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9. The Courts: Our Rule of Law, Using the Video





Using the Video Unit 9

Pre-Viewing Activity 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 assessment?

  • 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?


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.

Discussion Questions

  • Why was the trial of the police officers moved out of Los Angeles?

  • Why wasn't the federal trial of the officers considered double jeopardy?

  • 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.

Discussion Questions

  • Should the Supreme Court have intervened in this controversy?

  • Does the Supreme Court's decision enhance the image of courts as nonpolitical?

  • 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 decisions.

Discussion Questions

  • 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?



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 politics?

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 decision.

Oral Arguments

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

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.




Homework [Top]

Read the following Readings from Unit 10 to prepare for next week's session.

  • 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

Read next week's Topic Overview.



Classroom Applications [Top]

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 print guide.




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