional. They're circuit courts, after the days judges used to ride horses around to hear cases in different cities. The District of Columbia gets its own circuit, given how many cases arise. There's also a separate Federal Circuit, which deals with some governmental issues, like trade, patents, and federal employment. On top of this, of course, is the Supreme Court. We're used to it having nine members, but again, the Constitution doesn't specify this number. It's been anywhere from six, in 1789, up to ten during the Civil War. Once, Congress shrank the court, more or less out of pique, to prevent a president from getting to fill a vacancy. Its size has been nine since 1869. Franklin Roosevelt argued in the 1930s that it should be larger. He got a cold reception. No one has tried since. The Supreme Court has a power no other federal court does. It gets to choose its cases. This is called certiorari-- or simply granting cert. About 80,000 cases a year make it to state supreme courts or to the circuit courts. Just shy of 8,000 of those are appealed to the Supreme Court. A much smaller number, perhaps 800, get serious attention there. And these days, only about 80 are actually heard. This is a low number, historically. The justices heard 120 cases a year up to the late 1980s. Only a tiny number of cases that could make it to the Supreme Court do. These are cases where lower courts in different parts of the country have come to contradictory conclusions. A single ruling is needed, as with cases dealing with the Affordable Care Act. Or they are high-profile challenges to federal laws, with the 2013 case on the Voting Rights Act. Or, and maybe most often, they're both.

(Describer) Signs protest voter discrimination.

First, the court needs to decide whether there should be a case, whether the person or organization suing has actually been harmed. This is called standing. Though it sounds like a technicality, if you don't have it, the case gets thrown out. If there is a case, it might involve assessing regulations issued by departments and agencies. Or quite frequently, it deals with statutory interpretation. Each arises from the fact that the laws passed by Congress are usually quite vague. As actors in the executive branch fill in what they think Congress actually meant, others may disagree. And the courts wind up figuring out who's right. Finally...finally comes the big ticket item, judicial review, a la Marbury v. Madison-- deciding not what a law says, but what the Constitution itself allows. There are a number of ways judges make this calculation. One way, simply do what the court did before.

Precedent--embodied in the principle of stare decisis,

literally to " let the decision stand"-- is very important. But sometimes things have changed. Or frankly, the justices think their predecessors made the wrong decision. In such cases, some argue we should look at the original intent of the framers. What did they mean by due process of law, unreasonable searches and seizures, or cruel and unusual punishment? A variant of this question, but more restrictive, is to argue in favor of parsing the meaning of the text. Justice Antonin Scalia-- a proponent of this approach-- says that the court should simply... His point is to take issue with those who argue for a living constitution. The idea of this third method is technology and society have evolved in ways that require rethinking 18th-century conceptions. Justice Robert Jackson argued that... The nine members of the Supreme Court usually represent a cross-section of these approaches. They have important implications for policymaking. As should be clear, almost every year, cases arise that have a real impact on the kinds of power Congress and the presidency can exercise and the scope of liberties and rights across the United States. Alexis de Tocqueville observed long ago that... He was right then. He'd be even more right now, which means, as a sort of coda, the elected branches care about who winds up serving in this unelected branch. Presidents spend a lot of time picking judges they think will support their legacy after they've left office. Interest groups gear up to push their favorite candidates and block those they fear might overturn their preferred policies. Senators battle on the floor and behind the scenes in private deals and public debate. Oftentimes, this battle over the bench serves as a proxy war between the polarized parties. At best, this makes clear the stakes involved and the power invested in the judicial branch. At worst, well it risks making judges less independent and far more dangerous than the framers intended.

(Describer) Back outside...

At this point, the structure of government is in place. We've looked at key institutions and how they've evolved throughout political history. Think how this works together, how the public fits in, and does public opinion matter? How much power do special interests have? What kinds of policies have resulted over time? American politics is always changing, but the answers always start with our founding principles. Accessibility provided by the U.S. Department of Education.

(Describer) Titles: Written and Preformed by Andrew Rudalevige, Thomas Brackett Reed Professor of Government, Bowdoin College. Editorial and Production Assistance by Abigail McBride and Scott Schaiberger. Special Thanks to Clayton Rose, President, Bowdoin College. Special Thanks to Barry Mills, President Emeritus, Bowdoin College. A logo depicts a lower-case letter E in a purple shield with 1880 just above it. Beside it, title: produced by Emerson Productions. Bowdoin. Accessibility provided by the US Department of Education.

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