Thursday, December 4, 2008 Notes

The consequences of judicial decisions
1) Lawsuits are just the tip of the iceberg; most disputes do not end up in court.
A. Many civil cases end with settlements out of court.
B. Most criminal cases end by plea bargaining, in which defendants admit guilt, usually to a lesser charge and in return for some reduction in punishment.
C. The fact that a judge sentences a defendant to a period of imprisonment or a jury awards a plaintiff $1,000,000 is no guarantee that the offender will serve that time in prison or that the plaintiff will receive payment.

2) The Supreme Court relies on others to implement its policies; the impact of its decisions reaches far beyond the parties involved.
A. The creation of a majority or a unanimity on the High Court forces justices to compromise. Ambiguity may be one way to hold a coalition together, but it also creates uncertainty about implementation.
1) Some lower court judges dragged their feet when faced with enforcing the Courts “all deliberate speed” desegregation order of the Brown decision.
2) School prayer continued in many places despite the Supreme Court’s ban. Some communities interpreted the decision to mean a ban on compulsory prayer, not voluntary prayer.

B. The Supreme Court confronts issues loaded with conflicting values or fundamental political beliefs; its decision has impact beyond the immediate parties.
1) The Court’s decision in Roe v. Wade legalized abortion in 1973 and generated heated public reaction, including piles of hate mail and proposals to overturn the decision by constitutional amendment.
2) In 1989, the Court abandoned its strong defense of abortion rights by recognizing the government’s power to limit the exercise of the right.

3) Despite its seemingly undemocratic character, the Supreme Court is not usually out of line with national public opinion.
A. The Court is insulated from public opinion because:
1) It is appointed, not elected.
2) Members serve life terms.
3) The Court can control its own docket or agenda.
4) Salaries cannot be reduced.
5) The Public has limited access to Court proceedings.

B. A study of public opinion polls from the mid-1930s through the mid-1980s revealed that the Court reflected public opinion majorities or pluralities in over 60% of its rulings.

C. This convergence is not a coincidence.
1) The Court shows deference to national laws and policies, which typically reflect public opinion.
2) The Court moves closer to public opinion during times of crisis.
3) Rulings that reflect public opinion are subject to being revisited less often than rulings that are at variants with public opinions and…

D. The Court is kept from deviating too far from public opinion because:
1) The appointment and/or confirmation process
2) The Court relies on other public officials to execute decisions
3) The Supreme Court can be overruled with new laws or constitutional amendments.
4) The Court is concerned for its reputation both individually and as an institution.
5) Justices can be impeached.
6) Congress can change the Supreme Court’s appellate jurisdiction and/or change the number of justices on the Court.

The role of courts in American democracy
1) The majoritarian view of democracy defines judging to the letter of the law.
2) The pluralist view of democracy regards judging as simply another form of policymaking; individual values and interests of judges should advance the different values and interests of the population at large.
A. This view is supported by the procedure called a class action, in which claims or defenses of similarly situated individuals are assembled so that they can be tried as a single lawsuit.A class action makes it possible for people with small individual claims and limited financial resources to aggregate their claims and resources and thus make a lawsuit viable.