Table of Contents


 The nature and function of the American Judiciary system is created with a basic aim to interpret analyze and resolve disputes in order to uphold the very essence of democracy. This system is designed in such a way that it works for the promotion of peace and order. The US government is structured in such a way that accommodates the nation, otherwise referred to as Federal, and the State.

The Federal Government is further broken down into substructure that includes: the Legislative Branch who takes care of promulgating statutes and policies. the Executive, which composes the President, cabinet agencies and military service, and finally the Judiciary Branch more commonly known as the courts.

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According to the article written by Samuel Kernel and Gary Jacobson published in the Logic of American Politics, the judiciary system of America is arguably the weakest of the three branches the American Constitution. 2006. This will be the very essence that this essay intends to advance, the nature, function and power of the American Judicial System.

A very sensational case that highlights the inherent and acquired power of the judicial system is the William Marbury versus James Madison case, which was a controversial issue regarding the interpretation of the exercise and purpose of the powers of the judicial branch.

This is a case that triggered the cause for a judiciary efficiency review, followed by a series of eye opening conclusions as to the conflict created between the political faction of the Jeffersonians and the Republicans. In a gist, this case began at the time of transition of government from George Washington to James Adam, where in the night before Washinton’s term ends, her attempted to fill in the vacancies by signing several appointments among which includes that of William Marbury.

This Signed commissions were said to have been delivered that same night however, it did not reach the office nor residence of the plaintiff Marbury. Demanding remedy, Marbury filed a case of Mandamus forcing the Secretary of State James Madison to deliver his commission as Justice of Peace.

It is noteworthy to point out that during which time, the succeeding government of Adam is set to implement the new system installing 9 judges assuming a lifetime term in the justice system, which deemed to be politically motivated maneuvering.


This was resolve by the decision held by Chief Justice John Marshall in 1803 emphasizing “that Madison should have delivered the commission to Marbury, but then held that the section of the Judiciary Act of 1789 that gave the Supreme Court the power to issue writs of mandamus exceeded the authority allotted the Court under Article III of the Constitution, and was therefore null and void” (Urofsky, 2004).

The main controversies of this case is the assumption of several powers of the Supreme Court, that includes the authority to declare acts of Congress, and by implication acts of the president, unconstitutional, if they exceeded the powers granted by the Constitution. More importantly, the Court became the arbiter of the Constitution, the final authority of the interpretation of document. As such, the Supreme Court became in fact as well as in theory an equal partner in government, and it has played that role ever since (Uforsky. 2004).

The Roe vs. Wade case, on the hand speaks of civil rights and liberties of a woman more specifically in the aspect of Pregnancy, childbirth and motherhood in the theme that promotes the exercise of the woman’s right to choose whether to pursue pregnancy into full term or the option to have the pregnancy be aborted within but not exceeding the second trimester or 6 months of gestation.

This was a case that ignited the rise of several convoluting issues according to religious, philosophical, humanitarian, medical and a lot more perspective. This created disparaging and divisive debates that lead to a complex drawn decision held by the Chief Justice Warren Burger concurred by the opinion elaborated by Justice Harry Blackmund, in which they ruled that the woman bears an inherent right to choose whether to pursue the pregnancy or otherwise (MS Encarta Online Encyclopedia. 2006). This therefore indicated the power of the court to consider and decide upon issues that may not at all be legislative related issues.

This further purports the vast extent of the scope of the power that should be taken into account by the justice system, The primary reason why the assigned judicator could not immediately rule upon this case, and further requires more instance of hearing debated issues, is the nature that takes precedence on not just political, bioethical, humanitarian reason, this involves, above all a decision about life and liberty that the court initially interpreted to be something outside their jurisdiction.

In the case of Brown versus the Board of Education, the court identified and defined the criteria by which ethnic, racial, cultural, religious and physical segregation becomes a violation of the 14th amendment of the US constitution which guarantees all citizens equal protection of the law regardless of skin color, religious affiliation, cultural, religious and or ethnic background, this is the case that laid the very foundation of the establishment of Human rights.

This marked the beginning of the maturation and clear cut understanding of the how the court should function and what the function is all about. The decision primed educational and social reforms with in United Stated and across the globe. This broke the struggle of human rights and brought democratic ideas that helped established peace and harmony.

Of the three cases mentioned, it is clear that judiciary system originated according to its most primitive interpretation of its function and purpose as a part of the constitutional system. It was restricted in the sense that it thought that they mere function of the court is confined into resolving issues related to the question of law, the interpretation of law, the application of law and even to the extent of elaborating, explaining and justifying the system it employs.

The decision making capacity of the courts is not only relative to cases involving disputes of its inhabitants or subject, it may extend even to the power to review the actions of the executive and legislative branches thus called a judicial review.

This is usually associated with the U.S. Supreme Court, a power possessed by most courts of law in the United States that exercises the power in ruling on the validity of state executive acts or state statutes, in terms of their interpretation of the constitution. Such is primarily base on the principle that a state law that violates the state constitution is null. Normally the U.S. Supreme Court cannot review such decisions unless the case clearly involves a federal constitutional issue.

Works Cited

Brown Foundation A Background Summary about the case Brown v. Board of Education.

Updated on 11 Apr. 2004. Accessed on 19 May 2006 on

Irons, P. A People’s History of the Supreme Court. New York: Penguin. (2000)

Kernel, S & Jacobson G. “The Judiciary”. The Logic of American Politics. Updated 16 Apr 2006. Congressional Quarterly Press. Accessed on 10 May 2006. from Urofsky, M. Basic Readings in US Democracy. Explanation and Background of Marbury vs. Madisson Case. James Madison Center. Updated 17 May, 2004. Accessed on 19 May, 2006 from

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The American Judiciary

I.The role of the courts in American government

A.American courts shape policies that form the heart of American democracy.

1.Because judges tend to accept the rulings of other courts in similar cases, judges in effect make policy with their decisions.

2.The Supreme Court, for example, makes fundamental decisions vital to the preservation of freedom, order, and equality.

B.The courts can undo the work of representative institutions.

C.This thwarts democratic theory, which argues that the majority should rule.

II.The conferral of power on the federal courts

A.The Constitution established “one Supreme Court” but left it to Congress to structure the federal judiciary.

1.The first Congress adopted the Judiciary Act of 1789. It provided for a system of federal courts that would coexist with the courts of each state but be independent of them.

2.In the first decade or so under the Constitution, the Supreme Court was not especially powerful.

a.The first chief justice, John Jay, resigned for lack of power.

b.Several statesmen refused appointment.

B.Judicial review led to the ascendancy of the Supreme Court.

1.The Court’s power was boosted under the fourth chief justice, John Marshall, who authored the opinion in Marbury v. Madison.

a.Marbury established the power of judicial review: the power to declare congressional acts invalid because they conflict with the Constitution.

b.Subsequent cases extended the power of judicial review to the invalidation of presidential acts (see Youngstown Sheet & Tube v. Sawyer).

2.The power of judicial review appears to run counter to democratic theory: an unelected branch (the judiciary) checks an elected branch (executive or legislature) in the name of the Constitution. (See Compared with What 14.1.)

3.The Supreme Court also exercises judicial review over state laws and executive actions. In short, the Court holds the power to invalidate actions of the states and actions of coordinate branches of the federal government.

C.Hamilton anticipated the power of judicial review and discussed it in Federalist No. 78.

1.He sought to minimize people’s fear of that power, declaring that the courts would be the least dangerous branch since they have “neither force nor will, but only judgment.”

2.Hamilton also pointed to two checks on that power: impeachment and constitutional amendment. But both require extraordinary majorities.

III. The organization of the court system today (see Figure 14.1)

A.The state courts

1.Each state (and the District of Columbia) has its own court system, and no two are alike.

2.State courts co-exist with the federal court system, and individuals fall under the jurisdiction of both.

3.The state courts handle and resolve the vast majority of legal disputes.

B.The federal courts

1.The federal courts are like a pyramid: the Supreme Court is at the apex, the U.S. Courts of Appeals occupy the middle, and the U.S. District Courts serve as the base.

2.There are ninety-four federal district courts and nearly 650 full-time district judges. There is at least one district court in each state. These courts decide criminal and civil cases.

IV.How the courts work

A.Court Fundamentals

1.Crime is a violation of the public order as defined in the criminal code. The code is legislation that regulates conduct and specifies sanctions for violations.

a.Government (usually state and local government) maintains order by prosecuting persons for violating the criminal code. These are called criminal cases.

b.Most criminal cases are prosecuted in the state courts. Some criminal violations-for example, possession of a controlled substance such as cocaine-are prosecuted in federal courts.

2.Civil cases stem from disputed claims to something of value. They involve private disputes arising from such matters as accidents, contractual obligations, and divorce. Government can be a party to such disputes.

3.Few cases ever go to trial. Most are cases settled out of court. some are abandoned.

4.When a judge decides a case, it is adjudicated.

a.To support their decisions, judges may give reasons in writing, called opinions.

b.If the circumstances of the case are novel, judges may publish their opinions, thus setting precedent and adding to the body of common, or judge-made, law.

B.The U.S. District Courts

1.There are 94 district courts. each state has at least one and no district crosses state boundaries.

2.Each case is heard by a single judge. depending on the nature of the case, there may or may not be a jury.

3.The district courts cover federal criminal cases, civil cases that allege violation of national law, civil cases brought against the national government, and some civil cases between citizens of different states.

C.Cases litigated beyond the federal district courts usually go to one of the regional appeals courts known as the U.S. Courts of Appeals.

1. There are thirteen appeals courts. twelve cover cases from geographic areas known as circuits.

2. Judges on these courts sit in panels of three. they aim at correcting errors in the lower courts and making policy through the opinions they write.

a.Opinion writing gives judges influence beyond the immediate case.

(1)A precedent is a decision in one case that provides a reason for deciding a similar case in the same way.

(2)Stare decisis, which means “Let the decision stand,” is decision making according to a precedent rather than some other rule.

b.Judicial policymaking occurs

(1)When judges interpret prior judicial decisions. This is known as common law or judge-made law.

(2)When judges interpret legislation. This is known as statutory construction.

(3)When judges interpret the Constitution. This is known as judicial review.

3.Because the circuit courts are not bound to consult with each other about application of the law, there may be variance in their interpretations. Such conflicts are corrected by review at the Supreme Court level.

V.The Apex: Access and Decision Making in the Supreme Court

A.The mottos inscribed on the Supreme Court building capture the Court’s difficult task: providing equal justice under law while making justice the guardian of liberty.

1.Flag burning as a form of political protest pits the value of order (government’s interest in maintaining a peaceful society) against the value of freedom (an individual’s right to vigorous and unbounded political expression).

2.School desegregation pits the value of equality (equal educational opportunities for minorities) against the value of freedom (parents’ interest in sending their children to neighborhood schools).

B.The work of the Court is determined by access.

1.The Court decides about one hundred cases a year, though it receives about seven thousand requests for review.

2.The Court’s jurisdiction falls into two categories: original and appellate.

a.The Constitution specifies the Court’s original jurisdiction. The Court is the first and only forum for the resolution of the very few original jurisdiction cases.

b.Appellate jurisdiction is subject to congressional control. it is also the primary source of cases entering the Court from state and federal courts. (See Figure 14.2.)

(1)Cases being appealed from state courts must have reached the end of the line in that system and must also raise a federal question, an issue covered under the Constitution, federal laws, or treaties.

(2)The Court exercises nearly complete control over its docket, or agenda.

(3)It takes the votes of four justices to grant a case full consideration. This is known as the rule of four.

c.The decision to grant or deny review is affected by a little-known executive official, the solicitor general.

(1)The solicitor general represents the federal government before the Court. His duties include determining whether the government should appeal lower court decisions and deciding whether the government should file a “friend of the court,” or amicus curiae, brief in an appellate court.

(2)Appointed by the president, the solicitor general is an advocate for the president’s policies, as well as an officer of the Court. His objective is to create a cohesive program for the executive branch in the federal courts.

(3)Given the solicitor general’s influence on the Court’s agenda setting, it is not surprising that they are often regarded as “the tenth justice.”

C.Once the Court grants review, attorneys submit written arguments (briefs). Oral arguments usually follow.

1.The justices reach a tentative decision only after they have met in conference.

2. How do justices make their voting decisions

a. The principle of judicial restraint maintains that legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they hew closely to statutes and previous cases in reaching their decisions.

b.The principle of judicial activism maintains that judges should interpret laws loosely, using their power to promote their preferred social and political goals (this approach may further either the liberal or the conservative agenda).

3.The voting outcome is the judgment.

4.After voting, the justices in the majority draft an opinion setting out the reasons.

a.The argument states the reasons for the opinion.

b.A justice can agree with a judgment for different reasons than those stated in the argument. This kind of agreement is called concurrence.

c.A justice can dissent if she or he disagrees with a judgment.

d.Both concurring and dissenting opinions may be drafted.

5.After the conference, the chief justice writes the majority opinion or assigns that responsibility to another justice in the majority.

6.We should expect typical political behavior from justices as they attempt to stamp their own policy views on the cases they review.

D.Although he is only one of nine justices, the chief justice has several unique and important functions based upon the authority of that office.

1.The chief justice may provide social leadership by generating solidarity within the group or by providing intellectual or policy leadership.

2.Through his or her power to control the docket and direct conferences, the chief justice may exercise control over the discussion of issues.

Parallel Lecture 14.2

In the first lecture in this chapter, we argued that the courts are powerful political institutions. We described the structure of the courts and their means of exercising power. Now that we have explained why judges are powerful political actors, we consider how a person becomes a judge, what the person does in the act of judging, and the relationship of the legal profession to the political system. We also confront the problem of political power exercised by institutions that lack strong democratic controls.

I.How does a person become a judge

A.The mechanics of appointment are nomination and confirmation.

1.The president makes nominations when vacancies or new positions occur in the federal judiciary.

2.The Senate must confirm the president’s nomination by a majority vote. This is known as the advise-and-consent function.

a.In accordance with the norm of senatorial courtesy, nominees for the district courts or the courts of appeals must be acceptable to the senior senator of the president’s party from the state in which the vacancy arises.

b.Senators have the power to stall or scuttle unacceptable nominees. (This is known as the blue-slip procedure.)

c.The practice of senatorial courtesy thus forces a president to share the nominating power with members of the Senate.

(1)The Justice Department now requires that senators submit more than a single name for a judgeship.

(2)President Bush asked Republican senators to seek out more qualified female and minority candidates. President Clinton accelerated that search.

3.The American Bar Association (ABA) is the largest association of lawyers in the United States.

a.Although the ABA has been stripped of its formal power to evaluate nominees for federal judgeships, it continues to make its opinions of nominees well known.

b.The ABA occasionally renders a “not qualified” assessment of a nominee.

c.For the most part, however, the vast majority of appointees have had the association’s blessings.

B.Recent presidents have made their marks on the federal judiciary.

1.Carter wanted to base appointments more strongly on merit. He also wanted the judiciary to be more representative of the general population.

2.Reagan did not share Carter’s second objective and appointed far fewer minorities and women.

3.Although Bush’s record in the appointment of minorities and women to federal judgeships was better than Reagan’s, neither approached Carter’s appointment record in this regard.

4.Clinton’s appointments stand in contrast to those of Reagan and Bush. More than half of Clinton’s appointees were minorities or women.

5.Political ideology lies at the heart of judicial appointments. presidents tend to appoint nominees who share similar value preferences.

a.The Reagan/Bush ideology-driven appointments will probably shape the judiciary into the twenty-first century.

b.Clinton’s nominees reflect his quest for greater ethnic and gender diversity on the bench.

C.Supreme Court justices exercise great power. their appointments become important political events.

1.Presidents are not restrained by senatorial courtesy when making Supreme Court appointments, but presidents probably face more restraint from public opinion when they make such appointments.

2.All told, 146 men and 2 women have been nominated to the Court. only about 1 in 5 has failed to receive senate confirmation.

3.Reagan appointed three new justices to the Court during his presidency: Sandra Day O’Connor, Antonin Scalia, and Anthony Kennedy. Scalia was appointed to fill the seat occupied by William Rehnquist, who was promoted to chief justice. All three can be regarded as conservative, given their value preferences. Two other Reagan appointees, Robert Bork and Douglas Ginsburg, failed to be confirmed by the Senate. (Ginsburg actually withdrew his own nomination before the vote came up.)

4.President Bush appointed David Souter and Clarence Thomas. Thomas barely gained the required Senate approval in controversial hearings after Professor Anita Hill, Thomas’s former assistant, charged that he had made unwanted sexual advances toward her while she was working for him.

5.Clinton appointed the second woman, Ruth Bader Ginsburg, to the Court, and also appointed Stephen Breyer.

6.It is difficult to predict how a person will decide once on the Court. The person’s earlier decisions as a judge in a lower court may provide some basis for such predictions.

II.The consequences of judicial decisions

A.Lawsuits are just the tip of the iceberg. most disputes do not end up in court.

1.Many civil cases end with settlements.

2.Most criminal cases end by plea bargaining, in which defendants admit guilt, usually in return for some reduction in punishment.

3.The fact that a judge sentences a defendant to a period of imprisonment or a jury awards a plaintiff $1 million is no guarantee that the offender will serve that time in prison or that the plaintiff will receive payment.

B.The Supreme Court relies on others to implement its policies. the impact of its decisions reaches far beyond the parties involved.

1.The creation of majority or 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.

a.Some lower court judges dragged their feet when faced with enforcing the Court’s “all deliberate speed” desegregation order of the Brown decision.

b.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.

2.The Supreme Court confronts issues loaded with conflicting values or fundamental political beliefs. its decisions have impact beyond the immediate parties.

a.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.

b.In 1989, the Court abandoned its strong defense of abortion rights by recognizing the government’s power to limit the exercise of the right.

C.Despite its seemingly undemocratic character, the Supreme Court is not usually out of line with national public opinion.

1.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 percent of its rulings.

2.This convergence is not a coincidence.

a.The Court shows deference to national laws and policies, which typically reflect public opinion.

b.The Court moves closer to public opinion during times of crisis.

c.Rulings that reflect public opinion are subject to being revisited less often that rulings that are at variance with public opinion.

III.The role of the courts in American democracy

A.The majoritarian view of democracy confines judging to the letter of the law.

B.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.

1.This view is supported by the procedure called class action, in which claims or defenses of similarly situated individuals are assembled so they can be tried as a single lawsuit.

2.Whether the U.S. Supreme Court leans conservative or liberal, each of the fifty states has a state supreme court that can fashion legal decisions that may move precedent in the other direction. The multiplicity of courts and levels of justice reinforce the pluralist model of democracy.

Judiciary Lecture #2

Supreme Court Decision Making

(Note: This lecture complements material in Chapters 14 and 16.)

I.When we think of the courts in our political system, we usually think in terms of court decisions. We think of the constitutional rulings in the great decisions that have changed law and politics in this country. Another way of looking at the court system is from the perspective of decision making. Political scientists examine the way the judges go about making their decisions in the cases before them.

A.Scholars who study judicial behavior are concerned with the way different factors influence decision making. (Our concern here is with multimember courts-those with a panel of judges, like an appeals court or the Supreme Court.) Some of these factors are

1.Leadership: What influence do formal and informal leaders have on multimember courts

2.Bargaining: What goes on between judges as they try to reach a decision What strategies do judges use to try to influence other judges

3.Ideology: How do the political views of the judges influence their judicial behavior

4.Background: What are the effects of religion, race, political party, gender, and other such variables on the decisions of individual jurists

B.None of this is to say that the law itself is irrelevant in the decision-making process. It is very significant. No judge ever considers a decision in a vacuum. He or she will look at precedent. Precedent is not always clear-cut, however, because the attorneys for both sides will cite precedents to support their arguments.

C.In discussing the different strategies and tactics that justices use in trying to influence one another, we begin with two premises:

1.Justices are policy oriented. They are not neutral on all the issues that come before them. They have views on abortion, the environment, civil rights, and so on, just as you and I do.

2.Justices are not equal in their intellectual ability, legal craftsmanship, persuasive talents, and professional esteem.

II.One strategy justices use to try to get the decision to follow their preferences is simply that of persuasion. That is, they push the merits of different legal arguments. The result is often bargaining and compromise.

A.When the justices of the Supreme Court meet in secret to discuss cases they have agreed to rule on, the votes they take at those meetings are not binding. The vote becomes fixed as the draft opinions are circulated and the justices

commit themselves to the logic and language of an opinion. The vote is final when the justices announce the decision in a case. Until that point, the vote-and the outcome-can change.

1.Because there may be a majority opinion, a minority opinion, and concurring opinions circulating, the authors of those opinions are in effect trying to nail down the votes of those who expressed sympathy for a particular view at the conference (meeting).

2.Sometimes a justice will be wavering, expressing sympathies for different arguments made at the conference. The author of an opinion might draft it with that justice in mind, using the logic most likely to win that vote. That logic may not be the argument that the author really wants to stress. If the Court seems split, with a 5-to-4 or 6-to-3 vote likely, the author may need to compromise on some major points to keep the majority intact.

3.In many instances, the initial decision reached in conference has been changed after some justices read the competing draft opinions that were subsequently circulated. Persuaded by the logic of the minority position, one or more justices switched their vote, and the minority opinion became the majority opinion.

B.What justices engage in, then, is intellectual bargaining. The process of circulating an opinion, which may go back and forth between author and other justices many times, is an effort to fit together the pieces of an argument that will attract a majority of votes. (It is a process not only of finding a majority but also of trying to keep other justices who voted the same way from writing a concurring opinion. Concurring opinions diminish the intellectual strength of a majority opinion, because they make it clear that the Court has not come up with a definitive ruling.)

III. One of the most interesting cases of intra-Court bargaining took place in the deliberations over Brown v. Board of Education of Topeka (1954). It was the Brown decision that outlawed school segregation.

A.The Supreme Court’s decision in Brown signaled the end of the doctrine of separate but equal that had been articulated by the Court in Plessy v. Ferguson, which was handed down in 1896.

1.In Plessy, the Court held that segregation was legal in public accommodations as long as separate-but-equal facilities were provided.

2.The specific case concerned railroad cars, but the principle was applied much more broadly and was extended to school systems.

B.Plessy was only one of a number of decisions that undermined the Fourteenth Amendment, but it is of particular importance because the federal courts continued to recognize the doctrine of separate but equal for the first half of the twentieth century.

C.Before the Court rendered its decision in Brown, it had already taken some incremental steps away from Plessy. The Court found itself faced with cases where southern colleges were making absurd arguments that they were meeting the separate-but-equal standard of Plessy.

1.In Sweatt v. Painter (1950), the plaintiff wanted admission to the University of Texas Law School. He was denied entrance on the grounds that he was black.

a.To ensure the legality of the rejection under the separate-but-equal doctrine, the state of Texas said it was going to build a law school for blacks.

b.By the time the case reached the Supreme Court, the Texas University for Negroes had opened.

c.The Court observed that the University of Texas Law School was “superior”. it was one of the best in the nation. The Texas University for Negroes had no full-time faculty, no comparable library- in short, it was not equal to the law school at the main campus.

d.The Court also said that robbing blacks of interaction with so many of their white law school peers forced them to study in an “academic vacuum.”

e.The Court thus ruled that the University of Texas must admit blacks because it had violated the equal protection clause of the Fourteenth Amendment.

2.McLaurin v. Oklahoma (1950), a companion case argued with Sweatt, also involved a graduate student.

a.The plaintiff, a black man, was denied admission to the Ph.D. program in education at the University of Oklahoma. A federal court subsequently ordered the university to admit him, since there was no Ph.D. program in education for blacks in the state university system.

b.The state legislature then passed a bill saying that McLaurin must be segregated while on campus. As a result McLaurin had to sit at a designated desk at the library, in a special row in the classroom, and at his own table in the cafeteria.

c.McLaurin sued, and the Supreme Court ruled in his favor. The Court said that McLaurin couldn’t get a full education if he was denied the opportunity to interact with other students.

3.In McLaurin and Sweatt we see the Supreme Court chipping away at Plessy but not attacking the central doctrine.

a.The incremental steps toward overturning Plessy were restricted to defining what “equal” meant.

b.Flagrant instances of inequality were denied protection under Plessy, but the separate-but-equal doctrine still held.

4.In 1952, a case known as Bolling v. Sharpe, which dealt with school segregation in Washington, D.C., was progressing through the federal court system at the same time Brown reached the Supreme Court. The Supreme Court decided to hold off on Brown until this other case came to it on appeal so that it could rule on them together. This delay turned out to be important because of a change in the makeup of the Court (as will be described below).

D.The following account of the Brown decision comes from one political scientist’s review of the papers of Justice Harold Minton, which he left to the Library of Congress. Burton first records discussion of Brown when Fred Vinson was chief justice.

1.Burton records Vinson as seeming equivocal about what the Court should do about school segregation. Yet he appeared closer to affirming Plessy than overturning it.

a.In Burton’s mind, this would give Plessy the crucial five votes it needed.

b.Only four justices were leaning toward overturning Plessy. But these were preliminary sentiments, because Bolling v. Sharpe had yet to reach the official docket.

2.The Court was scheduled to hear the school segregation cases in October 1953. On September 8, however, Fred Vinson died. (Not all his fellow justices were particularly upset at this. When informed of Vinson’s passing, Justice Felix Frankfurter-an agnostic-said to one of his clerks, “This is the first indication that I have ever had that there is a God.”)

a.President Eisenhower decided to appoint one of his rivals, California Republican governor Earl Warren, to the position.

(1)Warren did not have the reputation of being a great civil libertarian.

(2)As attorney general of California, Warren played a major role in sending Japanese Americans to concentration camps during World War II.

b.Eisenhower would later describe this appointment as “the biggest damn fool mistake” of his presidency. Eisenhower was particularly upset at the Brown decision.

3.At a conference of the justices on December 12, 1953, the new chief justice moved boldly. Warren expressed his view of school segregation in clear terms, declaring that he didn’t see any grounds for segregation of the races unless it could be judged that blacks were inferior.

a.What Warren was trying to do here was to push the pro-Plessy justices into a corner, draping whatever argument they might make into an openly racist-and therefore untenable-position.

4.After the conference, Burton noted a shift. Now only Frankfurter, Reed, and Jackson favored Plessy. Justice Tom C. Clark, however, had moved toward overturning Plessy.

5.Even though there was now a 6-to-3 majority against school segregation, Warren was not satisfied. He wanted the decision to be unanimous.

a.He knew that integrating segregated schools would be bitterly opposed in the South. He thought it was important that the Court speak with one voice on this issue.

b.We don’t know if Warren was, by himself, responsible for bringing about a unanimous decision. We do know that he made a concerted effort to bring in the dissenting justices. In his draft opinion, Warren tried to unite the Court rather than make the decision as definitive as possible. Up until five days before the Brown decision was announced, there was still not a unanimous Court.

6.On May 17, 1954, the Court delivered a decision in Brown v. Board of Education of Topeka that was supported by all nine justices.

E.Why was Warren so concerned about a unanimous opinion

1.Warren wanted the decision to appear as strong as possible. He didn’t want critics to point to a 5-to-4 or 6-to-3 split on the Court as evidence that the issue had not been fully resolved.

2.If southern states thought they could alter school policy a little and pick up the needed one or two votes on the Court, they might have little incentive to comply.

3.If all it would take was one or two new appointments to the Court, the South could use its leverage in the electoral college to push Eisenhower and the Republican party toward picking pro-Plessy justices.

IV.Another interesting case of the chief justice’s leadership is United States v. Nixon. This was the case that finally brought an end to the Nixon administration. (Recall the discussion in Chapter 3 here.)

A.Nixon refused to give up a second batch of tape recordings of White House conversations to the special prosecutor’s office, arguing that he had already given it everything it needed.

1.He invoked “executive privilege,” an implicit constitutional doctrine that protects confidentiality for the president and his aides.

2.The special prosecutor took Nixon to court, and when the case reached the Supreme Court the country was facing a potential constitutional crisis.

B.Nixon’s attorney, James St. Clair, had refused to say that Nixon would obey an order to turn over the tapes. If the Supreme Court ruled against Nixon, and if Nixon refused to give over the tapes, what would happen

C.In conference the justices decided against Nixon. Some justices expected that the writing would be divided up, but Chief Justice Warren Burger said he’d write the whole opinion himself.

1.Because some justices thought Burger was a second-rate scholar, they were upset at this news, fearing he would not measure up to the great challenge before the Court.

2.These justices-Brennan, Powell, and Stewart-did not want to write concurring opinions, though, feeling that Nixon was challenging the Court and that it was imperative the Court speak with one voice.

3.Instead, they submitted drafts of particular sections as substitutes for sections that Burger had circulated. This pressured Burger, because he didn’t want them to write concurring opinions, either. If he didn’t accept their drafts and they wrote concurring opinions, his opinion would be diminished in stature.

D.After much back-and-forthing with the different drafts of sections, and much bargaining about what would go into the Court’s decision, the Court delivered a 9-to-0 decision against Nixon. Nixon turned over the tapes (which he might have done in response to a nonunanimous decision, too), and the revelations in these tapes eventually led to his resignation.

V.In the examples of the Brown and Nixon cases, we see

A.The role the chief justice can play and the fact that legal craftsmanship is crucial to a chief justice’s success

B.The importance of intra-Court bargaining


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