 Chapter 5, The Judiciary. The judicial branch is discussed in Article 3 of the U.S. Constitution. So the judicial branch is composed of the Supreme Court and federal courts that are located all across the country and later on explain how that works. There are several different kinds of lower level federal courts that are located in every part of the country including in Brooklyn, but as you all probably know there's only one Supreme Court in Washington, D.C. and that Supreme Court is the highest court in the entire country. So basically what I'm talking about here with the judicial branch is the court system and the federal court system in the United States that deals with federal court cases, issues of federal law and issues of federal government actions. State laws are dealt with in state courts, local laws are dealt with in local courts. So just the way that federalism allows the national state and local governments to have their own laws so too are there separate court systems that deal with national state and local. So today we're just talking about the national court system, the federal court system which is made up of the Supreme Court and federal courts that are located all across the country. When you look at the judicial branch in comparison with the other two branches of our federal government, the executive branch and the legislative branch, the judicial branch, the judiciary, is very unique among the three branches of government in that its leaders are unelected. So the president is the head of the executive branch, the president becomes the president because we, the people, elect the president. Same thing goes for members of Congress, members of the hazard representatives and members of the Senate are both elected by the people. Judges, federal court judges and Supreme Court justices, just another word for a judge, are not elected by the people. They are appointed by the president and confirmed by the Senate and we talked about that in the last lecture, how the Senate has a special authority to confirm several kinds of people that are appointed by the president including federal judges and Supreme Court justices. So the judicial branch is very, very different because none of the leaders in that judicial branch, all these judges and there are hundreds of them in the United States are not elected. So because judges are not elected, the judiciary's legitimacy depends on the public trusting the judiciary to be fair and impartial. What that means is, well, so what do we mean by legitimacy? The perception that this person has a right to be there, has a right to do that job, has the authority of the American people because that's how our government operates, right? As a Democrat Republic, the power of the government comes from the people because we elect them. So since we don't elect judges, the judiciary's legitimacy, their ability to maintain respect depends on the public trusting the judiciary to be fair and impartial, that they are doing the right thing, that they are doing the honest thing and interpreting the law honestly as they should. That's kind of hard for the courts to do though because maintaining the sense of legitimacy of respect is hard because courts often roll on very divisive culture war issues. And what I mean by culture war issues is the kind of social issues that people fight about very, very passionately. These are moral issues that people feel very strongly about, like abortion, religious rights issues and issues of race and gender. These are the kinds of things that get people arguing very passionately with each other about. And the courts have to rule about these kinds of things over whether abortion should be legal or not, how much religious rights we have to do certain things, how much rights people have to be protected from discrimination or race and gender, things like that, how much equality we should give to women in certain respects or African-Americans. These are the kinds of issues that really pull people apart, these kinds of culture issues. And so the court, the Supreme Court especially, when it rules on these kinds of divisive issues, never pleases everybody. Somebody is going to be happy. One group of people is going to like what they've decided. Other people are not going to like it and think that they made the decision completely wrong for the wrong reasons and they're often criticized for that. Just in the past couple of weeks the Supreme Court has made a few very close calls, very divisive conclusions, some of which went against what President Donald Trump hoped the Supreme Court would do. And because of that Donald Trump went on Twitter and criticized the Supreme Court. So these are the kinds of things I'm talking about with these cultural issues being very divisive and putting the courts right smack in the middle of these divisive issues. Because of that the courts have become politicized when the Supreme Court, for example, makes a decision that Republicans like Democrats will criticize it and say, well they made it, you know, they made the decision because this is a very conservative court and Republican judges on the court voted the way they did not because that's what they believe the law means, but because they're Republicans. And when the court rules against Republicans then the Republicans get angry and say, well the court's being too liberal, it's being too much like Democratic Party. So the court system unfortunately has become politicized and that's unfortunate because the founding fathers did not want the federal courts to be politicized and that's exactly why they made the court system and the judicial branch made up of unelected judges. The founding fathers specifically did not want the courts to be like the legislative branch and the executive branch. They didn't want the leaders of the judiciary, the judges, to be elected because they thought they would be too much at the whim of public opinion. They did not want judges to make decisions based on whether they thought that the voters would reelect them or not. They wanted judges to make decisions based solely on what they believed the law required. And so because the founding fathers did not want federal courts to be politicized, they made sure that judges to be court justices were not elected and even more than that they wrote into the Constitution that federal judges and Supreme Court justices would serve for life. So not only are they not elected, not only are they appointed and nominated by the President and then confirmed by the Senate, but once a federal judge is in office, once the Supreme Court justices is in office, they're there for life until they die or until they decide to step down and retire. So most judges actually do serve until they die and that again is to totally insulate them from politics. Judges can be removed, but only through impeachment, only if it's shown that judges did something corrupt or broke the law or did something immoral. So it's very difficult to remove a judge just like it's very difficult to remove a president in the United States because the mechanism for removing judges is the same as for removing a president, you have to impeach them. Now another interesting thing about the judiciary, if you compare it to today with how the founding fathers wanted it to be an act like, is that the founding fathers did not want the Supreme Court to be as powerful as it is today. If you read the Constitution, if you read Article 3 of the Constitution, it basically only says that the court should interpret law and resolve disputes. Today, however, the Supreme Court does a lot more because today the Supreme Court has the power of what's called judicial review and judicial review is a very important power that the Supreme Court has to rule a law or government action on Constitution. It's actually not just something that the Supreme Court can do, but other federal courts in the United States also have the power to do judicial review, not just to interpret a law and to say what it means if there are two different groups suing each other because they disagree about what the law says and what the law means and what the law requires, but to go even one step further with judicial review the courts have the power to say that this law shouldn't even be a law because it's unconstitutional or to say that the president can't do something he's done because it's unconstitutional. It goes against the Constitution. So today the courts and especially Supreme Court, which is the highest court in the country, not only has the power to interpret the law, but also has the power to interpret the Constitution review the Constitution review laws to make sure that they are not unconstitutional. So the Supreme Court didn't always have this power. So the Supreme Court came into being in 1789, the first year that the new government under the Constitution were in effect. It's also the same year 1789 that we had our first presidential election, the year that George Washington became our first president. The Supreme Court didn't come up with the idea of judicial review, didn't first exercise judicial review until 1803. So almost 15 years after the start of the new government and Supreme Court first exercised judicial review in the 1803 Supreme Court case Marbury versus Madison. So this was a court case that was brought by William Marbury, who was a lawyer who was appointed to be a Chief Justice by the Justice of the Peace in Washington D.C. in 1801. 1801 was an important year because that was the very end of the presidency of John Adams. And John Adams was the second president of the United States. He succeeded George Washington as the second president of the United States. And in the final days of his presidency in 1801, he appointed this guy William Marbury to be a Chief Justice of the Peace in Washington D.C. It was the end of his presidency because John Adams had run for election in the election of 1800, but he lost. And he lost to Thomas Jefferson, who was about to become the new president of the United States, the third president of the United States. That election of 1800 was a very important election because it was the first time that a president of one party was about to hand over power to the president of another party. John Adams and Thomas Jefferson were from two different political parties. John Adams was a member of the Federalist Party, one of the first two political parties to exist in the United States. The Federalist Party was a party that believed very strongly in federalism, that believed in the idea of having a strong federal government, a strong national government. Thomas Jefferson, however, was a member of the Democratic Republican Party, which was anti-federalist. So Thomas Jefferson did not want the federal government to be as strong as John Adams and George Washington was also federalist wanted. Thomas Jefferson wanted to weaken the power of the federal government relative to the power of the state governments. So this was a monumental time period here in 1801, the final days of the Adams administration because Adams knew that the things that he did as president would be undone by Thomas Jefferson. That he, that Adams could do that Jefferson would not be able to undo was to appoint judges. And so one of the justice of the peace that the kind of judge I'm talking about here is a very small time judge that didn't require Senate confirmation. So all that needed to happen was for John Adams to sign a piece of paper making William Marbury a judge. So he did that. However, because John Adams did this the night before he, Thomas Jefferson became the new president, John Adams was able to sign the order making Marbury a judge, but the order was not properly filed in time before Jefferson could become president. So when Jefferson became president, he ordered his new Secretary of State James Madison. And that's where the Madison comes in Marbury, Sue's Madison. Because Madison, on the order of his new president, James Madden, and Thomas Jefferson did not file the order making Marbury a judge. So Jefferson said, All the orders that have been filed yet, James Madison, I want you to destroy because I'm going to go ahead and appoint my own people for these judge positions. So Marbury knew that Madison had not filed the order. He knew that Adams had made him a judge. And so he was naturally upset that he wasn't going to get his job. And he believed that what Jefferson and Madison had done by not filing the order that was signed by John Adams when Adams was still president was illegal. He believed that this was a violation of law. And so he filed a case with the Supreme Court. Why the Supreme Court? Because we're talking about Washington D.C. here, which is not a state. Washington D.C. is a federal territory, a territory that's run by the federal government. And so he went to the federal courts all the way up to the Supreme Court to file his lawsuit against Madison. And in the lawsuit he asked the Supreme Court to order James Madison to file the order and that would make Marbury a judge and allow him to take that position. So the Supreme Court had to basically rule on whether Marbury had a right to his job, whether John Adams had appropriately appointed William Marbury. The Chief Justice of the Supreme Court at the time was a guy by the name of John Marshall, who by the way was a cousin of Thomas Jefferson's. John Marshall was a very smart guy and one of the things he was worried about here was the legitimacy of the Supreme Court because the Supreme Court doesn't really have a lot of power to enforce its decisions. Yes, the Supreme Court can make a decision and order the President or Congress or a state government to do something. And as I already explained in lecture three about federalism, we saw during the Civil Rights Movement how southern states easily defied the Supreme Court because the Supreme Court doesn't have a police force or a military that it can use to enforce its order. So John Marshall felt that if he ordered James Madison and the President of the Town of Jefferson to give Marbury his job, that because Jefferson was from a different party and didn't want to give Marbury his job, Jefferson might say, well, you know what? I'm not going to do it. I don't care what the Supreme Court says. You know, they can't do anything about it. I'm the President. I decide who's going to be a judge. And so instead what John Marshall wrote, what John Marshall and the Supreme Court concluded was that yes, Wayne Marbury should be a judge, that John Adams legally signed the order and that it was just a small little problem that it wasn't filed. While Adam was still President, Marbury should still be President. I mean, he should still be a judge. And then, but however, Marshall then said, but we have no power to order the President or the Secretary of State James Madison to give Marbury his job because the law that Marbury is using to sue is unconstitutional. Now, the law that Marbury was using to that he used to bring his lawsuit was the Judiciary Act of 1789, which was a law that Congress passed in its first year, which set up the court system. Because if you look at Article III of the Constitution, it doesn't say a lot about how the court system, the federal court system in the United States is supposed to work. It actually is very short and very vague and just simply says the judiciary of the United States shall be located in a Supreme Court and other courts that Congress may want to create. So it gave Congress the power to create other courts. And so in the Judiciary Act, Congress did that, created all these other federal courts that I'm going to talk about in a few minutes. But the Congress also did something else in the Judiciary Act of 1789. It gave the Supreme Court what's called original jurisdiction over a number of different kinds of cases. Original jurisdiction, and I'm going to talk about that more later on, means that the power to hear a case first. So if the Supreme Court has original jurisdiction over something, it means that it can hear the case first and you can bring the case directly to the Supreme Court. Now, John Marshall felt that that power to give what Congress did by giving the Supreme Court original jurisdiction, the power to hear a case directly, rather than having a case go through other courts first and then get the Supreme Court, as is usually the case today, where the Supreme Court will be the last court to hear a case not the first, was unconstitutional. So the Supreme Court in 1803, when it heard the Marlboro versus Madison case ruled that what the Congress did in the Judiciary Act by giving the Supreme Court original jurisdiction over a case like this one, Marlboro versus Madison, was unconstitutional because the Article 3 of the Constitution says that the only kind of case that the Supreme Court shall have original jurisdiction over is when two states sue each other, which has happened over the course of American history. And so this is what Marshall ended up saying, John Marshall and the Assistant Court ended up ruling that even though they felt that Marlboro should have a job, there was no power they had to order the president to do something because this case shouldn't have been brought to them because the case was brought to them pursuant to a law, the Judiciary Act of 79 that was unconstitutional. So forget about the details of this for a second. You don't need to memorize every single detail. What's most important about Marlboro versus Madison is that this is the first time the Supreme Court ever said that a law was unconstitutional, the first time they ever even thought about saying that a law was unconstitutional. And that power of judicial review has stuck. The Supreme Court has been using it ever since 1803. And because of this, the exercise of judicial review in Marlboro versus Madison has made the judiciary, especially the Supreme Court, a much more powerful branch of government, a much more powerful institution than the founding fathers ever thought it would be ever wanted to be. So if we step back for a second now and talk more about how the federal court system looks like, the federal judiciary in the United States has a three level structure. At the bottom, at the basic level, there are 94 district courts. At the middle level, there are 13 courts of appeal. And I'm going to go into each one of these more detail in just a couple of seconds. And then one Supreme Court. So there are 94 district courts throughout the United States. 13 courts of appeal all throughout the United States. And then only one Supreme Court, which is located in the nation's capital in Washington DC. Okay, so let's take each level of the court system and talk about it in more detail, beginning with the lower level. So this is the low level, intermediate, high level district courts, courts of appeal, Supreme Court. District courts have original jurisdiction. So today, the Supreme Court only has original jurisdiction over cases where states sue each other. In most cases, the issue starts in the district court. District courts have original jurisdiction. So this is where a court case starts. And because of that, they're trial courts. So I'll give you an example. Let's say that the FBI arrests someone in Brooklyn on suspicion of drug dealing, and it's a federal charge of drug dealing. So under the Constitution, before you can put somebody in jail, before you can find somebody guilty, you have to put them on trial, you have to prove the government has to prove that they're guilty in a court of law before a jury. So that process is what takes place in the district courts. So district courts are where courts cases start and it's where you have trials. So that's the most basic level, the 94 district courts. There are also 13 courts of appeal that have what we call appellate jurisdiction. So this isn't where court cases start. This is not where you have trials, courts of appeal and not trial courts. What appellate courts do, what courts of appeal do, is that they hear issues of law and disputes about the law that originate out of a trial. So let's go back to the debate about the example of somebody being arrested by the FBI in Brooklyn on federal charges of drug dealing. So they're put on trial, the person's put on trial in federal criminal court in Brooklyn, and actually the federal courthouse in Brooklyn is right near CityTac, right behind the post office on Tiller Street. And they're found guilty. So they're found guilty of drug dealing and their sentence to 20 years in jail, whatever. The person who is found guilty and the lawyer, his or her lawyer, can appeal if they believe that there was a legal problem in the original trial. So let's say that the main piece of evidence against the person at the trial was the drugs that were found in the person's apartment. And the drugs were found because the FBI searched the apartment and they had a warrant, the FBI had a warrant, but there was a problem with the warrant. There was some kind of technical problem with the warrant, and so there was an issue, a legal issue about whether the search was legal under the Constitution under the Fourth Amendment, which I'm going to talk more about in the next lecture when we talk about civil rights and civil liberties. So let's say there was a problem with the search warrant, and so the defendant, the person who was found guilty, and his lawyer argued during the trial that because there was a problem with the warrant that the drugs should not be presented as evidence in the trial because they're obtained illegally. The government, the prosecution argued the opposite and said that, yeah, even though there was a technical problem with the warrant, it doesn't mean that the drug shouldn't be presented as evidence and the judge agreed with the government and said, yes, I'm going to allow the drugs to go into evidence. And mainly because of that, the person, the defendant, was found guilty. So now the defendant now, having been found guilty, can now appeal the case and take the case to the court of appeals, which has appellate jurisdiction. And the argument that the defendant would make in the court of appeal was that the trial judge in the original case, the original jurisdiction case, made the wrong decision. He made an error and that the court of appeal should overturn the conviction and order a new trial without the drugs being used as evidence. And so at the appellate court, you don't have another trial because the person who had been found guilty. All the appellate court is doing is deciding whether the trial judge in the original case made the right decision or the wrong decision with respect to allowing the drugs to be presented as evidence. If the appeals court says that the trial judge made a mistake and that the evidence should not have been presented to the jury in the trial court, then what happens is that the original case with the conviction is set aside, doesn't mean anything anymore, and that the government will have to retry the defendant, but this time in the second trial, they cannot introduce the drugs as evidence because the appeals court ruled that they were legally obtained. Or so that's one thing the appeals court could do. The appeals court decides that the government was correct and that the trial judge did not make an error by allowing the drugs to be presented as evidence. Then the defendant can appeal again this time to the Supreme Court, all the way up to Supreme Court. And once the Supreme Court decides something, that's it, that's the final point and then line the conclusion so whatever the Supreme Court says would be the end of this case. So that's how district courts and courts of appeal work. District courts have original jurisdiction and trial courts is where court cases begin, and that's why there's so many of them, 94 all across the country, and each state has a different federal district court. Here in Brooklyn, we're in the Eastern District of New York, which covers Brooklyn, Queens, and then Nassau and Suffolk counties of Long Island. So any case that originates in that area, so anybody who gets arrested for a federal crime in Brooklyn, Queens, Nassau or Suffolk will go to trial. In the Eastern District, in one of the two federal courthouses in the Eastern District, and there are two of them, one here in Brooklyn. Any others all the way out East in Hoplog, Long Island, all the way out in Eastern Suffolk County. And so if you do federal, if you live in Brooklyn or Queens, and you have to do federal jury duty, you're going to do federal jury duty either in the Brooklyn courthouse or in the Hoplog court. It's more likely the Brooklyn courthouse because it's closer where you live. So that's how district courts work. And not every case can get appealed because you can't just say that, well I was found guilty, but the jury made the wrong decision. You have to believe that there was an error of law, that the judge made an error of law in order to appeal something. So not all district court cases get appealed, which is why there are far less, there's a far less number of appeal courts in the US than there are district courts. There are only 13 appeal courts, whereas there are 94 district courts. Okay, so let's go now to the highest level, the Supreme Court, which is the highest court in the US. And just like the appellate courts, which do not hear appeals from every single district court case, the Supreme Court doesn't hear appeals from every appeals court case, because sometimes the appeals court will rule the way the person who brings the appeal wants, and then that's the end of the story. Or sometimes if personal appeals loses, they decide not to go any further on their own, they decide not to take it to the Supreme Court. And also the Supreme Court doesn't have to hear every case that's applied to it. And that's one of the things that makes the Supreme Court special, is they get to decide whether or not to take a case. And so the Supreme Court only accepts a tiny amount of cases that apply to be heard before it. And one of the reasons is they simply don't have the capacity, the ability to hear many cases every year because they're only one of them. And so they only hear cases that have a real debate to them about constitutional law, something that may change the way we think and look about the Constitution, the way we change the case, the only hear case that changes the way we think about our rights and the law. That's the only kinds of cases they hear. So if we go back to the district court for a second, within the district court there are two divisions. There's a criminal division and a civil division. The criminal division hears criminal cases and that's where the example of somebody who is arrested in Brooklyn on the charge of drug dealing, on the charge of violating federal drug laws. That's a criminal case because you're talking about violating a criminal law that was passed by the government. Criminal cases of a prosecutor and a defendant. The prosecutor is the person who's acting on behalf of the government to defend the law and to try to put the person who is believed to have broken the law in jail. The prosecutor in a federal case is called the U.S. Attorney. In a state case, the prosecutor would be called the district attorney, the district attorney of Brooklyn and district attorney of Queens, the district attorney of the Bronx or Staten Island. At the federal level, the prosecutor is called a U.S. Attorney. And just like federal judges, U.S. attorneys are appointed by the president, not for life, for four-year terms in office. U.S. attorneys are appointed by the president and the defendant is the person who is being charged with the crime. So the person who is arrested on suspicion of violating federal drug laws is the defendant. Civil cases do not involve criminal law. Civil cases involve what we call a tort. A tort is a rule in the law that governs people's private behavior. And these are rules that allow you to sue if you believe that someone has violated this private behavior to your detriment. So for example, one tort is liability. So let's say, for example, and I'll use an example, a more local example, let's say I'm liability negligence would be a tort, the example I'm using. So let's say tomorrow morning I go to Trader Joe's to do my shopping, to do some grocery shopping. And in the juice aisle, and as I'm walking, I slip and fall because someone had knocked over a glass bottle of juice that broke on the floor and spilled juice out. And as I'm walking by, I slip on the juice, I fall and I break my leg. And later on I find out that that broken bottle of juice had been laying on the floor there for an hour before I fell. So I could sue Trader Joe's the tort of negligence and liability and say that they were negligent, meaning they were irresponsible and not careful to clean up that juice as soon as it broke. And because they didn't, that they put me in harm's way and that because I was injured because of their recklessness and their uncarefulness, their carelessness, that any injury that I have because of that, they are responsible for monetarily. They are responsible for paying my doctor's bills. They are responsible for paying me money now for work that I might miss because I'm injured. And I could also sue them for what's called pain and suffering. So they pay me money because as a result of the injury, I sustained a lot of pain above the money that I put out and have to be compensated for. So there are two types of injuries here, compensatory damages and pain and suffering. So that's the kind of thing here that you would talk about. Another tort would be, you know, contracts. So if I, to give you an example of federal law, let's say I'm a business and I sign a contract with the federal government to sell certain goods to the federal government, a certain amount of money. And then when I get paid, I don't believe that I got paid everything I'm owed so I can sue the federal government for my belief that they violated the contract and so we can go before a judge and a jury and ask the judge and jury to decide who's right and who's wrong and whether I, the person doing the suing, called the plaintiff, if I'm right or if the defendant, the person I'm suing, is right. And if I'm right, if the court rules that I'm right, if the jury decides that I'm right, then they can order the defendant to pay me the money they think I'm owed for either of a difference in the contract of what I think I'm owed or in the case of me getting injured, how much money owed for compensatory damages to make up for what I lost or what I had to pay for doctors bills or pain and suffering, whatever they think I'm owed because I got hurt. Those are the two types of cases that are conducted in the district court, criminal cases and civil cases. So beyond that, what district courts do is resolve matters of fact and what do I mean by matters of fact? What happened? So in the case of a criminal case, let's say a person who's arrested in Brooklyn on suspicion of violating drug laws, the jury and the court will have to decide whether or not the person's guilty or not. That's a matter of fact. Did the person commit the crime they're being charged with? And that's the jury's decision to decide whether or not the person is guilty or not guilty. The judge in a district court, and there's only one judge in this trial, is only there to be a referee, is only there to be an expert of the law to decide the rules to make sure that the rules of the law are followed in how the case is handled but the actual decision about whether the person is guilty or not is done by the jury. In the civil case, it's the jury that decides, am I owed money or not? Was I injured because of the other person's negligence? Yes or no? And that again is a matter of fact. In the courts of appeal, you're not talking about resolving matters of fact, you're talking about resolving or deciding matters of law. And in the example I used before, the matter of law in a criminal case would be, did the judge in the district court correctly rule that the drug should be presented as evidence or not? So that's not a matter of law. I mean, that's not a matter of fact for a jury, a group of non-lawyers to decide, but that is instead a decision for judges, experts in law. And so that's why in a court of appeals you don't have a jury, you don't have a trial, you have a group of judges. And it could be the three, five, seven, nine, always a non-number of judges because they all hear the case and then they all decide what they think is the resolution. And then whoever, if it's a group of three judges, if two say yes and one say no, then whoever is in the majority wins. If two judges say yes, the judge was right to allow the drugs to be in evidence, then that's the ruling. If two say no, then that's the ruling. If two say yes and one say no, then the yeses win because that's the majority. So district courts hand down matters of fact by jury, courts of appeals resolve matters of law, and those are decisions handed down by judges not a jury. It's the same for the Supreme Court. The Supreme Court doesn't do trials, doesn't hear matters of fact, they hear matters of law, and then all the judges, all the justices on the Supreme Court have their own vote and then decide. Today there are nine justices on the Supreme Court. Throughout American history there have been less, but now there are nine. So the Constitution doesn't specify that there are nine, but today there are nine. There could be more or less in the future if Congress decided to either increase or decrease the size of the Supreme Court, but today there are nine justices on the Supreme Court. Okay, so as I said before, the Supreme Court only takes a small amount of cases that it is asked to consider. The Supreme Court accepts appeals from the appellate court, so it's primarily not a court of original jurisdiction because it doesn't hear cases first and only hears cases that have been heard by other levels of the court system, mainly the appellate court, and as I said before, the Supreme Court only takes cases where important constitutional issues are at stake. The only instance where the Supreme Court does hear arguments under original jurisdiction where hears cases first is where there's an argument between two states. And that has happened in the past, doesn't happen often, but it has happened. Roughly 25 years ago the state of New Jersey sued the state of New York. And the case that it sued about had to do with Liberty Island, the island that the Statue of Liberty is built on. And the state of New Jersey sued New York State because it believed that Liberty Island is a part of New Jersey. It once was part of New Jersey. If you go back all the way to the early years of the United States, Liberty Island was part of New Jersey, but today it's part of New York. And New Jersey was trying to argue, and it was not successful, but it argued that the contract where New Jersey gave New York control over the island, ownership of Liberty Island, was made under duress. And under the law, if a contract is made under duress, if a contract is not entered into willingly, it's not a valid contract. You cannot force someone to make a contract with you. Both sides have to willingly and freely enter into it. And so New Jersey tried to argue to the Supreme Court and the Supreme Court ruled against New Jersey that New Jersey was under duress when it turned over control of Liberty Island to New York State. Why is that such a big deal? Why was this supposed to be a big deal at the time? Because whoever controls Liberty Island also controls the concessions, the gift shop, and the entrance fee to the Statue of Liberty. And that's millions of dollars a year, and that all gets taxed. And because the Statue of Liberty and Liberty Island are in New York, all that tax money goes to New York State. So New Jersey wanted to reclaim control of the Statue of Liberty in order to get control of all this tax money. So that's the kind of case that the Supreme Court will hear directly as a case of original jurisdiction. Whereas most cases come to the Supreme Court up through the district courts, through the Pell Court, and then to the Supreme Court. So the Supreme Court is mostly a court of appellate jurisdiction except when it comes to hearing arguments between two states. So the Supreme Court operates very differently from other courts because it is not banned by precedent. They can make new precedent. What is a precedent? A precedent is a legal habit where you respect decisions that have been made in the past. So for example, if a case goes to the appellate court about, for example, should drugs that are obtained from a certain type of warrant, or a warrant that had this kind of mistake on it, should those drugs be entered into evidence. The appellate court, when it looks at the case, can't just decide whatever it wants. It has to look at what the Supreme Court has ruled previously, what other courts have ruled previously, and then rule that same way. Meaning, according to the precedent that was set by the Supreme Court and other courts. The Supreme Court, however, can totally change and make a new precedent. So for example, if the Supreme Court, so for example, Supreme Court in 1973 said that the Constitution guarantees women the right to have an abortion under certain circumstances. But for the most part, states cannot prevent women from having an abortion in most circumstances. That was a really big decision that was made in 1973 in the case of Roe v. Wade. That was a very controversial decision that people are still arguing about today. Many people believe that the Supreme Court's decision was wrong, and that the Constitution does not actually protect a woman's right to have an abortion. And many people who disagreed with the Supreme Court's decision want the Supreme Court today to overturn Roe v. Wade and state that because the Constitution does not guarantee women the right to have an abortion, it is legal for states to pass laws that totally prohibit women from having an abortion. So the Supreme Court could do that because even though Roe v. Wade is the Supreme Court precedent, the Supreme Court itself is not bound by its own precedence. It can make new precedence. The Supreme Court next year could take an abortion case and rule that what the Supreme Court said in 1973 was totally wrong, and that the Constitution does not allow women to have an abortion, and so from now on states can ban abortion. And if that happened, many states probably would ban abortion. So this is a big deal, and that's why the Supreme Court's ability to make new precedent and not have to be bound by its own precedence is a really big deal, is a really big important power that the Supreme Court has to shape American law, American federal law, and American constitutional law. Okay, so as I said before, all federal judges are appointed by the president, and they are confirmed by the Senate. So the president will say to the Senate, this is the person I've picked for this to be a district court judge or an appellate court judge or a Supreme Court justice. And then the Senate will get to vote yes or no. If the Senate votes yes, then that person becomes a judge. If the Senate votes no, then that person doesn't become a judge and the president can turn around and appoint somebody else for that position. The confirmation process has become very political. As I said before, the fratting father did not want the courts to be political, but they'd become political. And the confirmation process itself has become very political. Just in the past three years, Donald Trump has nominated appointed two Supreme Court justices, two new Supreme Court justices. And in both cases, the Senate debate over those two Supreme Court nominees of President Trump have been very, very political, very controversial with Republicans totally supporting the president's nominees and for the most part Democrats totally not supporting the president's nominees. Supreme Court justices have two basic judicial ways of thinking. They have two basic ways of looking at the law and of shaping the law, of thinking about the law. One is called judicial restraint. One is called judicial activism. Judicial restraint is a type of thinking about the law that is a very conservative way of thinking about the law. That is the way of thinking that most Republican judges, judges who have been appointed by Republican presidents, think about the law. And so the way they think is basically embodied by the title judicial restraint. They think that judges should be very restrained in the way they think about the law, the way they interpret the law. That they should look exactly what the law says and not think about what's going on in the political world, not what's going on around society, not look at how society's changed. But simply look just at the law and say what the law means and stick to the precedent and stick to a tradition that if things are the way they've always been, that's the way they should always be and we should try to make the law grow with the way society's grown. Which is the way that judicial activism believes. So judicial activist judges believe that the law should grow to reflect the changes in society. That just because things have been done a certain way doesn't mean they should always be done a certain way. That things change and the law should change as society changes. And so judges who are judicial activists and they are mainly more liberal judges, judges who have been appointed by Democratic presidents, tend to think about the law more through the lens of judicial activism. And so I'll give you an example. One big legal change in the past 10, 15 years, the issue of gay marriage. So gay marriage became legal in the early 2000s, the mid 2000s I should say, when the state of Massachusetts became the first state to legally allow gay and lesbian couples to get married, legally in the state. And that decision was based on a court case that was brought in the before the state court system Massachusetts. And the top, the court case ended with the top Massachusetts court, their Supreme Court, their state Supreme Court, rolling that the Massachusetts Constitution required the state to allow gay marriage. Because the Massachusetts Constitution state constitution guarantees everyone what we call equal protection of the law. So according to the state constitution Massachusetts and this is also true for most state constitutions, like the state constitution New York, all the people living in the state have to be treated equally by the law. And so Massachusetts, the Massachusetts Supreme Court said that because state law allows people to get marriage license because marriage is a legal institution in states like Massachusetts, that that legal institution has to be open, not just to heterosexual couples, as was the case before this case in Massachusetts. But it also has to be open to gay and lesbian couples as well, because gay and lesbian couples have to be treated equally. And so that was a big, big decision and then after that other states started slowly allowing gay marriage to be legal, either by court rulings or by the state legislative passing laws, which was the case here in New York, where in New York state gay marriage became legal when the state legislature in Albany decided to pass a law allowing gay and lesbian couples to be married in New York. And then finally in 2013 the US Supreme Court ruled that the Constitution in the United States also requires gay couples, gay and lesbian couples to be allowed to legal marriage throughout the United States. Because up to that point, at that point, there were still several states in the United States where gay marriage was still not legal. And so when the Supreme Court ruled that way, the US Supreme Court ruled that way, that made all these other state laws that still did not allow gay marriage to suddenly become unconstitutional. And that's why because of one of the things I talked about in the lecture on Chapter 2, the Constitution, the supremacy clause, when a Supreme Court ruling or federal conflicts with state law, the federal government's ruling in law trumps the state law. So now because of the Supreme Court ruling, every gay and lesbian couple, no matter where they live, has the right to be legally married in the United States. And so that court ruling is an example of judicial activism because the part of the Constitution that it relied on, the Equal Protection Clause, this idea that everyone has a right to be treated equally, never applied before to gay and lesbian couples. And so the Supreme Court in 2013 and state courts before that expanded the interpretation of the Equal Protection Clause to include gay and lesbian couples who are looking to get married. The Supreme Court justices both at the federal level and in states that who ruled that their constitutions did not protect gay marriage were operating on a more judicial straight way of thinking by saying well Equal Protection was never interpreted and never meant to apply to gay marriage before. So it shouldn't start now. We need to keep things the way they are. So that way of thinking, judicial straight versus judicial active is two very different ways of thinking about the very same piece of law, the Equal Protection Clause in constitutions that say you have to treat everyone equally. So you can take one law that's written the same way for everybody and interpret in two very different ways depending on what kind of judge you are, whether you're a judge who believes in judicial restraint as a way of thinking about the law, or whether you're a judge who thinks about judicial activism as a way of thinking and because Supreme Court justices especially have this ability to change the way we interpret the Constitution and to make new precedent. Judges justices on the Supreme Court have a very, very important power and it's a power that they have for life unlike presidents who only serve for four years or members of Congress who only serve for two or six years. So that's why the judiciary, even though it was meant to be a smaller branch of government, is actually now a very powerful branch of government. And that's the end. I'll see you for our next lecture, our next chapter, which is going to be on civil rights and civil liberties.