Judiciary (Supreme Court) Whenever you put a man on the Supreme Court, he ceases to be your friend. Harry S. Truman The Supreme Court has ruled that they cannot have a nativity scene in Washington, D.C. This wasn't for any religious reasons. They couldn't find three wise men and a virgin. Jay Leno Least Dangerous Branch Article III, as written, didnt give any enumerated or implied powers to the judiciary branch Alexander Hamilton penned in the Federalist # 78 that the judiciary would be the least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse. It had no enforcement powers and could not raise or spend money Constitution Article III of the Constitution establishes: a Supreme Court in which the judicial power of the United States is vested life tenure or 'good behavior' for judges judges receive compensation that cannot be diminished during their service such inferior courts as Congress may choose to establish the original jurisdiction of the Supreme Court The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states. Today Its important not to think of the Court only as a legal entity: it is a political institution that makes both policy and law Why is the Court so powerful today? First, the Court has the power of judicial review, which is the chief weapon the Court uses in our system of checks and balances Second, the Court is constantly ruling on the most important constitutional issues of the day, making decisions involving millions of dollars and affecting millions of people Common Law Traditions The Courts decisions are called precedents (d) - Decisions that will serve as a guide for future cases Common law then, operates under the principle of stare decisis (d) - Let the decision stand Gives our American Legal system both predictability and stability The principle of stare decisis is crucial because without it, laws could be constantly changing - making life chaotic Common law, then, is judge-made laws that over time, becomes common to all of society American Legal System Dual Court System There is one federal court system and 50 state court systems that exist concurrently Cases may be heard in either system and both systems are basically three-tiered, as established by the Judiciary Act of 1789 Before a state or federal court can hear a case, it must have jurisdiction-that is, the power to hear a case Jurisdiction Terms Original Jurisdiction (d) - Where a case is first heard. The court decides the facts of the case (usually trial court with jury) Appellate Jurisdiction (d) - Hears an appeal from the party that LOST at the first level. This court does not concern itself with the facts of the case but whether or not the trial was fair. In other words, was due process followed? American Legal System State Jurisdiction State courts can have both original and appellate jurisdiction. State Supreme Courts (AKA Superior Courts) has the final word in state system. These courts can do one of two things: Affirm (approve) the lower courts ruling Reverse the lower courts ruling and grant a new trial American Legal System Federal Jurisdiction The federal courts has jurisdiction in all cases involving: 1. Hears cases involving federal laws, treaties or the US Constitution. All issues beyond the scope of the states 2. Lawsuits between citizens of different states; foreign countries where the money involved exceeds $75,000 American Legal System Sources of American Law The body of American law includes: Federal and state constitutions Statutes passed by legislative bodies Administrative law and case law the legal principles expressed in court decisions Constitutions The constitutions of the federal government and the states set forth the general organization, powers and limits of government The U.S. Constitution is the supreme law A law declared unconstitutional cannot be enforced Similarly, the state constitutions are supreme law within their borders (unless they conflict with the U.S. Constitution or federal laws and treaties made in accordance with it) Sources of American Law Amendment II A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. Statutes and Administrative Regulations Statutes (laws enacted by legislatures) increasingly have become more important in defining the rights and obligations of individuals These statutes typically cover three areas Federal statutes -federal government (may cover areas ranging from hazardous waste to federal taxation) State statutes state government (may include criminal codes and commercial laws) Ordinances Cities and counties (may deal with zoning proposals and public safety) Sources of American Law Case Law The decisions rendered by the courts also form an important body of law, collectively referred to as case law Case law includes judicial interpretations of the types of law just mentioned constitutional provisions, statutes and administrative agency regulations It is up to the courts, particularly the Supreme Court, to decide what a constitutional provision or a statutory phrase means Sources of American Law In the Beginning Creation of the National Judiciary Because the Founders saw the judiciary as the weakest branch, they decided to place federal justices above the fray of politics by giving them life tenures and did not require them to run for office In the Beginning Creation of the National Judiciary The third branch of government began to take shape in 1789 with the passage of the Judiciary Act of 1789 This act created the basic three-tiered structure of the federal court system: The district courts that exist in every state The circuit courts which served as appellate courts beginning in 1891 The highest court in the land, the Supreme Court Federal Court System Step 1 DISTRICT COURTS 94 US Dist. Hear 342,000 cases/yr Trial by jury (only federal court with jury) Where the majority of federal cases are heard and decided with original jurisdiction Federal jurisdiction at the district level involves one of the following: The federal government is named as a plaintiff or defendant There is a federal question to be decided (treaty; federal statute; violation of federal criminal or civil law) There is a civil suit involving citizens from different states that is more than $75,000 Federal Court System Step 2 APPEAL (CIRCUIT) COURTS 13 Courts of Appeal Hear 61,000 cases/yr Panel of 3 judges, sometimes more No cases start here, review district court decisions Court of Appeals has two types of jurisdiction: Only have appellate jurisdiction. Will hear criminal and civil cases from district court Appeals from government administrative agencies (called the DC Circuit Court of Appeals-very important court) Courts of Appeals never hear new evidence and never have juries They try and correct errors of law and procedure that happened in the district courts The Court of Appeal decision is only binding in their area of jurisdiction For example, Hopwood v. Texas is only valid in the 5 th Circuit Federal Court System Step 3 US Supreme Court 2003 Argued 84 cases, decided 71 Hear appeals writ of certiorari Rule of 4 4 justices needed to agree to hear a case Chief Justice John Roberts The Supreme Courts decisions are binding on the whole nation and cannot be appealed or reversed except by the Court itself or by congressional statute or amendment The Courts decisions are called precedents - decisions that will serve as a guide for future cases In the words of Justice Charles Evans Hughes, (The Court) is under the Constitution, but the constitution is what we say it is Federal Court System The Marshall Court John Marshall is considered to be the most important chief justice to ever serve on the Supreme Court for two main reasons: 1. His length of service on the Court - gave the Court the stability and respect it needed 2. His influence - implementation of judicial review which strengthened the federal government (cases like Marbury; McCulloch; Fletcher v. Peck) JUDICIAL AUTHORITY Supreme Court has the power to declare a law unconstitutional with the principle of judicial review. NATIONALISM The National Government is over the states. PROPERTY RIGHTS Private property is sacred and contracts legal. JUDICIAL AUTHORITY Marbury vs. Madison NATIONALISM McCulloch vs. Maryland Gibbons vs. Ogden Cohens vs. Virginia PROPERTY RIGHTS Dartmouth College vs. Woodward Fletcher vs. Peck Shaping the Government Martin v. Hunters Lease (1816) The Supreme Court established the principle that it had jurisdiction over state courts in cases involving constitutional rights Marbury vs. Madison, 1803 Case: William Marbury, a Federalist and a midnight appointment of President Adams, did not receive his commission from Sec. of State, James Madison. Marbury asked the SC to issue a writ of mandamus forcing Madison to deliver his commission. Decision/Reason: Marshall dismissed suit, but in doing so struck down part of Judiciary Act of 1789 because SC had no authority to give Marbury his commission. declare laws of Congress unconstitutional.Significance: Established precedent of judicial review and the Supreme Court, not states had power to declare laws of Congress unconstitutional. Supreme Court Prior to this case, the Supreme Court had been the weakest of the three branches of government. nullify Earlier, the belief was the states could nullify a law (authority) 1803, the Supreme Court established its role as the final arbitrator (authority) of the meaning of the Constitution and its position of equality. judicial review By setting a precedent for judicial review or the Supreme Court can declare a law unconstitutional not the states or Congress. sent the message It also sent the message that the National Government is the last authority thus reinforcing Marshalls belief in a strong central government over the states. The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative acting contrary to the constitution is now law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable.If the former part of the alternative be true, then a legislative acting contrary to the constitution is now law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable. It is emphatically the province and duty of the judicial department to say what the law isIt is emphatically the province and duty of the judicial department to say what the law is If, then, the courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution and no such ordinary act, must govern the case to which they are both applicable.If, then, the courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution and no such ordinary act, must govern the case to which they are both applicable. Chief Justice John Marshall stated, Implementation John Marshall has rendered his decision; now let him enforce it! Andrew Jackson All deliberate speed Chief Earl Warren 10 years after Brown only 1% of Southern schools were desegregated Court must rely on branches, states, and officials to enforce its ruling Which Cases Reach the SC? The Court will look at two criterias in deciding whether or not to grant cert: 1. The case must come from the US Court of Appeals or State Supreme Court.(94%) (Might have been decided differently by different courts of appeals or a lower courts ruling disagrees with the Supreme Courts views) 2. The case must involve an important federal question. (Wider constitutional implications beyond the two parties involved) Supreme Court At Work Which Cases Reach the SC? The Court gets asked to hear cases from thousands of litigants every year - almost 8,000; of which the Court will only grant writs of certiorari (made more certain) (d) - A common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case Supreme Court At Work Which Cases Reach the SC? Sometimes the Court, in rare instances, will hear cases involving original jurisdiction (is actually in Article III): 1. Cases involving disputes between two or more states. As was the case of Bush v. Gore, The United States and a state 3. Foreign ambassadors and other diplomats 4. A state and a citizen of that state Supreme Court At Work Supreme Court Caseload Decisions and Opinions When an opinion is written (a decision), it often takes months and many drafts There are basically four types of opinions that can be delivered: Majority Opinion Concurring Opinion Dissenting Opinion Per Curiam Opinion Supreme Court At Work Decisions and Opinions Majority opinion (the official opinion of the court): is written by one member of the Court and reflects the majority of the justices views Concurring opinion: written by a justice who agrees with the majority decision but for a different reason (usually done for future precedents) Supreme Court At Work Decisions and Opinions Dissenting opinion: one that is written by one or more justices who disagree with the majority Per Curiam opinion: an unsigned opinion issued by the Court Supreme Court At Work Decisions and Opinions If the Chief Justice is in the majority, he/she will assign the job of writing the decision The Court must provide legal reasons for its positions They will be used as precedents for the lower courts If a case is overturned, the Court will remand the case back to the lower courts, sometimes for a new trial If the Chief Justice is in dissent, the most senior judge in the majority will assign the decision Supreme Court At Work How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and Amicus Briefs submitted Justices Conference Cases discussed Votes taken Opinion Assigned Opinions Announced Opinions Drafted and Circulated Oral Argument Public Influence on Justices Justices are NOT elected, appointed by Prez However, not entirely immune to public opinion 1.Appointed by Prez, agree with his ideologies, Prez was elected, chosen because of bias 2.Justices are aware of public opinion, and are aware that decisions that flagrantly go against public opinion will not be implemented Appointment President appoints judges for ALL federal court vacancies Senate must confirm all nominations by majority vote (Advice and consent) Senatorial courtesy tradition started by G.Washington to have senators select locally appointed judges in their states Nomination Criteria 4No constitutional qualifications 4Competence 4Ideology/Policy Preferences 4Rewards 4Pursuit of Political Support 4Religion 4Race and gender In the last 20 years, the average time taken to fill a federal judgeship was 464 days- compared to a week or two in Europe This has created a situation that has severely burdened the caseload of the other district courts Average federal case is now taking almost three years to complete Some federal justices who dislike a sitting president will wait until the President is gone, even if they are very old or sick, in order for the next president to have a chance at nominating a more liberal or conservative judge Appointment Federal Selection Process President Dept. of Justice Senators Senate Jud. Comm. ABA Senate Interest Groups Judicial Appointments Steps in nominating process: Investigation: Both the FBI and the ABA will analyze a presidents short list for the federal courts The FBI will do background checks to make sure the nominee has not been in legal trouble that could embarrass the president Since the Truman administration, the ABA has been asked to rate the nominees (Well Qualified- Qualified-Not Qualified) Appointment Judicial Appointments ABA Involvement discontinued during Bush II Administration After these preliminary investigations, the Senate Judiciary Committee will also do its own investigation and hearings Appointment Judicial Appointments Lobbying by Interest Groups: While the ABA is the only interest group that has been asked to formally rate the nominees, other interest groups in the last 20 years have made their presence known- generally lobbying AGAINST nominees Appointment Judicial Appointments The Senate Committee Hearings and Senate Vote: Although public hearings did not even occur until after 1955, since the 1980s, it has become standard for the Senate Judiciary Committee to get publicly involved in the questioning of potential Supreme Court nominees Appointment Judicial Appointments Even though the Senate can ask, the Court nominees usually dont answer their specific questions - claiming these issues might come up in the future in court After the Committee questions the nominee, they give a recommendation to the full Senate which then votes up or down to appoint the nominee for life to the Court Appointment Judicial Appointments Senate Vote: The Senates cooperation with the President on nominating Supreme Court judges has varied throughout history From the beginning of Jacksons term through Ulysses Grants presidency in 1877, the Senate was quite aggressive in not approving presidential nominees From 1894 to 1968, the Senate always went along with the Presidents nominations - the Senate only rejected three nominees Appointment Judicial Appointments From 1968 to 1991, there were two Senate rejections and almost a third in 1991 In 1987, two of Ronald Reagans nominees were rejected: Daniel Ginsburg for reports of him smoking pot in the 1970s, and Robert Bork for his views on original intent In 1991, Clarence Thomass nomination was almost lost at the last moment because of allegations of sexual harassment Appointment Who Is Appointed? Conservatism vs. Liberalism Justices are supposed to be above politics However, they do have personal ideologies EX. CJ Earl Warren ( ) and CJ Warren Burger ( ) were very liberal CJ William Rehnquist ( ) and CJ John Roberts (2005-?) swing conservative How the Justices Vote Legal Factors Judicial Philosophy Judicial Restraint - advocates minimalist roles for judges Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty. Precedent Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature. Extra-Legal Factors Behavioral Characteristics The personal experiences of the justices affect how they vote. Early poverty, job experience, friends, and relatives all affect how decisions are made. Ideology Ideological beliefs influence justices voting patterns. The Attitudinal Model A justices attitudes affect voting behavior. Public Opinion Justices watch TV, read newspapers, and go to the store like everyone else. They are not insulated from public opinion and are probably swayed by it some of the time. How the Justices Vote Judicial and Political Philosophy Liberal Leans to the left on public policy and would vote Democrat Conservative Leans to the right on public policy and would vote Republican Judicial Activism Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision Judicial Restraint Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statutes and previous cases when reaching their decisions. They follow the original intent of the framers. FreedomOrder Equality Freedom District Court Appointees Constraints on the Power of Federal Courts 1.Adversarial system decision must be made between 2 choices, and court cant bring up an issue 2.Justiciable dispute must judge actual situations, not hypothetical situations 3. Political question absence of law to rule on a case and the court calls on the Congress to create law Ex. gay marriage equal protection Checks on the SC President appoints all judges Congress must confirm appointed judges Congress may alter the structure of the court system (# of courts and justices) Congress has the power to impeach judges Congress may amend the Constitution if the Courts find a law unconstitutional Ex. Income tax originally found unconstitutionally so Congress added 16 th amendment Executive Checks Through the power of appointment, presidents have the ability of changing the ideological direction of the Court long after theyre out of office Also, presidents can refuse to obey the orders of the Court, something that both Lincoln and Jackson did in the 19 th century Legislative Checks Courts rulings will not mean anything if the legislatures do not appropriate the funds to enforce those decisions. (Prison conditions; gun checks; business or environmental regulation) The Courts rulings can also be overturned by constitutional amendments, as has been done in the 11 th, 14 th, 16 th, and 26 th amendments Finally, Congress can rewrite statues or pass new laws that can, in effect, overturn a Supreme Courts rulings (Civil Rights Acts of 1991) Public Opinion As stated before, the Court is a political institution and even though it hates to admit it, has generally followed the dictates of public opinion Judicial Traditions and Doctrines Supreme Court justices & federal judges typically exercise self-restraint in fashioning their decisions In part, this restraint stems from their knowledge that the other two branches of government and the public can exercise checks on the judiciary For example, the Supreme Court will not hear a meritless appeal or hypothetical case Also, when reviewing a case, the Supreme Court typically narrows its focus to just one issue or one aspect of an issue involved in a case to not make broad sweeping changes The doctrine of stare decisis acts as a restraint because it obligates the courts to follow established precedents when deciding cases Only rarely will the courts overturn a precedent Additionally, if a political question is involved, the Supreme Court will often exercise judicial restraint and refuse to rule on the matter A political question is one that the Supreme declares should be decided by the elected branches of government (ex: gays in the military) Judicial Traditions and Doctrines Judiciarys Important Today The federal judiciary is one of the most important institutions in Americans political life It would be hard to imagine what life in this country would be like if the judiciary branch was not independent, but was under the control of Congress Because the Supreme Court is the highest court in the nation, its decisions must be followed by all other US courts Thus, Supreme Court decisions can directly impact the lives of millions of Americans. Consider Brown v. Board of Education as just one example