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3.3: The Roles of the Congress, the President, and the Courts

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    Standard 3.3: The Roles of Congress, the President, and the Courts

    Describe the respective roles of each of the branches of government. (Massachusetts Curriculum Framework for History and Social Studies) [8.T3.3]

    FOCUS QUESTION: What are the roles of Congress, the President, and the courts in the United States government?

    A four-part graphic whose parts, from left to right, consist of the seal of the U.S. House of Representatives, the seal of the U.S. Senate, the seal of the U.S. President, and a photograph of the Supreme Court Building.
    Figure \(\PageIndex{1}\): The combined seals of the U.S. House of Representatives, Senate, and President, and an exterior view of the Supreme Court Building.

    The three branches of United States government - commonly referred to as Congress, the President, and the Federal Courts - have their own roles and powers, as outlined in Describing the Three Branches, a website from the White House. You can also get more information from the resourcesforhistoryteachers wiki page: Congress, the President, the Bureaucracy and the Courts.

    What are the key elements of the powers and roles of the three branches of the government? The modules for this standard examine that question from the standpoint of a) the Executive Branch - the role of the FBI and the Post Office in American politics and whether a woman can be elected President; b) the Legislative Branch and the growing number of LGBTQIA legislators; and c) the Judicial Branch and key Supreme Court decisions that every teenager should know.

    Modules for this Standard Include:
    1. INVESTIGATE: The Executive Branch and the President
      1. UNCOVER: The FBI and the Post Office in American Politics
      2. ENGAGE: Can a Woman Be Elected President of the United States?
    2. INVESTIGATE: The Legislative Branch - the House of Representatives and the Senate
      MEDIA LITERACY CONNECTIONS: Exploring How Members of Congress Use Social Media
      1. UNCOVER: Electing LGBTQIA Legislators
    3. INVESTIGATE: The Federal Judicial Branch, the Supreme Court, and State Courts
      1. ENGAGE: What Supreme Court Cases Should All Teenagers Know?

    3.3.1 INVESTIGATE: The Executive Branch and the President

    The Executive Branch is headed by the President, who is the head of state and Commander-in-Chief of the armed forces.

    South Facade of the White House, Washington, D.C.
    Figure \(\PageIndex{2}\): The White House, Washington D.C. | "WhiteHouseSouthFacade" by Matt H. Wade.

    Inauguration of the President

    Following the 20th Amendment of the Constitution, Presidents of the United States take office every four years on January 20, Inauguration Day. Inauguration for a President means the beginning of a term in office. Every President takes on oath of office to preserve and defend the Constitution. The oath is administered by the Chief Justice of the Supreme Court. With Joe Biden's inauguration in 2021, the oath has been administered 73 different times to 46 Presidents. William Howard Taft is the only man to have both taken and administered the oath of office.

    Every President has given an inaugural address, except for the Vice-Presidents who became the chief executive when the President died or resigned. Presidential inaugural addresses by George Washington, Abraham Lincoln, and John F. Kennedy have become some of the most important and memorable speeches in U.S. history.

    The 2021 Inauguration Choice Board (click here to make your own copy of the choice board)

    Image of the 2021 Inauguration Choice Board
    Figure \(\PageIndex{3}\): "The 2021 Inauguration Choice Board" by Robert W. Maloy, Ed.D. and Torrey Trust, Ph.D., College of Education, University of Massachusetts Amherst

    Powers of the President

    The President is responsible for implementing and enforcing the laws passed by Congress, or if so decided, vetoing laws passed by Congress. The President is also responsible for handling affairs with foreign nations and issuing State of the Union addresses, which are typically done in front of a joint-meeting of Congress in January.

    There is more on the powers and functions of the Presidency in "Checks and Balances and the Power of the President" and "The War Powers of the President" in Standard 3.2 in this book.

    Commander-in-Chief: U.S. Presidents and Their Executive Power, a blog post from the National Archives, lists executive actions by Presidents that advanced civil rights for Black Americans:

    • President Lincoln signing the Emancipation Proclamation (1863)
    • President Grant signing the Civil Rights Acts of 1866 & 1875
    • President Franklin Roosevelt prohibiting discrimination in defense industries (1941)
    • President Truman desegregating the military (1948)
    • President Eisenhower signing an order allowing Black students to attend an all-White high school in Little Rock, Arkansas (1957)
    • President Lyndon Johnson signing the Civil Rights Act of 1964 and the Voting Rights Act of 1965

    The Presidential Cabinet

    The President appoints the members of his Cabinet. Although the Cabinet is not formally included in the Constitution (the idea was explicitly rejected at the Constitutional Convention), every President beginning with George Washington has relied on a group of advisors to make policy decisions and manage the activities of the government (Chervinsky, 2020).

    Washington's first cabinet consisted of the Secretaries of War, State, and Treasury along with the Attorney General. Abraham Lincoln famously conducted the Civil War with a "team of rivals" (Goodwin, 2006).

    Today there are 25 distinct Cabinet-level appointees. The Secretaries of State, Treasury, and Defense along with the Attorney General and the Vice President make up the "inner cabinet." The "outer cabinet" consists of the Secretaries of Interior, Agriculture, Commerce, Labor, Health & Human Services, Housing & Urban Development, Transportation, Energy, Education, Veterans Affairs, and Homeland Security, along with the Military Chief of Staff, CIA Director, Council of Economic Advisors Chair, EPA Administrator, Office of Management & Budget Director, Small Business Administration Administrator, U.N. Ambassador, US Trade Representative, and Director of National Intelligence.

    Frances Perkins (Secretary of Labor) was the first woman to serve in a Presidential cabinet in 1933; Robert Weaver became the first African American cabinet member in 1966 (Secretary of Housing & Urban Development). Joe Biden has proposed having the most women ever serve in his Cabinet, including the first-ever woman to be Secretary of the Treasury. No woman has ever served as Secretary of Defense, Head of Veterans Affairs, or Military Chief of Staff (A Record-Breaking Number of Women Could Be in Biden's Cabinet, FiveThirtyEight, December 15, 2020).

    Biden has also proposed the first Native American Cabinet member (Deb Haaland, Secretary of the Interior) and first LGBTQ member (Pete Buttigieg, Secretary of Transportation).

    The members of the President's Cabinet exert enormous influence over government policy and American life. Following the lead of the President, they set the agendas for the agencies they direct, and given the size and complexity of American government, Cabinet members have considerable autonomy in what they do. If a Secretary of Interior decides to open public lands to logging and drilling, that will have lasting environmental impacts. If a Health & Human Services Secretary downplays or suppresses information about a pandemic, lives will be lost due to misinformed health policy. Alternatively, if a Secretary of State or United Nations Ambassador engages in effective international diplomacy, wars can be ended or prevented and human suffering reduced.

    Age of Presidents

    In a trend that dates back to the 1950s, the average age of United States Presidents has been growing older, contributing to what has been called a gerontocracy, or a society governed by older people. Donald Trump was 70 after being elected in 2016, making him the oldest person ever inaugurated President. Joe Biden was 78 when he became the 46th President in January 2021. The average age of members of Congress has also been getting older, and the average age of the Supreme Court justices is 67 years old.

    However, in most of the other democratic countries in the Organization for Economic Cooperation and Development (OECD), the average age of heads of government is growing steadily younger, reported Ian Prasad Philbrick in the New York Times ("Why Does America Have Old Leaders?" July 16, 2020). The average age of leaders in those countries is 54, and there are many considerably younger leaders who are in their thirties and forties, including in 2020, Sanna Marin of Finland, Jacinda Ardern of New Zealand, and Justin Trudeau of Canada. To keep track of the ages of political leaders, use a search engine to find "youngest head of states in the world today."

    Do you think age means leaders have more experience and wisdom? Or are younger leaders more likely to have fresh ideas for change?

    The Presidency in US History and Politics Choice Board (click here to make your own copy of the choice board)

    Choice board for the Presidency in U.S. history and politics
    Figure \(\PageIndex{4}\): "The Presidency in U.S. History and Politics" Choice Board by Robert W. Maloy, Ed.D. & Torrey Trust, Ph.D., College of Education, University of Massachusetts Amherst

    Choice Board Bonus

    Suggested Learning Activities
    • Evaluate Presidents' actions and statements
      • Make a list of the 5 most important qualities of a President.
      • Identify an important action or statement from a President to illustrate each of those 5 qualities.
    • Propose a new Cabinet post for the President and your classroom
      • What new Cabinet post would you propose?
        • "Bureau of Youth and Student Affairs?" "Department of Technology?" "Office of Space Exploration?"
      • Create a name, logo and short description of your new organization as well as what that person should do in the job.
      • Have students to create a Classroom Cabinet to advise teachers and school administrators on school policy and climate.
        • Create a name, logo and short description of your proposed position as well as what students should do in the job.
    • Write a presidential report card
      • Choose a President and evaluate his performance with a report card grade and written explanation for your decision
        • Report Card Time: Inviting Students to Evaluate President Trump’s First Year in Office, The New York Times, January 25, 2018
    • Analyze the data
      • Part 1: Review Presidential performance ratings in the C-Span Presidential Historian Survey 2017
        • Some Presidents' ratings have gone up or down since 2000. Why might those ratings change in the minds of historians?
        • What criteria would you use to rate a President's performance?
      • Part 2: Review the ages of world and U.S. leaders
        • How would you explain the aging of U.S. political leadership and what do you think are its consequences?
        • What are potential advantages and possible drawbacks of older political leaders?

    Online Resources for the President and the Executive Branch

    3.3.1.1 UNCOVER: The FBI and the Post Office in American Politics

    The Federal Bureau of Investigation

    The FBI (Federal Bureau of Investigation) is among the most widely known and historically controversial of all federal government executive branch agencies. It was created by executive order on July 26, 1908 by Attorney General Charles J. Bonaparte (grandson of Napoleon Bonaparte's brother) as a special detective force within the U.S. Department of Justice.

    A graphic consisting of a red background with the words "Wanted by the FBI" printed on it in white capital letters in Western font.
    Figure \(\PageIndex{5}\): "Wanted By The FBI" | Public domain

    The agency was initially called the Bureau of Investigation and charged with enforcing the Mann Act (also known as the White-Slave Traffic Act). At that time, agents were involved in the Palmer Raids in 1919 that were part of the First Red Scare period in American politics.

    J. Edgar Hoover became its director in 1924, and the agency was re-named the Federal Bureau of Investigation in 1935. Under Hoover's leadership, the FBI was involved in some of the most controversial political dramas of the 20th century, including the Osage Murders, the Rosenberg Spy Case, and the surveillance of Martin Luther King, Jr. The agency was also engaged in the pursuit of notorious criminals from the national "most wanted list," such as John Dillinger and George "Machine Gun" Kelly.

    The FBI has a documented history of being selectively used against African Americans and political dissidents (Weiner, 2008). During the anticommunist Red Scare and McCarthyism of the 1950s, virtually every Black American organization and leader was suspected by the FBI. W.E.B. Du Bois was arrested in 1951 at age 82 for being an agent of a foreign power, and his passport was confiscated even after the charges were dropped. The singer Paul Robeson, who criticized the United States and praised the Soviet Union, had vigilantes attack his concerts and his music career ended. Later, throughout the 1960s, as historian David J. Garrow (2015) has documented, the FBI engaged in a massive surveillance and wiretapping campaign against Martin Luther King, Jr.

    The following sites - The FBI: A Brief History from the Federal Bureau of Investigation, FBI History from Syracuse University, and The FBI in American Politics - provide more about the agency's history.

    Suggested Learning Activities
    • Research and report on FBI surveillance activities
      • Search FBI records online through a section of the agency’s website known as FBI Records: The Vault that contains 6,700 documents including materials on civil rights, political figures, anti-war protestors and other citizens.
      • Create an infographic or presentation detailing key information from the FBI records about one of the following celebrities and political activists:
        • John Lennon
        • Helen Keller
        • Jazz musicians, including Max Roach, Duke Ellington, Louis Armstrong, Cab Calloway, and Nat King Cole
        • Eleanor Roosevelt, from PBS American Experience and from the Vault
        • Marilyn Monroe

    The Post Office in American Politics

    The Post Office - also known as the United States Postal Service (USPS) - is an agency in the executive branch of the United States government. It is the only organization, public or private, that delivers mail and packages to every single address in the country, from the largest metropolitan districts to the smallest communities (Postal Facts: Sizing It Up). Some private companies actually pay the Post Office to handle deliveries to more remote locations.

    Photograph of a 1906 USPS mail team in Alaska, using a dogsled to deliver mail across an expanse of snow.
    Figure \(\PageIndex{6}\): Delivering the mail by dogsled in Alaska, 1906 | "United States Mail dogsled team, Nome, April 8, 1906" by Frank H. Nowell

    In 2019 alone, the Postal Service delivered 143 billion pieces of mail to 160 million addresses. (The United States Postal Service Delivers the Facts).

    The history of the Post Office is a fascinating one, stretching back to the beginnings of the nation. Benjamin Franklin was the first Postmaster in 1775. The first postage stamps were issued in 1847. The Pony Express started in 1860, lasting only 19 months before being made obsolete by the transcontinental telegraph. Zip codes appeared in 1963, and the first Post Office iPhone app in 2009.

    A row of metal mailboxes, for the following services from left to right: FedEx, the University of California mail system, UPS, and the US Postal Service.
    Figure \(\PageIndex{7}\): "Mailboxes for FedEx, University of California, UPS and United States Postal Service" by Minesweeper

    There are important hidden histories and untold stories as well:

    • At the turn of the 20th century, the Post Office pioneered the use of pneumatic tubes in relaying mail across large distances in American cities. The New York City pneumatic tube system ran for 120 miles (The Secret Innovative History of the Post Office).
    • For much of the 20th century, the Post Office was the largest employer of Black workers, although those individuals were confined to low-wage jobs, often in racially segregated workplaces (African American Postal Workers in the 20th Century). Today, African-Americans make up 20% of postal employees nationwide, but the majority of workers in many urban centers (U.S. Post Office cuts threaten source of black jobs).
    • Beginning in the 1930s, Victor H. Green, a Black New Jersey postal worker, developed the "Negro Motorist Green Book," a guide used by African-Americans traveling through racially segregated United States during the mid-twentieth century.

    The Post Office today finds itself facing increased competition from private firms (FedEx, UPS, DHL), large budgetary shortfalls (the agency was $11 billion in debt at the end of 2019), and heightened political debates about its ability to handle the demands of dramatic increases in mail-in voting resulting from the COVID-19 pandemic.

    • Critics, including the Trump Administration, regard the Post Office as a failing organization that should be privatized and subject to direct competition in a mail and packaging delivery marketplace. In this view to save money, many Post Office locations should be closed, employees should pay more of their healthcare costs, and collective bargaining for workers should be ended (Privatizing the Post Office).
    • Advocates contend that the Post Office is an essential organization for a democratic society. It was established by the U.S. Constitution (Article 1, Section 8, Clause 7). It charges everyone the same amount of money for postage and services. It delivers mail, medicine, and other essential materials to every neighborhood. It serves as a common thread helping to unite an essentially divided country. Additionally, in the midst of the coronavirus pandemic, the Post Office will be called upon to deliver mail-in ballots in communities all across the country. Voting by mail is favored by a large percentage (7 in 10) of Americans (As States Move to Expand the Practice, Relatively Few Americans Have Voted by Mail, Pew Research Center, June 24, 2020).
    Suggested Learning Activities
    • Critical Inquiry Question: What is the best way to save the Post Office?
    1. Use this Table of Proposals to discuss the pros and cons of each proposal to save the Post Office.
    2. With your partner or partners, create your own proposal, add it to the document and list the pros and cons.
    3. Rank the proposals listed below (make sure to add your own) from strongest to weakest.
      • Increase funding by Congress.
      • Eliminate Saturday mail deliveries.
      • Invest employee retirement funds in the stock market.
      • Raise prices on stamps and delivery of packages.
    4. Be prepared to justify your rankings with a detailed explanation.
    5. Present your plans and rankings to the class. Encourage questions and discussion. Include a visual.
    6. Vote on the plan that has the most potential to save the Post Office.
    • Design a poster
      • Keeping in view the difficulties USPS has been facing in recent times, with immense loss to their budget due to Covid-19 pandemic and possibilities of shutting it down altogether, design a poster on Canva in support of USPS. Use your own experiences with this postal system as the inspiration for the poster.

    3.3.1.2 ENGAGE: Can a Woman Be Elected President of the United States?

    Women—who currently outnumber men in the U.S. population—hold less than one-third of the nation's elected political offices (Dittmar, 2019), and no woman has been elected President. In 2020, Kamala Harris, who is Black, South Asian, and a daughter of immigrants, became the first woman and first woman of color elected Vice-President of the United States.

    It is true that number of women being elected to government offices at the national, state, and local level is changing. More women than ever ran for and were elected to political office in the U.S. in 2018, and again in 2020. Nevertheless, according to data from the Inter-Parliamentary Union, the United States ranked 77 out of 189 nations in the world in percentage of women in national legislatures (Percentage of Women in National Parliaments, 2019). Rwanda (61%), Cuba (53%), Bolivia (53%) and Mexico (48%) have the highest percentage of women in political office.

    When the 117th Congress convenes in 2021, there will be 142 (or more depending on races still being decided) women in the House of Representatives, besting the previous record of the 127 set in 2018. There are 26 women (out of 100 members) in the U.S. Senate.

    Historically speaking:

    • Jeannette Rankin from Montana, an outspoken women's rights activist and pacifist who was the only member to vote against American entry into World War I, was the first woman elected to the House of Representatives in 1916.
    • Hattie Wyatt Caraway from Arkansas was the first woman elected to the Senate in 1932.
    • Shirley Chisholm was the first African American woman elected to Congress in 1968.
    • See the History of Women in Congress (65th Congress, 1917 to 116th Congress, 2021).
    • The 2020 election saw a record number of women (35) from the Republican Party elected to the House of Representatives; in 2018 there were 22 Republican women in the House (How a Record Number of Republican Women Will--and Won't--Change Congress, FiveThirtyEight, November 16, 2020).

    At the state level, approximately 2,118 women served in the 50 state legislatures in 2019, making up 28.7% of all state legislators nationwide. Nevada became the first state legislature to have a majority of women legislators in 2019.

    A Woman President

    Given this pattern of change, many are asking, "What needs to happen for a woman to elected President?"

    Article II, Section 1 of the Constitution sets the requirements for someone to become President or Vice-President: That person must be a natural-born citizen of the United States, at least 35 years old, and have been a resident of the country for 14 years. Kamala Harris, the successful 2020 Democratic Party Vice-Presidential nominee, was born in Oakland, California.

    Formal studio photograph of Victoria Woodhull.
    Figure \(\PageIndex{8}\): Victoria Woodhull ran for President in 1872 | "Portrait photograph of Victoria Claflin Woodhull" by Mathew Brady

    Victoria Woodhull (1872), Margaret Chase Smith (1964), Shirley Chisholm, Pat Schroeder (1988), and Hillary Clinton (2008 & 2016) were all women who unsuccessfully ran for President. Shirley Chisholm was the first Black person to run as a major-party candidate for President.

    Women who actively campaigned for President in 2020 included Senators Kamala Harris, Kirsten Gillibrand, Amy Klobuchar, and Elizabeth Warren; Representative Tulsi Gabbard; and author Marianne Williamson. Three women have been major party Vice-Presidential nominees: Geraldine Ferraro (Democrat: 1984); Sarah Palin (Republican: 2008); and Kamala Harris (Democrat: 2020).

    Edith Bolling Galt Wilson

    Many historians believe that Edith Bolling Galt Wilson, second wife of Woodrow Wilson, effectively functioned as the nation's first woman President from 1919 to 1921.

    Photograph of Edith Bolling Galt Wilson sitting in a topless carriage.
    Figure \(\PageIndex{9}\): "Edith Bolling Galt Wilson" | Public domain

    Heavily involved with her husband's Presidency, Edith Bolling Galt Wilson accompanied him to Europe while the Allies negotiated a peace deal to end World War I. She came back to the United States to campaign for Senate approval of the peace treaty and the League of Nations Covenant. When President Wilson had a stroke in October 1919, she took over many of the routine duties and details of the government. Although she referred to her role as her "stewardship," she was essentially the nation's chief executive until her husband's second term concluded in March of 1921.

    Given the history and the current dynamics of modern politics, what do you think needs to happen for a woman to be elected President?

    Suggested Learning Activities
    • Act as a historian/Drawing a conclusion
      • Based on the historical evidence, would you designate Edith Bolling Galt Wilson as the nation's first woman President? Why or why not?
      • For more on her role and why some call her America's first woman President, visit Edith Wilson from the American President site at the University of Virginia. There is more information at Edith Bolling Galt Wilson from the PBS film Woodrow Wilson.
    • Compare and contrast gender ratios in jobs
      • Research the gender ratios of different occupations and professions, including politics.
      • Why are there male-dominated and female-dominated professions?
      • How would you encourage more women into male-dominated fields and mens into female-dominated fields?
    • Dialog and debate
      • Is there a "Jill Robinson Effect" for women candidates?
        • Looking at women who seek to enter jobs traditionally held by men, political scientists Sarah Anzia and Christopher Berry have identified what they call the "Jill Robinson Effect" — named after Jackie Robinson, the first African American baseball player in the modern era who became one of the game's biggest stars after breaking the color barrier in 1947. "Robinson had to be better than almost any white player in order to overcome the prejudice of owners, players, and fans," Anzia and Berry wrote (2010).
          • Do you think that women who go into male-dominated jobs face prejudice and feel the need to be better than everyone else?
          • What about men who go into jobs that are predominantly held by women?
          • Do you have plans to pursue a career in a male- or female-dominant field?
    • Design a Women in Politics image
      • Following the historic 2020 election, an image created by artist Bria Goeller of Kamala Harris walking in front of the shadow of Ruby Bridges in 1960 went viral. The message was that the successes of changemakers today are made possible by the efforts of those who came before them in history.
      • Create your own version of the Kamala Harris/Ruby Bridges image by drawing a connection between an influential woman who shaped history with someone influential today.

    Online Resources for Women Running for President and Other Political Offices

    3.3.2 INVESTIGATE: The Legislative Branch - the House of Representatives and the Senate

    The Legislative Branch consists of the House of Representatives and the Senate which make up the United States Congress. Congress has authority to make and enact laws and declare war on foreign nations.

    For a brief overview, visit "How Congress Works" from Michigan Congressman Tim Walberg. Locate Members of Congress at Congress.gov from the Library of Congress or use Congress in Your Pocket from the App Store. Here are ideas and strategies for Contacting Congress to express your views on topics that matter to you.

    You can also explore the role and powers of Congress in our system of checks and balances in Topic 3.2 of this book.

    Photograph of the exterior of the U.S. Capitol Building.
    Figure \(\PageIndex{10}\): United States Capitol | "US capitol building" by Raul654

    The Senate

    The Senate is made up of 100 elected members, two from each state. Senators are elected for six-year terms and must be members of the state they represent. The Vice President presides over the daily meetings of the Senate. Prior to the passage of the 17th Amendment in 1913, Senators were elected not by popular vote, but by state legislatures (United States Senate website).

    Many school textbooks describe the design of the Senate as the result of a compromise at the Constitutional Convention to protect the interests of states with small populations who would have fewer seats in the House of Representatives. Newer scholarship contends that the two Senators for every state requirement was intended to protect the interests of southern slaveholders, for James Madison noted at the time that the real difference of interests between political viewpoints "lay, not between large and small but between Northern and Southern States. The institution of slavery and its consequences formed the line of discrimination" (quoted in Robin, 2020).

    Unequal Power

    Now, in the 21st century, the Senate "entrenches multiple types of inequality," contends political scientist Todd Tucker (2019, p. 4).

    • Senators from states with small populations (Wyoming and Vermont have the fewest people) represent millions fewer people than Senators from states with large populations (California and Texas have the most people).
      • For instance, Wyoming's 583,000 residents elect the same number of senators (two) as do California's 40 million people.
    • In 2021, 15 states with 38 million people elected 30 Senators (all Republicans) while California with 40 million people elected 2 Senators, both of whom are Democrats (Berman, 2021).
    • People living in Washington, D.C., Puerto Rico, and the other U.S. territories have no voting representation in the Senate.
    • The Senate is disproportionately richer, whiter, and more male than the population of the country as a whole.
    • Only 11 Black Senators have served in the Senate since 1789. Hiram Revels (Mississippi) was the first in 1870; Edward Brooke (Massachusetts) was the first to be popularly elected (1967); Raphael Warnock (Georgia) was the most recent in 2021.

    The increasing urban/rural divide in American politics (Democrats have voting majorities in big, largely urban states; Republicans control small, largely rural states) has established control of the Senate by the Republican Party.

    Following the 2020 Presidential election, Democrats represent 41.5 million more people than Republicans. Moreover, the 25 states with 25% of the population are represented by 40 Republican and just 8 Democratic Senators. Put differently, New York, New Jersey, California, and Massachusetts, states with the highest levels of urbanization along with large populations, have the largest partisan lean toward the Democratic Party; Wyoming, Montana, South Dakota, and Alaska, states with the lowest levels of urbanization and small populations, lean most heavily Republican (Benes, 2020). Yet each state has two Senators.

    Concluded one commentator, "Republicans can win a majority of Senate seats while only representing a minority of Americans" (Drutman, 2020).

    The Battle over the Filibuster

    The filibuster (a prolonged speech to delay a vote) is one of the enduring images of the United States Senate. As portrayed by actor James Stewart in the 1939 movie, Mr. Smith Goes to Washington, a single senator - in this case a man of high principles and great integrity - begins speaking against a proposed unfair legislative bill. He speaks and speaks, blocking a vote by continuing to talk, until his courageous actions change the hearts and minds of his colleagues and his viewpoint prevails.

    You can watch the filibuster scene from Mr. Smith Goes to Washington Filibuster on YouTube.

    The reality of the filibuster, historically and in today's politics, is quite different. A tradition of the Senate, but not a constitutional requirement, the filibuster began after the Civil War when White Southern senators used it to block civil rights legislation. In fact, between Reconstruction and 1964, the only legislation stopped by filibusters were civil rights bills (Jentleson, 2021). Segregationist South Carolina Senator Strom Thurmond once spoke against the Civil Rights Act of 1957 for 24 hours and 18 minutes, the longest filibuster on record. Reviewing the history, former President Barack Obama called the filibuster a "Jim Crow relic."

    At first, filibustering required a senator to begin speaking and continue to do so until the legislation was withdrawn or some other compromise was reached. More recently, just a simple objection by any Senator blocks a bill from being voted on by the Senate. It now takes a supermajority vote of 60 Senators (two-thirds of the 100 members) to end a filibuster. Ending a filibuster is known as cloture.

    With the modern-day Senate sharply divided between Democrats and Republicans, progressives and conservatives, it is hard to get 60 votes on any but the least controversial proposals. In the view of many, the filibuster allows the Republican Party to block most of Democratic President Joe Biden’s legislative proposals and, therefore, it should be removed. Already, the Senate does not allow members to filibuster spending bills or lower court judicial appointments. The filibuster is now a flashpoint of controversy over whether this practice maintains or prevents the Senate from functioning democratically and in the best interests of the people.

    The case for maintaining the filibuster rests in part on the widely held view that the Senate was designed to serve as a cautious, deliberate part of the government that endorses change only after consideration and compromise between opposing viewpoints. In that view, hot-button political issues do not result in instant legislation because the filibuster allows senators to block hasty actions that lack support from members of the both political parties.

    The case for eliminating the filibuster centers around its fundamentally undemocratic nature. If a single Senator can initiate a filibuster to block a vote on proposed legislation and if not enough Democrats and Republicans cannot agree to end it, then very few proposals will become laws. In effect, using a procedural maneuver, the minority can stymie the majority and legislation favored by many Americans cannot be passed.

    The Brennan Center for Justice has documented how the passing of bills by the Senate has declined in recent decades. In 1947, the Senate passed 52% of the bills introduced. In 2019-2020, just over 4% of the bills introduced were passed (The Case Against the Filibuster, October 30, 2020). The presence of the filibuster, along with increasing political partisanship, have contributed to the small number of bills being passed by the Senate today.

    Suggested Learning Activities

    • Pick a legal or public policy issue. Compete with classmates for who can talk the longest about it as an homework exercise, with an adult witness (e.g., parent, guardian, neighbor) to verify the length.
    • Debate or create a Public Service Announcement about whether the filibuster should be eliminated.

    House of Representatives

    The House of Representatives has 435 voting members, each of whom is elected every two years. There are 6 non-voting members, representing Washington D.C., Puerto Rico, and four U.S. territories. Each state is given a number of representatives directly proportionate to the population of that state as determined by census: the largest state, California has 52 representatives (a loss of one in the 2020 Census) while Alaska, Delaware, North Dakota, South Dakota, Vermont and Wyoming have just one.

    The average member of the House represents 747,184 people, many more than do the representatives of any other country in the world's national legislature. To have each member represent 50,000 people would require expanding the House to about 6,489 representatives ("The Case for Massively Expanding the US House of Representatives, in One Chart," VOX, June 4, 2018).

    A Speaker of the House is elected by the members of the House of Representatives and is third in line for the presidency. The House has the exclusive power to impeach the President and elect the President in the case of an electoral vote deadlock or if no candidate receives a majority of electoral votes. This has happened twice before, in 1800 and 1824.

    The 2020 Census readjusted the distribution of seats in the House, a process known as apportionment that happens every 10 years. Based on the Constitution, every state has at least one seat. The number of other seats has been decided by the method of equal proportions since 1941. This mathematical system seeks to minimize differences in representation between states. You can see the math in How Apportionment is Calculated from the Census Bureau.

    Amazingly, as reported by the New York Times, a shift in only a few people in the census count can lead to the loss or gain of a House Seat. New York State lost a seat by 89 people, the number of individuals needed to fill a single New York City subway car during off-peak hours and the slimmest margin for losing a seat in U.S. history. 26 people, the number of individuals who fit in a roller coaster at the Mall of America, were enough to save a seat in Minnesota - the slimmest margin for saving a seat in history. Montana went from one seat to two based on a gain of just over 6,000 people.

    The political implications of changing the number of seats is unclear, but both major political parties are eager for opportunities to gain more seats. Importantly, census-taking is far from a perfect process and undercounts and overcounts do happen. Demographers have documented that Blacks, Hispanics, and Native Americans living on tribal lands have been undercounted in at least one of the last three Census (2020 Census: How Undercounts and Overcounts Can Hurt US Communities). Children too are undercounted, with Black and Hispanic youngsters most likely to be missed in the count.

    Graphic of the 50 US states, showing the number of representatives gained or lost by each state in the 2020 from the 2010 census.
    Figure \(\PageIndex{11}\): Apportionment of the U.S. House of Representatives Based on the 2020 Census | Public domain

    Congressional Committees and Caucuses

    Much of the work done by members of Congress happens in committees and caucuses. Committtees are formal House and Senate organizations that meet to hold hearings and investigations, review legislation, and more recommendations to the larger body. There are currently 250 committees; click here to learn about each committee and its membership.

    The word caucus comes from the Algonquian Indian language and means "to meet together." In Congress it refers to informal groups of senators and representatives who come together to discuss issues, develop strategies, and in some cases propose and promote legislation. Here is the list of caucuses for the 116th Congress.

    Women of Color in Congress

    Beginning in 2021, in addition to Vice President Kamala Harris, the 117th Congress will have the highest-ever number of women of color, including Black, Asian and Pacific Islander, Hispanic, Middle Eastern and Native American representatives (Women of Color Were Shut Out of Congress for Decades. Now They're Transforming It, FiveThirtyEight, January 18, 2021). The figure of 49 women of color does not include non-voting delegates from U.S. territories, and the number will change when Deb Haaland and Marica Fudge are confirmed as members of the Biden Administration's Presidential Cabinet.

    A place in Congress has been a long time coming for women of color. Patsy Mink was the first woman of color in Congress, elected to the House of Representatives in 1965. She was followed by Shirley Chisholm in 1968. Carol Moseley Braun became the first woman of color Senator in 1993.

    Why do you think women of color have lagged so far behind White women in being elected to Congress?

    The Congress in U.S. Government Choice Board (click here to make your own copy of the choice board)

    Digital choice board for the topic of The Congress in U.S. Government
    Figure \(\PageIndex{12}\): "The Congress in U.S. Government" 2021 Choice Board by Robert W. Maloy, Ed.D. & Torrey Trust, Ph.D., College of Education, University of Massachusetts Amherst.
    Media Literacy Connections: Members of Congress Use Social Media

    Congress Soars to New Heights on Social Media, declared the Pew Research Center in July 2020. Virtually every member of the Senate and the House of Representatives is now active on social media, including Twitter, Facebook, Instagram, and YouTube. Members of Congress share information with voters, react to events, and take positions on public policy issues, all while seeking to add more followers to their accounts.

    The following activities encourage a critical in-depth exploration of how members of congress use social media:

    Suggested Local Activities
    • Research: How diverse is Congress?
    • Engage in civic action
      • Votetocracy, the People's Congress allows everyday citizens to "vote" on legislation pending in Congress.
      • What legislation did you vote on, and how did you decide how to vote
    • Simulate the legislative process with Today's Vote in the Classroom
      • This resource from the Edward M. Kennedy Institute for the Senate simulates the legislative process while examining actual legislation under consideration by Congress.

    Online Resources for the Legislative Branch

    • Legislative Branch, U.S. Capitol Visitor Center
    • Every Member of Congress' Wealth in One Chart, Roll Call (March 2, 2018)
    • Official website for Congress and federal legislative information
      • View current legislative activities
      • Find current members of Congress
    • Misrepresentation in the House of Representatives, Brookings (February 22, 2017)
      • The Republican Party's Seat Bonus - a higher percentage of seats than votes gained in elections. It is currently as high as any advantage held by any political party, all the way back to 1946.

    3.3.2.1 UNCOVER: Electing LGBTQIA Legislators

    In 1974, Kathy Kozachenko, running as a Human Rights Party candidate for the Ann Arbor, Michigan City Council, became the first openly gay person to be elected to public office in the United States.

    U.S. Senator Tammy Baldwin of Wisconsin makes a speech at the Department of Justice LGBT Pride Month Observance Program in 2013.
    Figure \(\PageIndex{13}\): U.S. Senator Tammy Baldwin of Wisconsin discusses the need for further progress in securing and protecting the rights of LGBT citizens and encouraging them to become active public servants in their communities. | "United States Senator Tammy Baldwin, 2013" by Amy Mathers

    One year later, Elaine Noble, an openly gay candidate, was elected state representative in Massachusetts. Harvey Milk, a gay man, was elected to the San Francisco Board of Supervisors in 1977. In 1993, Althea Garrison, a closeted trans woman, was elected to the Massachusetts House of Representatives. Stacie Laughton, a self-identified trans woman, was elected to the New Hampshire House of Representatives in 2012.

    Since those firsts, LGBTQIA politicians have transformed United States politics, bringing gender equality and transgender rights to the forefront of people’s attention and changing the definition of who can and should be elected to public office. By 2019, an LGBTQIA person has been elected to public office in all 50 states. Pete Buttigieg, the former mayor of South Bend, Indiana was a prominent candidate for the 2020 Democratic Party nomination for President.

    Electing LGBTQIA individuals to political office is part of a much larger and wide-ranging shift in public attitudes toward gay, lesbian, and transgender people. What events and personalities helped bring about these changes?

    In an interview for the NPR Hidden Brain podcast, sociologists Michael Rosenfeld and Mahazarin Banaji offer the following answers: Gay people became more visible as more people came out of the closet in the 1980s and 1990s; television shows began featuring realistic gay characters, the AIDS crisis and the marriage equality movement further raised awareness of gay issues and gay rights (NPR, 2019). The initiation of LGBT History Month in 1994, the beginning of National Coming Out Day in 1988 and the National Park Service's 2016 report on historic LBGT sites in the United States further propelled changes in attitudes (Waxman, 2019). At the same time, the FBI has reported a rise in gender-identity hate crimes in the country. In many schools, LGBTQIA students face hostile hallways of hateful language, bullying, and threats of assault.

    Suggested Learning Activities
    • State your view
      • What changes in society and culture do you think most influenced changes in the public view of LGBTQIA people and opened the door for electing gay, lesbian, and transgender individuals to public office?
    • Create a poster

    Online Resources for LGBTQIA Politicians

    3.3.3 INVESTIGATE: The Federal Judicial Branch, the Supreme Court, and State Courts

    A court is a place where people go to resolve disputes legally and peacefully. Through an adversary process, each side presents their side of a case to an independent judge, groups of judges, or jury of citizens who impartially decide what really happened. Courts maintain and sustain the rule of law in a democracy.

    To learn more, check out How Courts Work from the American Bar Association. You can also go to the resourcesforhistoryteachers wiki page The Supreme Court and Other Courts in American Government.

    Judges in this country are either appointed or elected and have been predominantly men. Florence Ellinwood Allen was the first woman elected to a judicial in the United States in 1920; Genevieve Rose Cline was the first woman appointed to the federal courts in 1928. In 1939, Jane Bolin became the first Black female to serve as a judge in the US. Sandra Day O'Connor was the first woman to serve on the Supreme Court, appointed by President Ronald Reagan in 1981. Today, about 36% of sitting judges are women, maintaining what the American Constitution Society has termed the "gavel gap" (Women's Underrepresentation in the Judiciary, Represent Women, 2017).

    The United States has a dual court system consisting of the federal judicial branch (that includes the Supreme Court) and state courts. The Federal Judiciary Act of 1789 established the federal court system apart from state courts.

    The Federal Judicial Branch

    The Judicial Branch of the federal government is made up of federal courts and the Supreme Court.

    Marble statue by James Earle Fraser, entitled Contemplation of Justice, located on the main steps of the Supreme Court Building.
    Figure \(\PageIndex{14}\): Contemplation of Justice Statue by James Earle Fraser on the Supreme Court Building's main steps | Architect of the Capitol, public domain

    In addition to the Supreme Court, there are 94 federal district courts and 13 courts of appeals (11 regional as well as the D.C. and Federal circuits) in the federal court system (Introduction to the Federal Court System).

    The federal courts hold the power of interpreting the law, determining the constitutionality of that law, and then applying it to individual cases. Once a decision is made by the Supreme Court, lower courts must apply that decision.

    The Supreme Court

    The nine Justices of the Supreme Court are appointed by the President and confirmed by the Senate. Presently, there is one Chief Justice and eight Associate Justices. A Supreme Court Justice can only be removed by impeachment from the House and conviction from the Senate.

    The Supreme Court has both original jurisdiction (in cases involving conflicts between states) and appellate jurisdiction (in cases involving the United States and a state, cases involving states against citizens, and cases concerning ambassadors). Original jurisdiction means the Supreme Court gets to rule first and finally on a case. Appellate jurisdiction means the Supreme Court gets to either accept or modify the rulings of lower courts. The United States Courts' Educational Resources website provides more information.

    Each year, the Court will receive some 7,000 to 8,000 requests for review, known as a writ of certiorari. It will choose fewer than 80 of those requests for full review.

    Within the evolving system of American Government, the Supreme Court has achieved a position of judicial supremacy, meaning the law is whatever the Court says it is (Whittington, 2007). In recent decades, noted David Leonhart (2020) in the New York Times, the Court has intervened in the 2000 election (upsetting liberal and progressive groups), legalized same-sex marriage (upsetting conservative and religious groups), and is continuing to take an activist stance toward overturning laws. Groups from both sides of the political spectrum see the Court as a vehicle for ensuring their policies are maintained, a role the Court has not played throughout United States history.

    Infographic showing how a case gets to the Supreme Court. Most cases get there on appeal; most appeals come from a federal court but some come from a state court for a case dealing with federal law. Most cases start at the state trial courts, then move through the state court of appeals, state supreme court, federal trial court, and U.S. court of appeals before they can be considered for review by the U.S. Supreme Court.
    Figure \(\PageIndex{15}\): "Infographic: How the Supreme Court Works" | Public domain

    For more information, link to Do Supreme Court Dissents Make a Difference to the Law?

    The Shadow Docket

    In addition to the 60 to 70 cases that the Court hears each term with full briefings, oral arguments, and lengthy, signed opinions by the Justices, there is also a shadow docket where thousands of cases are decided by unsigned, one- or two-sentence opinions without the public having access to the arguments or which justices voted one way or the other (Supreme Court "Shadow Docket" Under Review by the U.S. House of Representatives, American Bar Association, April 14, 2021).

    In late August, 2021, the shadow docket received national publicity when the Supreme Court issued an unsigned, single-paragraph 5 to 4 decision that allowed the state of Texas to ban nearly all abortions (in this case, the four justices in the minority did issue separate dissents). For more, go to Rulings Without Explanations from the New York Times.

    In the past, shadow docket decisions were usually not controversial, such as granting parties more time to file briefs or deciding whether or not to grant an emergency relief hearing. More recently, the Court has begun resolving politically-charged questions about immigration policies, COVID-19 pandemic regulations, federal executions policies, and election rules via this process.

    During the Trump Presidency, shadow docket cases have been largely decided along ideological lines, with conservative justices and conservative viewpoints prevailing ("The Supreme Court's Enigmatic 'Shadow Docket' Explained," Vox, August 11, 2021). It will be important to track shadow docket decisions during the Biden Presidency as a conservative justices hold a majority on the Court.

    The Gavel Gap

    In a 2020 report, the Center for American Progress examined the gavel gap, the term given to the lack of women judges at different levels of the American court system. Looking across federal courts below the Supreme Court, researchers found that "female judges make up just 27 percent of all lower federal court sitting judges and 34 percent of active judges. For their part, women of color comprise just 7 percent of all sitting judges and 10 percent of all active judges serving on the lower federal courts."

    Reforming or Restructuring the Supreme Court

    The Supreme Court has not always had 9 justices. Originally there were six, a Chief Justice and five Associate Justices. A seventh justice was added in 1807, two more in 1837, and a tenth briefly in 1863. The Judiciary Act of 1869 set the current number of seats on the Court at nine (Why Does The Supreme Court Have Nine Justices?).

    In 1937, President Franklin Roosevelt, tired of opposition to New Deal policies by what he regarded as the "nine old men" of the Supreme Court, asked Congress to appoint six new justices to the Court, an action now known as the court-packing plan. A constitutional crisis ensued that was averted only when one Justice began voting to uphold New Deal legislation and another retired. Roosevelt would eventually appoint nine new justices between 1937 and 1943, but the total number of justices was never increased beyond nine (When Franklin Roosevelt Clashed with the Supreme Court--And Lost).

    The Trump Presidency and the death in September 2020 of Justice Ruth Bader Ginsburg have again brought the issue of reforming and/or restructuring the Supreme Court to the center of American politics. No other democracy in the world gives lifetime appointments to its supreme court judges; every other country has term limits, a mandatory retirement age, or both for its highest court judges (Vox, February 16, 2016).

    Progressive groups have urged reforms in light of the Court's steady set of conservative rulings on issues facing workers, people of color and the poor. Since the 1960s, the Court's membership has grown more conservative; justices appointed by Republican Presidents outnumber those appointed by Democrats 14 to 4 between 1968 and 2020 (before the appointment of Amy Coney Barrett to replace Ruth Bader Ginsburg). As Adam Cohen (2020, p. xvi) wrote in the Introduction to Supreme Inequality: The Supreme Court's Fifty-Year Battle for a More Unjust America, "The Court's decisions have lifted up those who are already high and brought down those who are low, creating millions of winners and losers."

    There are now many proposals for reforming the Supreme Court: 1) increasing the number of justices; 2) setting term limits and/or mandatory retirement ages; 3) Congress passing legislation restricting what areas of the law the Court can review; 4) requiring a supermajority (6 or 7) votes to overturn federal or state laws. Russell Wheeler of Brookings offers a pro/con review of some of these proposals in his article Should We Restructure the Supreme Court?

    State Courts and Racial Disparities

    The United States also has a system of state courts that function along side federal courts. "State courts are courts of 'general jurisdiction'. They hear all the cases not specifically selected for federal courts. Just as the federal courts interpret federal laws, state courts interpret state laws" (quoted in State Courts vs. Federal Courts, Judicial Learning Center, 2019). State courts hear both civil and criminal cases based on the laws of the state. Since federal courts are limited in their role, most disputes are handled in state courts.

    Try a Student Challenge from the Judicial Learning Center to decide whether a case would be heard in state or federal court.

    Despite the ideals of impartial justice, racial differences in sentencing in state courts and the larger criminal justice system continue to be an enormous problem. Racial disparities occur from the dissimilar treatment of similarly situated people based on race by the criminal justice system (Reducing Racial Disparity in the Criminal Justice System, The Sentencing Project, 2008). Looking a state courts in Massachusetts, a study by the Criminal Justice Policy Program at Harvard Law School found that Blacks were imprisoned at a rate of 7.9 times that of Whites, and Latinx 4.9 times that of Whites (Racial Disparities in the Massachusetts Criminal System, September 2020).

    Suggested Learning Activities

    Online Resources for the Judicial Branch

    3.3.3.1 ENGAGE: What Supreme Court Cases Should All Teenagers Know?

    In 1966, a 14-year-old Arizona youth, Gerald Francis Gault, was arrested for allegedly making an obscene phone call. His parents were not notified by police at the time of the arrest. Gault was brought before a juvenile court judge and sentenced to seven years in a state industrial school detention facility; an adult convicted of the same offense would have received only a 60-day sentence. In appealing the decision, Gault contended that he did not receive due process of law under the 14th Amendment of the Constitution.

    Inscription above the pillars at the front of the Supreme Court building, stating "Equal justice under law."
    Figure \(\PageIndex{16}\): "Equal Justice Under Law" inscription at the front of the United States Supreme Court | "EqualJusticeUnderLaw" by UpstateNYer

    In a 1967 landmark In re Gault decision, the Court agreed, establishing the rule that juveniles facing delinquency hearings have a constitutional right to an attorney as well as the right to receive written notice of charges against them, the opportunity to call witnesses, the opportunity to cross-examine those testifying against them, and protection against self-incrimination. The due process rights of adults, the Court said, apply to teenagers as well. You can learn more about the case from the NPR podcast "Gault Case Changed Juvenile Law."

    In re Gault is one of a number of Supreme Court cases that directly impacted the lives and rights of middle and high school students.

    • We the Students: Supreme Court Cases For and About Students by Jamin B. Raskin (2015) is an excellent source of information.
    • The North St. Paul-Maplewood-Oakdale School District in Minnesota has a list of 10 Supreme Court cases every student should know. Included on that list is Tinker v. Des Moines, which we discuss in Topic 5 of this book.

    What other cases should all teenagers know in order to more fully understand their rights and responsibilities as citizens of the United States?

    Student Legal Rights in School Choice Board (click here to make your own copy of the choice board)

    Digital choice board for the topic of Student Legal Rights in School.
    Figure \(\PageIndex{17}\): "Student Legal Rights in School" 2021 Choice Board by Robert W. Maloy, Ed.D. & Torrey Trust, Ph.D., College of Education, University of Massachusetts Amherst
    Suggested Learning Activities
    • Sketchnote a court case summary
      • Review 10 Supreme Court Cases All Teens Should Know and Supreme Court Cases Where Students Influenced the Constitution
        • Select one supreme court case and identify its main constitutional issue(s) and bottom line decision.
        • State whether if you would have decided the case differently and why.
        • Create a sketchnote revealing what you learned and your thoughts about the court case.
    • Conduct a writing-based study of an important case about a student in schools
      • Give students a summary of the facts of the case, but not how the Supreme Court decided it.
      • Create 3 groups within the class to play the following roles:
        • Lawyers arguing for the student(s)
        • Laywers arguing against the student(s)
        • Judges who will decide the case
      • Each group will meet to analyze the facts and define what constitutional or legal question is at stake in the case.
        • Lawyers will submit a written summary of how they intend to defend or prosecute the case.
        • Judges will submit a written summary of how they will fairly evaluate the arguments of the lawyers to decide the case.
      • After the groups present their summaries, give them the actual case decision and selected primary source resources about what the lawyers said during the trial and what the justices said in their decision.

    Standard 3.3 Conclusion

    The Executive, Legislative, and Judicial branches have specific roles and powers within the American system of government. INVESTIGATE outlined the functions of the President (executive), the Congress (legislative), and the Supreme Court (judicial). UNCOVER explored the history of the Federal Bureau of Investigation (FBI), an executive branch agency, as well as the history of electing of LGBTQIA legislators. ENGAGE asked two questions: a) Can a woman be elected President? and b) What Supreme Court cases should all teenagers know?

    This page titled 3.3: The Roles of the Congress, the President, and the Courts is shared under a CC BY-NC-SA 4.0 license and was authored, remixed, and/or curated by Robert W. Maloy & Torrey Trust (EdTech Books) via source content that was edited to the style and standards of the LibreTexts platform; a detailed edit history is available upon request.