and Discussion (30 minutes)
Before viewing the video, discuss the following questions:
- Why does "Federalist No. 78" say that the courts are
the "least dangerous branch"? Do you agree with this
- Discuss Chief Justice John Marshall's reasoning in Marbury
v. Madison. Do you find his argument for judicial review convincing?
- Which branch of government best protects individual rights?
- Are judges independent of politics?
Watch the Video
(30 minutes) and Discuss (30 minutes) [Top]
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The video includes three segments:
1. The Rodney King Reversal
This segment examines the case of Los Angeles police officers Stacey
Koon, Laurence Powel, Timothy Wind, and Theodore Brisenio, who were
indicted for the beating of Rodney King. In March of 1991, after
a high-speed chase, the officers apprehended King but were recorded
on videotape kicking, stomping, and beating King during his arrest
for speeding. A local TV station aired the images of a seemingly
defenseless African American man being beaten by L.A. police, and
shock swept across the nation. While a vast majority of the American
public believed the videotape showed the L.A. police officers used
excessive force, proving that in a court of law was different. On
April 29, 1991, the Semi Valley jury acquitted the defendants on
all charges. Although acquitted in state court, the police officers
were not completely exonerated. Federal prosecutors subsequently
indicted them on federal charges.
- Why was the trial of the police officers moved out of Los Angeles?
- Why wasn't the federal trial of the officers considered double
- What are the advantages to having overlapping court systems?
What are the disadvantages?
2. The Night the Supreme Court Decided Who Would Be President
While few Americans today doubt that the Supreme Court has the ultimate
power to say what the Constitution means (judicial review), the exercise
of judicial review in specific cases often embroils the Court in controversy.
This was the case when the Supreme Court, in 2000, intervened for
the first time ever in a presidential election.
Exactly five weeks after Election Day, the U.S. Supreme Court, in
a five to four decision, reversed the Florida Supreme Court's decision
and effectively handed Florida's 25 electoral votes (and the presidency)
to George W. Bush.
- Should the Supreme Court have intervened in this controversy?
- Does the Supreme Court's decision enhance the image of courts
- The Supreme Court's exercise of power in Bush v. Gore is, of
course, grounded in Chief Justice John Marshall's assumption of
the power of judicial review. Is this the kind of power that the
founders envisioned for the courts?
3. The Crocodile in the Bathtub: Judicial Recalls in California
In 1934, California voters passed a state constitutional amendment
designed to make appointed judges more accountable to the public.
In the new system, judges in all state appeals courts, including the
California Supreme Court, would be appointed by the governor and confirmed
by a non-partisan commission. Then, using what are called "judicial
retention elections," the public would periodically vote on whether
to keep or unseat the judges. For many years this system worked without
creating any significant controversy, but in 1986, three justices
on the California Supreme Court were up for retention, and the potential
for conflict between politics and the judicial appointment process
was high. During their public campaign to oust three justices, conservatives
built their case around the justices' record in reversing several
death sentences. This frontal attack against several judges was something
new to California, and some people became concerned that the judicial
opposition that was building might influence the justices' judicial
- How does the California judicial selection system differ from
that used for federal judges?
- Did the retention elections in 1986 demonstrate a threat to
judicial independence or does it demonstrate a valid exercise
of the public's right to hold judges accountable?
- How should judges be selected?
and Discussion (30 minutes) [Top]
Try the Critical
Thinking activity for Unit 9. This is a good activity to
use with your students, too.
1. At the Storm's Center: Your Supreme Court at Work (15 minutes)
The U.S. Supreme Court finally moved to its present location on
Capitol Hill in the mid-1930s. Prior to that, the Court worked in
various locations, including the basement of the U.S. Capitol. Elevated
by grand marble stairs, supported by 16 grand columns on its west
front, and adorned with a portico and architrave that is inscribed,
"Equal Justice Under the Law," the Supreme Court building
reinforces the Court's status as a coequal branch of government.
Further symbols employed by the Court, including an elevated court
platform and the Justices' black robes, suggest that the Court deliberates
issues free from politics and personal concerns. However, the actual
processes of the Court including the selection of cases, the shaping
of majority opinions, and the use of precedent, do not occur in
isolation from the social, legal, and political conflicts of the
day. The following discussion outlines the Court's procedures to
help demystify the process of rendering decisions. Use this summary
of the Court's process to reflect on the nature of the judicial
process. Does this process demonstrate that judges are removed from
Choosing Cases for Full Hearing
In its 200-plus years of existence, the Supreme Court has gained
greater discretion to pick and choose cases it will hear in a given
term. Today the Court receives approximately 4,000 requests per
year from litigants to hear their cases on appeal, but typically
chooses to accept about 150 cases with full opinion. The so-called
"rule of four" governs case selection; if four or more
justices agree to hear a case, the case is accepted. A case may
be accepted for various reasons, including:
- If the case involves a major issue, such as civil rights.
- If two or more lower courts differ in their interpretation
of federal law.
- If a majority of the Supreme Court disagrees with a lower court's
From October to the end of April, the justices hear oral arguments
on Mondays, Tuesdays, and Wednesdays of two consecutive weeks (from
10 a.m. until 3 p.m., with an hour at noon reserved for lunch).
The following two weeks are set aside for writing opinions. The
Court's process of hearing cases and rendering judgment is unique.
Lawyers on both sides of a case have only 30 minutes each to argue
their case. During that time the justices can ask questions or otherwise
interrupt a lawyer's argument. There are no witnesses called during
oral arguments, and there is no introduction of evidence. Lawyers
for the plaintiff and defendant submit written briefs prior to the
court date. Outside interests may submit amicus curiae, or "friend
of the Court" briefs outlining their group's position on the
issues central to the case.
Judicial conference takes place in closed session on Wednesdays
and Fridays, with only the justices present. Beginning with the
Chief Justice and proceeding from the most senior on to the most
junior Associate Justice, each justice provides his or her analysis
of the case and the relevant law, and announces a proposed decision.
After reaching a decision that is supported by at least five justices,
the decision is assigned to a justice who then writes the majority
opinion. If the Chief Justice is in the majority, he or she assigns
the case to a justice (or to him- or herself) who will write the
majority opinion. If the Chief Justice is in the minority, the most
senior justice in the majority assigns the majority opinion.
Who actually writes the opinion is not a trivial matter, as the
opinion's content and style may affect the ultimate size of the
majority, and the number and nature of any concurring opinions
or dissenting opinions. Concurring opinions may be written by justices
who accept the majority decision but don't agree with the majority's
entire reasoning. Dissenting opinions are written by the justices
to explain their differences with the majority.
2. Should We Have Elections and Term Limits for Supreme Court
Justices? (15 minutes)
Alexander Hamilton characterized the courts as the "least dangerous
branch" of government, having neither the power of the sword
or purse. Yet ever since the Supreme Court took for itself the power
of judicial review, the Court has periodically come under intense
criticism for certain rulings. Federal judges are appointed for
life, and can only be removed through impeachment in the House of
Representatives, and conviction in the Senate. Only a handful of
federal judges have ever been impeached, and no justice of the Supreme
Court has ever been impeached.
Discuss the possible pros and cons of a reform which subjects Supreme
Court justices, and all federal judges, to retention elections after
a certain term expires after their initial appointment. Voters nationwide
could review a justice's record and decide whether or not to retain
her or him for another term. What might be some positive effects
of such a reform? What might be some negative consequences? In weighing
the potential pros and cons, consider the experiences of retention
elections for judges in states that have them. Does the experience
in California, as profiled in this unit's video segment, support
or undermine the case for retention elections at the national level?
Another reform to consider is judicial term limits. Rather than
appointing federal and Supreme Court justices for life, under term
limits judges would be appointed for a fixed term, say, six, 10,
or 12 years, and then would be ineligible for another term. What
might be the pros and cons of such a change? In considering the
possible merits of this reform, keep in mind the original intentions
of the Constitution's framers that the judiciary be insulated from
electoral politics. Also consider whether judges are insulated under
the current system where judicial appointments have become another
partisan conflict between Republicans and Democrats.
Read the following Readings from Unit 10 to prepare for next week's
Read next week's Topic Overview.
- Introduction-Understanding Media: The Inside Story
- Tocqueville, Democracy in America: "Liberty of the Press
in the United States"
- Milton, Areopagitica
- Hume, "On the Liberty of the Press"
- New York Times v. Sullivan
You may want to have your students do the post-viewing activities:
At the Storm's Center, Your Supreme Court at Work and Should We
Have Elections and Term Limits for Supreme Court Justices? They
are provided for you as blackline masters in the Appendix of the