Tufts OpenCourseware
Search
Author: Kathleen Merrigan, Ph.D.

The Judicial Branch

Field Trip to the John Joseph Moakley U.S. Courthouse (http://www.discoveringjustice.org/courthouse/ or http://www.bostoncourthousemanagement.com/)

Judicial activism is embraced by some and shunned by others. How do the courts go about determining legislative intent? What is the appropriate role for the courts in policymaking? How do interest groups calculate potential court actions into their agendas? We will tour the new Federal Courthouse and learn some of the ins and outs of the judicial system from practicing attorneys.

Quote of the Day

Justice Jackson was nominated to the Supreme Court by President Roosevelt in 1941 and served for 13 years until his death in 1954. Prior to becoming a Justice, Jackson served as Solicitor General and Attorney General. In this excerpt from a Supreme Court opinion, Justice Jackson, writing for the majority, upholds the rights of individuals to abstain from saluting the flag in the public schools. In doing so, the Court is overruling an opinion issued just three years earlier in Minersville School District v. Gobitis (1940).

“Without promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose weak government over strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end…
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissisitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections….”
“If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which is the purpose of the First Amendment to our Constitution to reserve form all official control…
Love of country must spring from willing hearts and free minds, inspired by a fair administration of wise laws enacted by the people’s elected representatives within the bounds of express constitutional prohibitions. These laws must, to be consistent with the First Amendment, permit the widest toleration of conflicting viewpoints consistent with a society of free men.”

Justice Robert H. Jackson in West Virginia Board of Education v. Barnette. 1943

Discussion Questions

Have you ever read a Supreme Court opinion? People anticipate a vacancy on the Supreme Court. What do you think are the characteristics of a good justice? Should the next Supreme Court justice be a so-called "activist" judge? What is meant by this term? In Massachusetts there is talk of changing our judicial system from one in which judges are appointed to one in which they are elected (as in Texas). What are the pros and cons of these two very different systems of selecting the men and women in black robes?

Readings:

  • Joni Hersch. "Breast Implants: Regulation, Litigation, and Science" and Thomas K. Kniesner, Comment in Regulation through Litigation, W. KipViscusi ed., Brookings, 1992.
  • Lettie Wenner. Environmental Policy in the Courts, in Environmental Policy in the 1990s. edited by Norman Vig and Michael Kraft.

Links:

  • The Federal Judiciary - http://www.uscourts.gov/
    • Read judiciary articles "in the news"
    • Search the online courts library
    • Under "court links," click on any region on a map of the United States to access lnks to the circuit courts
    • FAQs have some good basic information about the US judicial system
  • United States Supreme Court - http://www.supremecourtus.gov/
    • Read about the Supreme Court, including history, biographies, justices' caseload, and the building
    • Search for Court dockets, which contain information about cases, both pending and decided
    • Find "argument calendars" and lists of Court hearings
    • Read annual term opinions of the Court
  • Law Library of Congress guide to the U.S. Judiciary - http://www.loc.gov/law/guide/usjudic.html
    • Learn about: History of the Judiciary, Understanding of the Federal Courts
  • Supreme Court Decisions 1937-1975 - http://www.access.gpo.gov/su_docs/supcrt/index.html
    • Search by case name, case number, or subject
  • http://supct.law.cornell.edu/supct/
    • Shows most recent Supreme Court decisions listed back chronologically
    • Supreme Court decisions 1990-present
  • Legal Information Institute (Cornell Law school) - http://supct.law.cornell.edu/supct/cases/historic.htm
    • Searchable database of selected historic Supreme Court decisions (this is where you find Roe vs. Wade, Sacco and Vanzetti, Brown vs. Board of Education and all those other famous ones!)
  • Farmer's Legal Action Group - http://www.flaginc.org/
    • Quick links to news and alerts
    • Information on high-profile ag litigation
    • Focus areas on credit, farm preservation advocacy, sustainable/organic ag, racial discrimination in ag, disaster assistance, production contracts, factory farms, corporate concentration, biotechnology
  • Supreme Judicial Court of Massachusetts Office of Reporter of Decisions - http://www.massreports.com/
    • Public Case Information
    • Slip Opinions of the Supreme Judicial Court and Appeals Court
    • Find out what's happening today: "Today's SJC Cases"
  • U.S. Department of Justice - http://www.usdoj.gov/
    • Organizational Chart and Budget information for the DOJ
    • Under "Alphabetical List of Components," find useful information under antitrust division, civil rights division, environment and natural resources division, the FBI, Office of Tribal Justice, and other.
    • "Visit DOJ's website http://www.lifeandliberty.gov, launched to educate Americans about how we are preserving life and liberty by using the USA PATRIOT Act." (No kidding, it really says that on the front page!)
  • National Association of Attorneys General - http://www.naag.org/
    • "The National Association of Attorneys General (NAAG) was founded in 1907 to help Attorneys General fulfill the responsibilities of their office and to assist in the delivery of high quality legal services to the states and territorial jurisdictions." (Each state has an attorney general.)
    • Find out about NAAG projects including civil rights and environment.
    • Contact list for State Attorneys General
    • Up to date news releases regarding Attorneys General as well as issues and research important to the association.