The Constrained Court

Gerald Rosenberg begins his book by posing the questions he will attempt to answer for the reader throughout the rest of the text: Under what conditions do courts produce political and social change? And how effective have the courts been in producing social change under such past decisions as Roe v. Wade and Brown v. Board of Education? He then works to define some of the principles and view points 'currently' held about the US Supreme court system.

The Supreme Court priorities from the time period of 1790 to 1865 were establishing the Judiciary Act of 1789, which was instrumental in founding the Federal Court System. The framers believed that establishing a National Judiciary was an urgent and important task. After the installation of Chief Justice John Marshall who “used his dominance to strengthen the court 's position and advance the policies he favored” (Baum 20). However, in the decision of the landmark case of Marbury v. Madison in 1803 was an example of the power he exuded “in which the Court struck down a Federal statute for the first time” (Baum 20). This created some internal conflict between Marshall and President Thomas Jefferson, however Marshall was able to diffuse this with

In the United States government, there are three branches called the legislative, executive, and judicial branch. Out of these three, the judicial branch is the most powerful. The judicial branch is made up of the Supreme Court, the court with the most power in the country, and other federal courts that are lower in the system; the purpose of this branch is to look over laws and make sure they are constitutional and reasonable. This process is called judicial review; judicial review by definition is the “power of a court to declare acts of governmental bodies contrary to the Constitution null and void” (Neubauer and Meinhold 492). Chief Justice John Marshall first brought up this power in the

The myth of rights perspective, coined by Scheingold, argues that “... the recognition that rights are not self - executing but must be mobilized to be effective” (Albiston, 545). As mentioned by Professor Albiston, the myth of rights is skeptical that any real change results from court decisions and rights litigation. In terms of the Obergefell v. Hodges, many people view the case from the myth of rights perspective arguing that like in the decision of Brown vs. Board of Education, the decision of this case will not actually bring about real changes initially; however, maybe in the long run, it will. For example, same-sex couples will now be able to marry, but they will likely continue to face discrimination for their actions and sexuality not only by their church, but by some people in society. Moreover, according to this perspective, rights require mobilization, which is difficult under circumstances of unequal power. According to Miller and Sarat, when taking into account the myth of rights, “... empirical research demonstrated that mobilization was the exception, not the rule” (Miller and Sarat, 1981). Moreover, according to Rosenberg, empirical research also suggests that “... litigation fails to produce lasting social change because courts lack institutional authority to implement radical

The judicial review process is an important aspect of the US Court system. The process involves the use of powers by the Federal Courts to void the congress' acts that direct conflict with the Constitution. The Marbury v. Madison is arguably the landmark case that relates to Judicial Review. The Marbury v. Madison case was written in the year 1803 by the Chief Justice at that time named John Marshall. Thomas Jefferson won an election on the Democratic - Republican Party that had just been formed creating a panicky political atmosphere having defeated John Adams of the previous ruling party. Adams had appointed several justices for the District of Columbia prior to being defeated. The senate had approved the commissions and the commissions signed by the president as well as being affixed with the government's official seal. However, the commissions were not delivered, and when Jefferson took office, he instructed James Madison the Secretary of States not to deliver them. William Marbury who was on the list of appointees petitioned the Supreme Court for a legal order compelling Madison to explain why he was not to receive the commission (Clinton 1994).

In the year 1803, an ambivalent, undetermined principle lingered within the governing minds. The government and its “justified” Constitution were thought to be fully explained, until a notion occurred that would bring individuals to question the authority and their limit for empowerment. To end his days as president, John Adams named fifty-eight people from his political party to be federal judges, filing positions created by the Judiciary Act of 1800, under the frequently listed Organic Act. His secretary John Marshall delivered and sealed most of the commissions, however seventeen of them had not yet been delivered before Adams’s departure in 1801. On top of that, Thomas Jefferson refused to appoint those seventeen people because they were

Ever wondered how the court systems go about making their decisions and if they are just in doing so? There have been cases where the process of the law has been questioned. These cases can only be straightened out by the due process of law. The guarantee of due process, in the Fifth and Fourteenth Amendments, prevents the government from unfairly depriving individuals of their basic rights to life, liberty, and property. (Strasser)

If Rosenberg is correct, this does not mean that Hamilton’s argument that the Court is the “least dangerous branch” is also correct. Rosenberg’s view that courts can only produce significant social change given weak barriers and constraints does not by itself qualify Hamilton’s argument. There are other ways that the Court exerts influence in the political system other than promoting social change.

All things considered, Mark Sutherland has brought together a provocative corps of respected scholars and legal thinkers who collectively offer an incisive critique of a judiciary gone awry while they offer constructive solutions for reform. They make it abundantly clear that we the American people do not have to be slaves to the edicts of these black-robed deities. Their adroit assessment of the federal judiciary is intelligent, rooted in a principled esteem for the rule of law and constitutional popular rule, and their solutions are constitutional defensible, practical and tenable. One thing is resoundingly clear, we must stand up to these demigods in block robes that contravene the design of our federal republic and offer outlandish decisions at odds with the will of the vast majority of the people. It is paramount that the American people awaken and voice their discontent to their elected representatives in Congress if we are to abate judicial tyranny. Mark Sutherland 's Judicial Tyranny is destined to be a classic, and unlike similar well-written books by Mark Levin and Pat Robertson, Sutherland 's book is unique: it is hard-hitting and much more multi-faceted on the issues it covers. Additionally, it represents a profound cooperative effort by a potentate of conservative luminaries from James

The President faces a challenging task when selecting nominees to the Supreme Court. David Yalof point out many problems in the nation, in the branches of government, and the President’s own circle what must be considered when making a nomination. Supreme Court nominees is the most public part of the nomination process. Yalof also states the changes the government has gone through, affecting the selection of Supreme Court nominees. Yalof talks about some Presidents from Truman to Reagan. Reagan has supported a constitutional amendment. Reagan had publicity promised to appoint justices to Supreme Court willing to reverse Roe v. Wade. Selecting the Supreme Court nominees is one of the President duties.

There is no doubt that the Supreme Court has become more institutionalized since its founding, due its growing caseload. At first, the growing caseload was a result of the countries

78 have been negated, given the power the Supreme Court established in the Marbury v. Madison Decision. Hamilton never intended for the court to have the power to nullify congressional legislation through judicial review. He simply intended for the court to interpret the laws written by Congress in order to preserve the individual rights of the people. The protection of these rights over the will of congress and the court itself was Hamilton’s main vision. He’s purpose was to safeguard the people from a tyrannical government. Nevertheless, Chief Justice John Marshall, through his genius was able bring the judicial branch on par with the legislative and executive branches with the self-imposed power of judicial review. With a masterful legal opinion in the Marbury case, Marshall created a system of common law review, which set the legal standard for future cases like Dred Scott v. Sanford and Brown v. Board of Education (O’Brien 167). The outcome of these cases has impacted the lives of Americans over the years. People’s will and desire has evolved over time, from a racially structured society in the 1800’s to the civil rights movement of the 1950’s. The moral views of Americans have changed over time, with a positive collective will. Although the current state of the court is not Hamilton’s blueprint design, Marshall’s opinion in the Marbury case has performed Hamilton’s main desire; the

The Supreme Court of the United States has played an integral role in the formation of law in the United States and continues to mold the legal structure of the country. Since the Supreme Court first convened on February 2, 1790, the Court has heard many quintessential landmark cases that have resulted in decisions that have greatly altered American legal structure and society. The Nine by Jeffrey Toobin chronicles the Supreme Court in the late 20th and early 21st Centuries under Chief Justice William Rehnquist and his successor, Chief Justice John Roberts. The book principally focuses on the little publicized happenings of the Supreme Court and its justices. The Nine

Judicial selection is an intriguing topic as there are multiple ways that judges take their seat on the bench. The United States Constitution spells out how federal judges are selected and leaves it up to the individual states to establish their means for selecting judges. In federal courts, judges are appointed and it varies between appointment and election for state courts. The purpose of this paper is to examine the differences between appointments and elections (as well as the multiple types of elections) and to give an opinion as to which is the better alternative.

The civil justice system exists in order to enable individuals, businesses, and local and central government to vindicate, and where necessary, enforce their civil legal rights and obligations, whether those rights are private or public. It ensures that the rights and protection of citizens are called for. The rule of law dictates that government should not abuse their powers as per AV Dicey’s concept of the rule of law. In addition, the civil courts endorse economic activity, allowing contracts to be made between strangers because rights are taken care of in the courts if they are breached.