Political Science 1100, Introduction to American Politics, April 14, 2014

Current events

Why are American Courts So Powerful?

1. The Fragile Authority of American Courts

2. The Supreme Court's Political Dilemma:

    Making the Most of Fragile Authority

    Marbury V. Madison, 1803:
    The nation’s first political crisis established Judicial Review

3. The Supreme Court: An antimajoritarian institution in a democracy

    A. The judicial branch is the least democratic branch

        1) Federal Judges Are Appointed For Life

        2) Decision-Making Is Secret

        3) the Supreme Court’s decisions do not have to be unanimous or explained

        4) The Supreme Court does not have to hear appeals

The Mystique of the law gives the courts power...

  ... but the Court restrains its use of its power because of

    - Congress

    - the president

    - public opinion

              -Korematsu v. U.S. (1944)


4. The Supreme Court at the Center of American Politics:

A. United States v. Nixon (1974), the constitutional crisis of the century

  The Dispute:

- Deciding U.S. v. Nixon

The Court rules unanimously against the president

"Our starting point is the pending criminal prosecution.

"The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises.

"[Executive privilege] must be considered in light of our historic commitment to the rule of law ... The ends of criminal justice would be defeated if judgments were to be founded o a partial or speculative presentation of the facts. The very integrity of the judicial system an public confidence in the system depend on full disclosure of all the facts ...

"We conclude that when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based solely on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial."    


B. Bush vs. Gore  (2000)


C. The Affordable Health Care Act (2012)


How the Courts Make Policy: The Case of Abortion

1. The Abortion Issue

   A. In the Early 1800s, Abortion Was Not A Criminal Offense


   B. But In The Mid-1800s, States Began To Make Abortion A Crime

      Why? Victorian Morals and Poor Surgical Techniques


   C. 1960s: Conditions Change Again

      - Surgery Improved
      - The Old Statutes Were Very Narrow
      - The Women's Movement
      - Griswold v. Connecticut Established A Privacy Right

2. Roe v. Wade

  A. Why Roe Sought an Injunction

  B. Why A U.S. District Court? Original Jurisdiction

  C. Why An Appeal ?

     No One Liked the District Court's Decision so they Appealed To
     The U.S. Fifth Circuit Court Of Appeals ...

     ... and Then To The U.S. Supreme Court

D. Key Supreme Court Policy Choices

- Decision #1: Should We Hear the Case?

      Does Roe Have "Standing"?

- Decision #2: Should we decide in Favor of Roe or Wade?

     The decision in favor of Roe

- Decision #3:

  Should we set policy guidelines for constitutional abortion rights for the whole nation ?

    Answer: Yes

    (a) First trimester: No interference
“the abortion decision … must be
left to the medical judgment of the
pregnant  woman's attending physician.”


    (b) Second trimester: State regulation

     “the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health.”


    (c) Third trimester: States can ban most abortions
 “For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”


 Politics and Abortion Policy after Roe


The Mobilization of interest groups


Elections matter  


Federalism matters - state actions.