Chapter 10 The Judiciary Pearson Education, Inc. © 2006 American Government 2006 Edition (to...

Chapter 10

The Judiciary

Pearson Education, Inc. © 2006

American Government2006 Edition(to accompany Comprehensive, Alternate, Texas, and Essentials Editions)

O’Connor and Sabato


The Constitution and the Creation of the Federal Judiciary

Framers devoted little time to the creation of the judiciary. Believed it posed little of the threat of tyranny

they feared from the other two branches. Anti-federalists did see the judiciary as a threat.

Framers left it to Congress to design the federal judiciary system below the Supreme Court. Judiciary Act of 1789 did so.


Article III

Did not settle the question of judicial review Not explicitly stated in the Constitution Allows the judiciary to review the

constitutionality of acts of the other branches of government and the states Judicial review settled with Marbury v.

Madison (1803) for national government’s acts and Martin v. Hunter’s Lessee (1816) regarding state law


MARBURY v. MADISON (1803) Marbury given judgeship by Federalists. Jefferson as

new Pres (anti-fed) told Secy Madison to not deliver the commissions.

Marbury sues under Jud. Act of 1789 which gave the Court power of mandamus, could require Madison to deliver the commission

CJ Marshall hated Jefferson but doesn’t want to weaken Court’s position

CJ Marshall declares that small portion of Jud. Act expanding original jurisdiction of S.Ct. as unconstitutional; sorry Marbury, Court can’t help you

Establishes new power for judiciary: judicial review; strengthens judiciary as 3rd and co-equal branch


The Judicial Power of the United States Supreme CourtThe following are the types of cases the Supreme Court was given the jurisdiction to hear as initially specified in the Constitution, Article III:

• All cases arising under the Constitution and laws or treaties of the United States

• All cases of admiralty or maritime jurisdiction

• All cases affecting ambassadors or other public ministers

• Cases in which the United States is a party

• Controversies between a state and citizens of another state

• Controversies between two or more states

• Controversies between citizens of different states

• Controversies between citizens of the same states claiming lands under grants in different states

• Controversies between a state, or the citizens thereof, and foreign states or citizens thereof


Article III Section I gave Congress the authority to

establish other courts as it saw fit. Section II specifies the judicial power of the

Supreme Court and discusses the Court’s original and appellate jurisdiction. Also specifies that all federal crimes, except

those involving impeachment, shall be tried by jury in the state in which the crime was committed.

Section III defines treason, and mandates that at least two witnesses to the overt act appear in such cases or the defendant confess in open court.


Article III Framers gave federal judges tenure for life “with good

behavior.” Did not want judges to be subject to the whims of politics,

the public, or politicians Hamilton argued in Federalist 78 that the “independence of

judges” was needed “to guard the Constitution and the rights of individuals.”

Some checks on judiciary include: Congress has the authority to alter the Court’s jurisdiction. Congress can propose constitutional amendments that, if

ratified, can effectively reverse judicial decisions. Congress can impeach and remove federal judges. President (with advise and consent of Senate) appoints

federal judges. President refuse to enforce Ct decision – ex. Jackson


Texas Judicial Qualifications and Personal Characteristics

More than 3,100 judges in Texas Except for municipal judges all are

selected in partisan elections Texas Constitution establishes the

qualifications for most judges These vary by judicial office Variation in terms of education and

training Personal characteristics are similar


Texas Judicial Qualifications

Terms: 2-6 yrs Above JP need

Age Atty license Experience


The Judiciary Act of 1789 and the Creation of the Federal Judicial System

Established the basic three-tiered structure of the federal court system District courts: at least one in each state, each

staffed by a federal judge. Circuit Court: avenue for appeal.

Each circuit court initially composed of one district court judge and two itinerant Supreme Court Justices who met as a circuit court twice a year

Supreme Court size set in the Act – chief justice and five associates Number of justices set to 9 in 1869.


The Early Court

First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up.

Later, the court decided only one major case.

Relatively lowly status One associate judge left to become chief

justice of a state supreme court.


The Early Court First decade, Court not co-equal but it did

assert itself. Declined to give President Washington advice on

the legality of some of his actions Attempted to establish the Court as an

independent, nonpolitical branch Does not hear hypothetical cases; only

actual cases of controversy Tried to advance principles of nationalism and to

maintain the national government’s supremacy over the states

Began to pave the way for announcement of the doctrine of judicial review


The US Legal System Trial courts

Courts of original jurisdiction where a case begins Appellate courts

Courts that generally review only findings of law made by lower courts

*Jurisdiction Authority vested in a particular court to hear and

decide the issues in any particular case Original jurisdiction: The jurisdiction of courts that

hears a case first, usually in a trial. Courts determine the facts of a case under their original jurisdiction.

Appellate jurisdiction: The power vested in an appellate court to review and/or revise the decision of a lower court.


The American Legal System Criminal law

Codes of behavior established by society related to the protection of property and individual safety

Civil law Codes of behavior related to business and

contractual relationships between groups and individuals


The Federal Court System Constitutional courts

Federal courts specifically created by the U.S. Constitution or Congress pursuant to its authority in Article III

Legislative courts Courts established by Congress for specialized

purposes, Ex.: Court of Military Appeals, US Tax Cts, Ct of

Internat’l Trade, Ct of App for Vet Claims, territorial cts Judges have term limits


The Federal Court System

District Courts 94 federal district courts staffed by 646

active judges, assisted by more than 300 retired judges

No district courts cross state lines. Every state has at least one federal

district court. The most populous states have four (CA,

TX, and NY). Texas – 5th circuit, Southern district


Original Jurisdiction of Federal District Courts

Involve the federal government as a party Present a federal question based on a claim

under the U.S. Constitution, a treaty with another nation, or a federal statute

Involve civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000


District Courts Each federal judicial district has a U.S.

attorney. Nominated by the president and

confirmed by the Senate. Becomes district’s chief law enforcement

officer (prosecutor) considerable amount of discretion as to

whether they pursue criminal or civil investigations or file charges against individuals or corporations.


The Courts of Appeals The losing party in a case heard and decided in a federal

district court can appeal the decision to the appropriate court of appeals.

11 numbered circuit courts Twelfth, D.C. Court of Appeals

Handles most appeals involving federal regulatory commissions and agencies

Thirteenth, U.S. Court of Appeals for the Federal Circuit Deals with patents and contract and financial claims against

the federal government Have no original jurisdiction Try to correct errors of law and procedure that have

occurred in the lower courts or administrative agencies Hear no new testimony.


The Federal Court System


The Supreme Court Decisions of the court of appeals are

binding on only the district courts within the geographic confines of the circuit.

Decisions of the Supreme Court are binding throughout the nation and establish national precedents. Reliance on past decisions or precedents to

formulate decisions in new cases is called “stare decisis.”

Allows for continuity and predictability


How Federal Court Judges Are Selected

Often a very political process Judges nominated by president and

confirmed by Senate Can reflect the ideological stamp of the

president Senatorial Courtesy

A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs.


Characteristics of District Court Appointees from Carter to Bush


Who Are Federal Judges?

Typically they have held other political offices. State court judge or prosecutor Most have been involved in politics White males tend to dominate


Appointments to the U.S. Supreme Court

Nomination Criteria Competence Ideology or Policy Preference

Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer’s original intentions.

Pursuit of Political Support from Various Groups


The Supreme Court, 2004


The Supreme Court Confirmation Process

Investigation Lobbying by Interest Groups Senate Committee Hearings Senate Vote


Interest Groups


The Structure of the Texas Judiciary

The Supreme Courts Texas Supreme Court

Court of last resort in civil and juvenile cases Texas Court of Criminal Appeals

Court of last resort in criminal cases Petition for review

Request for Texas Supreme Court review, which is granted if four justices agree

Applications for discretionary review Request for Texas Court of Criminal Appeals

review, which is granted if four judges agree


The Supreme Court Today: Deciding to Hear a Case

9,000 cases were filed at the Supreme Court in its 2003-2004 term. Not always the norm 1940s fewer than 1000 cases filed annually During the 2003-2004 term, 90 cases were

argued and 73 signed petitions were issued. Modern period, many of the cases have involved

Bill of Rights issues


Supreme Court Caseload, 1950-2004 Terms


Supreme Court Today Court has two types of jurisdiction

Original Appellate

Rule of Four Court controls its caseload through the writ of certiorari

process. All petitions for certiorari must meet two criteria:

The case must come either from a U.S. court of appeals, a special three-judge district court, or a state court of last resort.

Case must involve a federal question. This means that the case must present questions of interpretation of federal constitutional law or involve a federal statute, action or treaty.

Cert pool Discuss list Cert granted when at least four justices vote to hear a case


Supreme Court Cases


What Do Supreme Court Clerks Do?

Supreme Court clerks are among the best and brightest recent law school graduates. Almost all first clerks for a judge on one of the courts of appeals. After their Supreme Court clerkship, former clerks are in high demand. Firms often pay signing bonuses of up to $80,000 to attract clerks, who often earn over $130,000 their first year in private practice.

Tasks of a Supreme Court clerk including the following:• Perform initial screening of the 9,000 or so petitions that come to the Court

each term• Draft memos to summarize the facts and issues in each case, recommending

whether the case should be accepted by the Court for full review• Write a “bench memo” summarizing an accepted case and suggesting

questions for oral argument• Write the first draft of an opinion• Be an informal conduit for communicating and negotiating between other

justices’ chambers as to the final wording of an opinion


How Does a Case Survive the Process? Characteristics of the cases the Court accepts:

The federal government is the party asking for review. Solicitor General

The case involves conflict among circuit courts. The case presents a civil rights or civil liberties

question. The case involves ideological and/or policy

preferences of the justices. The case has significant social or political interest, as

evidenced by the presence of interest group amicus curiae briefs.

Refusals: political question or too emotionally controversial and little precedent


Table 10.7

Amicus Curiae Briefs in an Affirmative Action case: Grutter v. Bolinger and Gratz v. Bolinger (2003)


Hearing and Deciding a Case

Oral arguments – 30 minutes @ side

The conference and the vote, majority 5-4 to 9-0

The opinion Majority – force of law Concurring – agrees with decision but

for different reasons Dissenting


Judicial Philosophy and Decision Making

Judicial restraint: A philosophy of judicial decision making that

argues courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own sense of principles.

Judicial activism: A philosophy of judicial decision making that

argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty.


Models of Judicial Decision Making

Behavior characteristics Social background

Attitudinal modelStrategic ModelPublic opinion


The Supreme Court and the American Public


Judicial Policy Making and Implementation

Policy making: More than 100 federal laws declared

unconstitutional. Ability to overrule itself

Judicial Implementation: Refers to how and whether judicial decisions

are translated into actual public policies affecting more than the immediate parties to a lawsuit.

Dependent upon executive branch


Judicial Policy Making and Implementation (cont)

Judicial remedies: court ordered solutions to cases

ex. Busing and prison overcrowding cases, redrawing Texas congressional districts


Table 10.5


Current Court

CJ – John Roberts Newest justice – Sam Alito


Criticisms of the Texas Judicial Branch

Reforming Campaign Finance High cost of judicial campaigns Judicial Campaign Fairness Act in 1995

Act limits contributions to judicial candidates, depending on the office

Several loopholes in the act No requirement that a judge who has

received a large contribution from a lawyer or party to a suit before the court recuse him/herself from the case



Increasing Minority Representation on the Bench Why so few minorities on the bench in

Texas? High cost of judicial campaigns Racially polarized voting in statewide and

countywide elections Small numbers of Hispanics and African

Americans who are licensed attorneys



Reforming the Court Structure Overlapping jurisdiction Allows an attorney to “shop” for justice Various suggestions for reform including merger

of the two supreme courts Reforming Judicial Selection

Recommendations have been made that Texas adopt a merit system for selecting judges

Other reforms suggested but no movement on compromise given the varied interests in judicial selection


Misc Texas has an automatic appeal on all death

penalty cases The Warren Court was the most liberal ct,

with the Burger Ct next Texas ‘ Atty Gen gives advisory opinions on

hypothetical situations, (ex What if a school refuses to give the TAKS test?). These advisory opinions have the force of law until challenged in an actual case.

Chapter 10 The Judiciary Pearson Education, Inc. © 2006 American Government 2006 Edition (to...

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