Judicial Review: Classic Statements

o Why is Madison concerned about factions in Federalist #10? What is his solution to the problem? Most important for our purposes, how might the federal courts factor into his solution (NOTE: Madison does not address the judiciary in Federalist #10, so you will have to draw inferences)?

o Define judicial review. How does it differ from abstract review?

o What is the Supreme Court’s reasoning in its assertion of judicial review in Marbury v. Madison (1803)? In particular, why does the Court argue that the power of judicial review entails judicial supremacy in constitutional interpretation?

o While Hamilton does declare the federal courts the “least dangerous branch,” he still suggests that it has a role to play in our constitutional design. How does Hamilton characterize the basis of judicial power in Federalist #78?

Judicial Decision-making: Internal Influences

1. Traditional Interpretive Perspectives

Contrast textualism and doctrinalism. What are their advantages and disadvantages, from your point of view?
What is originalism? What problem[s] with judicial power does originalism hope to address)?
Marshall lays out what we called a purposive approach in his argument for “living Constitution.” What is his approach? What are the reasons for his approach? How might he respond to the originalist perspective? And does Rehnquist respond (indirectly) to him?

2. Attitudinal model

From the attitudinalist point of view, how do attitudes compare to the traditional perspectives as an explanation of judicial behavior? How do attitudinalists describe their approach in terms of i-points, issue domains, and j-points?
What enables the Supreme Court to focus on attitudes? In other words, what are some of the characteristics of their institutional setting that free Supreme Court justices to make decisions based on their policy preferences? Why might this be different for judges in lower federal courts (hint: think about the difference between horizontal and vertical stare decisis)?
Empirically, how do attitudinalists measure attitudes? Do you see any problems with their approach?

3. Institutionalist models

According the legal model, why are attitudinalists only partially correct?
What is a jurisprudential regime? How does it structure decision-making? Be able to give examples.
According to the strategic model, why is judicial interdependence so important?
What is vote fluidity? Why might is help explain the strategic dimension of judicial decision-making?

Judicial Decision-making: External Influences

1. Institutional models

How does the relationship of the lower to higher federal courts shape judicial decision-making (i.e., intrainstitutional constraints)?
How does the separation of powers at the federal level shape judicial decision-making (i.e., interinstitutional constraints)? How does Boerne v. Flores illustrate the importance of separation of powers?

2. Public opinion

What is Robert Dahl’s argument about the role of the selection process in the Supreme Court’s countermajoritarianism (or lack thereof)?
What are some of the jurisprudential reasons that public opinion might be integrated into court decisions (be able to give examples)?
The Supreme Court’s decisions are not self-executing. What role does this fact play in the Court’s openness to public opinion, if any?

3. Interest groups/social movements

Recall our discussion from earlier in the course about the role of interest groups in political litigation. What are these groups’ primary tactics?
What is the difference between the agenda-setting stage (i.e., deciding to decide) and decision-on-the-merits stage of judicial decision-making? How influential do groups tend to be at these stages?
What role did groups play in shaping the Court’s agenda over time, particularly in fostering the so-called rights revolution (recall the notion of “support structure”)?
How might party ID matter to judicial decision-making?

Impact of Judicial Review

1. Top down model

Why did Hamilton argue that the Supreme Court is the “least dangerous branch” in Federalist #78? How did he view the Supremes’ countermajoritarianism?
One way to determine the impact of the Court is to look at the influence of “landmark” decisions. Why focus on these decisions?
What is a direct (judicial) and indirect (extrajudicial) effect?
What assumptions underlie the dynamic and constrained court hypotheses?
What does the evidence from civil rights and abortion cases suggest about these hypotheses?

2. Bottom up model

What is the difference between an institutionalist versus culturalist understanding of the legal rights?
What is rights consciousness? From our discussion of legal rights, what does the concept suggest about a rights-based politics?

3. Communitarian model

Fundamentally, a communitarians believe that our rights-talk has become highly individualistic ( a la Glendon’s description of the “lone rights-bearer”). Why?
According to a communitarian, what is the problem with rights discourse for political communication? Democratic deliberation? Sociality? Civic responsibility?