Lesson Plan 1
The Role of the Judiciary in a System of Separation of Powers and Checks and Balances
Procedures:
1.
Distribute the student handout—What is the Role of the Courts in a
System of Separation of Powers and Checks and Balances? This is reprinted
from the Constitutional Rights Foundation website (www.crf-usa.org
from the Online Lessons section) with edits and additions provided by The
Missouri Bar.
2.
Have the students read the handout either silently or together as a
class.
3.
As a class or in groups of three to four, have the students complete the
charts on the student handout—Checks and Protections. The purpose of this
handout is to show both the “separation” of the branches and the checks and
balances between the judicial branch and the other two branches.
Possible answers for legislative
and executive checks on the judiciary:
·
Missouri legislative checks on the judiciary include the power of
the purse—each year the legislature decides the budget for every state branch
and agency, including the judiciary.
·
Federal legislative checks include the power of the purse and the
Senate must approve any federal judge nominated by the president.
·
Missouri executive checks include the governor chooses appellate
court judges, including Missouri Supreme Court judges, from a panel of three
nominated by a special commission. (See Lesson Plan 4—Selecting
Judges.) In Missouri, unlike the federal government, the chief executive—the
governor—has line item veto and can veto all or parts of the judiciary budget.
·
Federal executive check is the power to nominate federal judges.
Possible answers for protections
the judicial branch has from the other two branches of government:
·
Federal legislative protections—Congress cannot reduce a judge’s
salary while he/she is on the bench, Congress may not nominate a judge—only
confirm a presidential nominee, the Congress has no control over the cases the
Court hears and Congress cannot overrule the Court.
·
Federal executive protections--the president cannot demand loyalty
from a judge he/she nominates and has no control over the cases that the Court
hears.
·
Missouri legislative protections—The Missouri General Assembly has
no part in selecting judges under Missouri’s Non-Partisan Court Plan and has no
power over the cases that the Courts hear.
·
Missouri executive protections—the governor chooses a judge from a
panel presented to him/her and does not nominate or choose judges and the
governor has no control over the cases the Courts hear.
Discussion question:
How does the judiciary stay relatively independent even with the various
checks and how do its protections help it maintain this independence?
4.
Follow up activity: Distribute the student handout—The Least
Dangerous Branch? or make it into a transparency and project it where all
students can see it. Have the students react to Hamilton’s belief that the
judiciary will be the least dangerous to individual freedoms. Discussion
questions follow the quote on the handout.
5.
Debrief:
·
What did you learn from this lesson?
·
What information do you still need?
·
Where might you go to find out this information?
6.
Enrichment: The Supreme Court Quiz handout provides lots of
research opportunities to learn about the history of the courts. (Websites that
will helpful to students:
www.law.cornell.edu,
www.findlaw.com and
www.oyez.org.) The answers to the quiz are:
1.
George Washington appointed the most Justices--3 Chief Justices and 8
Associate Justices.
2.
Marbury v. Madison(1803)
3.
The four presidents who made no appointments were William Henry Harrison,
Zachary Taylor, Andrew Johnson, and Jimmy Carter. William Henry Harrison only
served one month before dying of pneumonia contracted on his Inaugural Day.
Jimmy Carter is t he only one of the four whom served a full term. Zachary
Taylor and Andrew Johnson succeeded presidents who died in office--Taylor
succeeded William Harrison and Johnson succeeded Lincoln.
4.
President Andrew Johnson in a political move by the Reconstructionist
Congress to deprive Johnson of power. The original Federal Judiciary Act of
1789 originally set up the Supreme Court with six Justices--five Associates and
a Chief Justice. The number was increased to seven in 1807 and then nine in
1837. A tenth seat was added in 1863. Then in 1866, Congress passed a bill
providing that the president could fill no vacancies until the number was back
down to seven. The current number of nine justices was restored in 1869.
5.
Abraham Lincoln appointed a tenth judge. In 1863, as the Civil War
dragged on, Republicans in Congress made a provision to increase support for the
Union on the court by authorizing the addition of tenth seat. Congress restored
the number to nine seats in 1869.
6.
President William Howard Taft wanted very much to be Chief Justice of the
Supreme Court. He eventually did become Chief Justice in 1921, becoming the
only man to be both President and Chief Justice. He is also the only former
president to swear in another president.
7.
John Adams appointed George Washington's nephew, Bushrod Washington, to
the Court in 1798.
8.
Andrew Jackson allegedly said of Chief Justice John Marshall, he "made
his decision, now let him enforce it." Jackson was referring to the
Worcester v. Georgia, 31 U.S. 515 (1832) decision wherein the Court held
that the State of Georgia could not enforce its law on land owned by the
Cherokee Nation. President Jackson had been elected on a platform of removing
Indians east of the Mississippi River and he refused to enforce the decision.
He allowed Georgia to confiscate Cherokee land, assert jurisdiction over the
Cherokee territory and jail Cherokee citizens and non-Cherokee sympathizers.
9.
President Ulysses S. Grant is said to have packed the court in 1870 to
support the constitutionality of the Legal Tender Acts. This was in response to
the 1870 decision of the Supreme Court, Hepburn v. Griswold. In that
case, the court decided that Congress could not issue paper money as legal
tender. Grant was able to "pack" the court because although Congress has
authorized 9 seats on the court, only 7 were filled.
10.
The Chief Justice is different from the other justices in just a few
matters. He is considered "first among equals." His vote does not weigh more
than that of any other justice, but he does preside over oral arguments and over
the conference where the justices discuss cases. Also, he has additional
administrative duties as head of the Judicial Branch of the federal government.
For example, Chief Justice William Rehnquist presided over President William
Clinton’s impeachment trial in the United States Senate.
11.
All the justices, including the Chief Justice, are appointed by the
President and confirmed by the Senate. Seniority has nothing to do with who is
appointed Chief Justice. The current Chief Justice, William Rehnquist, had
served on the court prior to being appointed, but many times in the past the
Chief Justice was a newly appointed justice. Note: In Missouri, the Chief
Justice is elected by the other judges and serves for two years. Usually, the
Chief Judge is decided by seniority and is rotated among the seven judges.
However, this is not always the case and the judges have departed from tradition
on several occasions.
12.
The Chief Judge is appointed for life just like other Supreme Court
justices.
13.
Answers will depend on the current make up of the court.
14.
The Constitution does not specify qualifications for justices. Although
every justice has been a lawyer thus far, there have been judges who have not
been law school graduates but passed the bar exam after self-study or
apprenticeships to lawyers.
15.
John Jay was the first Chief Justice.
16.
The Federal Judiciary Act of 1789 originally set the number of justices
at six--the Chief Justice and five associates. Congress changed this to seven
in 1807 and to nine in 1837. In 1863, Congress added a tenth seat. In 1866,
Congress reduced the number to seven again. The current number of nine justices
was restored in 1869.
17.
The court is asked to review approximately 8,000 cases a year.
18.
The court takes about 1% of the cases appealed to it. 4,000 of the cases
or the petitions are in forma pauperis, which means they are filed by
indigent clients--clients unable to pay the filing costs and to pay counsel.
19.
The Supreme Court is in session from the first Monday in October until
the end of June.
20.
Not all of the justices must be present to hear a case, only a quorum,
which is 6 judges.
Student Handout—Lesson 1
What is the Role of the Courts in a System of
Separation of Powers and Checks and Balances?
The United States Court System
When the framers of the Constitution arrived in Philadelphia in 1787 to
consider a new form of government for the United States, it was a foregone
conclusion that it would have three branches. Well-educated students of history,
the framers had been influenced by great political thinkers of the past,
including the Frenchman Montesquieu. Central to his ideas about government was
the concept of separation of powers. He believed that the best way to preserve
individual liberty and avoid tyranny was to divide the powers of government into
the legislative, executive, and judicial function. (See Articles I, II and III
of the United States Constitution.) In this way, none of the branches would
possess all of the power and each would balance one another off.
Those at the Constitutional Convention worried about power, too. Fresh from
the revolutionary experience, they wanted to make sure that the government had
enough power to solve the country’s problems, but not too much power to ride
roughshod over the states or individual citizens. Many viewed the judicial
branch as, in the words of Alexander Hamilton, “the least dangerous to the
political rights of the Constitution” and as a necessary buffer between the
powerful presidency and Congress.
Article III of the Constitution states: “The judicial Power of the United
States shall be vested in one Supreme Court and in such inferior Courts as the
Congress may from time to time ordain and establish.” The article goes on to
describe what kinds of cases the “judicial Power” would be empowered to hear.
Language in the article suggests that the framers wanted the judicial branch to
serve an independent role free from political pressure. It stated that judges
should “hold their Offices during good Behavior.” This meant a judge could only
be removed for misconduct. It also stated that judges should receive a salary
that could not be reduced during the time they held office. This would assure
that judges could not be punished by salary reductions if they made unpopular
decisions.
Though the framers created an independent judiciary in Article III, they also
included some checks and balances against too much judicial power. The
Constitution gave the president the power to appoint judges with the “Advice and
Consent of the Senate.” (Article II, Section 2.2) (See more on how the
Senate’s power to give “advice and consent” to the president has evolved in
Lesson 3—The Selection of Judges.) It gave Congress the power to create
or eliminate lower federal courts and determine what cases could be appealed to
them.
Oddly, the Constitution says nothing about the one job the Supreme Court is
most known for today. That is the power to review federal and state laws to
determine whether or not they are constitutional. (See the Lesson Plan
2—Judicial Review.) Some scholars have argued that the framers assumed that the
Supreme Court would have this power without having to spell it out in the
Constitution. They cite, for example, Alexander Hamilton in The Federalist
Papers, a series of articles published to support the ratification of the
Constitution. He wrote:
The interpretation of the laws is the proper and peculiar province of the
courts. A constitution is, in fact, and must be regarded by judges, as
fundamental law. It therefore belongs to them to ascertain its meaning, as well
as the meaning of any particular act proceeding from the legislative body.
Once the Constitution was ratified, the First Congress of the United States
went about establishing the rest of the federal courts under the powers given to
it. The Federal Judiciary Act of 1789 laid out a plan that today has grown into
an extensive system of federal trial and appeal courts. It also gave federal
courts the power to take appeals from state decisions. The U.S. Constitution
attempts to ensure judicial independence.
Missouri’s Court System
Missouri has the same separation of powers system of
government as the United States and grants its courts have the same powers as
the federal courts. (See Articles II, III, IV and V of the Missouri
Constitution.) Unlike the federal constitution, Missouri’s Constitution grants
the power of judicial review to Missouri’s courts (Article V, Section 3) and
extensively lays out how many courts there will be, how many judges there will
be and what their qualifications will be. (Article V)
Missouri also has a system of checks and balances—balanced
power between the three branches and each branch has checks on the other two.
In Missouri, the Governor appoints some circuit court judges and all appellate
judges from a special non-partisan panel. (See Lesson 3—How Federal and
State Judges are Selected.) The legislative branch (Missouri’s General
Assembly) has the power of purse—it decides the budget of the judiciary. The
Governor also has the power to approve or veto all or part of the budget. (The
President of the United States does not have the power of line item veto like
the Governor of Missouri.) The judicial check on the executive and legislative
branches is the power to declare laws and executive acts unconstitutional, which
means the laws and acts are null and void.
Student Handout—Lesson 1
Checks and Protections
Legislative and Executive Checks on the Judiciary
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Judicial
Protections from the Executive and Legislative Branches
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Student Handout—Lesson 1
The Least Dangerous Branch?
From Federalist Paper # 78 by Alexander Hamilton:
Whoever attentively
considers the different departments of power must perceive that, in a government
in which they are separated from each other, the judiciary, from the nature of
its functions, will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or injure them.
The executive not only dispenses the honors but holds the sword of the
community. The legislature not only commands the purse but prescribes the rules
by which the duties and rights of every citizen are to be regulated. The
judiciary, on the contrary, has no influence over either ht sword or the purse;
no direction either of the strength or of the wealth of the society, and can
take no active resolution whatever. It may truly be said to have neither FORCE
nor WILL but merely judgment; and must ultimately depend upon the aid of the
executive arm, even for the efficacy of its judgments.
Discussion questions:
- Do you agree with Hamilton's statement that the
judiciary is the least dangerous to our political rights (think of the
rights guaranteed in the Bill of Rights)? Why or why not?
- What does he mean by "sword of the community"?
- Why do you think Hamilton felt that the "power of the
purse" is more dangerous than anything the judiciary might do?
- Supreme Court judges are not elected—why doesn't this
make them the "most dangerous" branch of all? How does the fact they are
not elected insure everyone's political rights? How does the fact that they
do not have to raise money for elections make for a more independent
judiciary?
Student Handout—Lesson 1
(enrichment)
SUPREME COURT QUIZ
1.
Which president made the most appointments to the Supreme Court?
2.
Which case established judicial review?
3.
Which presidents made no appointments to the court? (There are only 4).
4.
Which president had his power to appoint Justices cut off by Congress?
5.
Which president appointed a tenth Justice?
6.
Which President, upon appointing a Chief Justice, told his Attorney
General, "I cannot help but see the irony in the fact that I, who desired that
office so much, should now be signing the commission to another man?"
7.
Which president appointed his predecessor's nephew to the Supreme Court?
8.
Which president said of a Supreme Court decision, that the Chief Justice
had "made his decisions, now let him enforce it"?
9.
Which president "packed" the Supreme Court to have a decision overruled?
10.
How is the Chief Justice different from the other eight Justices?
11.
How is the Chief Justice appointed? Does the most senior Justice become
Chief?
12.
How long does the Chief Judge serve?
13.
Who is the current Chief Justice? Can you name the eight Associate
Justices?
14.
What are the qualifications of the Justices?
15.
Who was the first Chief Justice?
16.
How many Justices were on the original Supreme Court? When did it become
9?
17.
How many cases are appealed every year to the Supreme Court?
18.
How many cases does the court usually agree to hear?
19.
When is the court in session?
20.
Do all of the Justices have to be present to hear a case?
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