Article 3 = Judicial Branch

• Section 1 = Supreme Court and Inferior Courts1. Hierarchy?

• One Supreme Court

• Lower Courts = Congress

• Section 2 = Judicial Powers1. Power to hear

following casesa) cases affecting

ambassadors, ministers or consuls

b) controversies between two or more states

c) between citizens of different states

d) between citizens of the same state if involves Constitution issue

• Section 2• Jurisdiction (power to

hear a case)• Original = trial court

• Cases affecting Ambassadors, other public Ministers & Consuls

• Cases where State a party• Appellate= only deciding

issues of law, right to review decisions of lower courts• All other cases are app jur

Trial of crimes will be done by Jury, and trial will take place in the state where the crime is committed, except in cases of Impeachment

Sec 2 Par 3

Sources of American Law• US Constitution & State Constitutions

• US Supreme law of land! Article ____? What happens if there is a conflict?

• Statutes (Congress – United States Codes)

• Administrative Regulations• Common Law - ex. Negligence &

Failure to warn• Case Law• Again, Courts have pwr to interpret

all of these sources because of …• JUDICIAL REVIEW!

Dual Court System Structure

Example – New Jersey

SCOTUS

United States Court of Appeals for the Third Circuit

United States District Court for the District of New Jersey

2 Basic Requirements to bring case to Court • 1) Standing 2) Jurisdiction

• Standing –• Stake in the matter. Must have suffered

an actual or threatened harm. Issue must be actual controversy – not hypothetical situation

• Example – case about right to burn American Flag. You couldn’t bring a case unless you 1) burned the American Flag and 2) were punished for it (fired from govt job, fined, jail etc)

• If court can dismiss case for standing, doesn’t have to be decided on the merits

How do you know which Court to use??

• Jurisdiction: Pwr of a court to hear your case

• Fed Courts can only hear certain cases (as set forth in Article III, Section 1)

• Federal Question Jurisdiction – must involved Federal Law or Constitution

• Diversity of Citizenship Jurisdiction (NJ vs. NC) – reasoning, home field advantage/ prejudice

Parties to a Lawsuit

• Trial Court• Plaintiff vs. Defendant (civil)• State vs. Defendant (criminal)

• Appellate Court• Appellant vs. Appellee

• Class Action lawsuits• Mrs. Smith’s pie shells

• Interest groups• Use the courts to try to change policies• Amicus Curiae briefs used to influence the

courts• “friend of the court” briefs used to raise

additional points of view and information not contained in briefs of formal parties

Types of Federal Courts

Specialized Courts = Limited Jurisdiction

• Specialized courts have limited jurisdiction – meaning they can only try cases involving certain types of claims

• Examples – Bankruptcy Court, Tax Court

United States District Courts = Trial Courts

• Trial courts are courts where trials are held and testimony is taken

• General jurisdiction – can hear civil and criminal cases, wide variety

• Jury’s purpose is to be finder of fact!! Told law by judge and lawyers

• Procedural Rules (at all levels)• Held in Contempt for violating

• Example -- Cigarette case, failure to warn post 1969

Wh a t h a p p e n s if y o u lo s e a t tria l c o u rt?

• You can appeal! Not automatic, everyone has right to appeal, not everyone granted

• Panel of 3 judges, NOT another trial• ONLY deciding whether trial court

committed error of law !• Cigarette example – did required

warning labels PREEMPT (supremacy clause, failure to warn claim) NOT deciding facts of whether Plaintiff was actually warned

• Will only challenge finding of fact if clearly contrary to evidence presented or NO evidence presented to support finding

US Appellate Court System

The Supreme Court• 8 Justices, 1 Chief Justice (not in

Const!)

• Article III – SC superior, Congress has pwr to create lower courts

• SC can exercise original jurisdiction (rare)

• Acts as trial court

• Most cases SC uses appellate jurisdiction

• Can hear cases from Fed Circuit Cts of Appeal OR

• State Supreme Courts • Only if the case involves a

Federal Question! (prob Constitution issue)

Which cases reach the Supreme Court?• Term – Oct-June/July

• Process for Writ of Cert--

• Party files petition for Writ Cert

• 90-95% of Writs denied! WHY?• If denied, doesn’t mean SC agrees, just

mean lower court decision stands as final, but denial not precedent

• (if issued, order asking lower court to send record of case)

• Factors?• Conflict in lower courts• Lower courts ruling conflicts with SC• Decision will affect many

• Rule or 4 – at least 4 justices have to approve to issue Writ

How are cases decided? • CT hears Oral “arguments”• Judges make decision, issue written

opinion (includes reasons, law etc)• If agree with lower court = affirmed• Disagree with lower court= reversed

(sometimes also remanded)• Applies to Ct of Appeals as well

• All 9 agree? Unanimous (rare)• Types of opinions?

• Majority opinions (writing to represent the decision of majority)

• Concurring opinions (agrees with majority decision but disagrees on some points)

• Dissenting opinions (disagrees with decision)

Role of the Chief Justice • Presides over SC• Enters courtroom first and casts first vote

when justices deliberate (vote doesn’t carry more weight)

• If votes with majority may choose to write opinion or assign to associate justice

• Presides over impeachment trials• Not most senior member• Head of Judicial Conference of US, which is

chief administrative body of US federal courts (indirectly oversees 5.5 billion budget of group)

Judicial Principles for deciding cases

• Precedent =• Deciding new cases based on prior

similar decisions.

• Stare Decisis = • Obligates judges to follow

precedents set previously by their own courts or by higher courts that have authority over them

• What does this mean?• Justices defer to prior SC

decisions• Justices apply precedent to

current cases and rule based on past decisions

Selection of Federal Judges

• Article III Section 2 = Pres appoint, with advice and consent of Senate

• ALL federal judges are appointed!• How many Senators must confirm?

• How long do Justices or Federal Judges serve?

• “Good behavior” = FOR LIFE (death or retirement)

• Why?• Founders wanted to make sure

justices free from political pressures or making decisions so would get re-elected or re-appointed

Nomination Process• Always works same way• Pres makes nomination, Senate either confirms or

rejects (can be big disputes)• First sent to Senate Judiciary Comm• SJC and subcommittee invites testimony and holds

hearings

• Senatorial Courtesy –• Constraint on Pres’ appt. pwrs• Allows Senator of Pres’s political party to veto judicial

appointment in his/her state by way of “blue slip”

• In past, Pres officially nominates judges for fed district court, often originate with senator of president’s party for state where opening

• Carter ended with establishing independent commission to oversee initial nomination process, Reagan re-established pres control

Nomination Process

• “Recess Appointments”• Hearings for lower court nominees

equally as bitter• WHY battleground?

• Many view the courts as agents of social change

• Serve for life • So ideology and political views of

potential justices should be matter or public concern and political debate

Characteristics of Supreme Court Nominees politically relevant to appointment process

• acceptability to Senate• Age• Competence/qualifications (ABA rating)• Gender• Ideology• Issue orientation (litmus test)• Judicial experience• Partisan identification• Race/ethnicity• Religion• Region• Reputation (prestigious education, ethics,

character) • Role (activist vs. restraint)

The Courts

• Judiciary forms part of our political process & courts make policy.

• How do Courts make policy?• SC has extraordinary pwr to make policy through

JUDICIAL REVIEW!• What is Judicial Review?

• Pwr of SC or any court to determine whether a law or other action is unconstitutional. Pwr to determine what the law means!

• Court gave itself pwr, NOT in Constitution!

• TJ’s Sec. of State James Madison is sued for not delivering the appointment of William Marbury

• What would happen if the Court issued the writ (decision), but the executive branch refused to comply?

• Madison & TJ win the battle• Marshall said it is not in his power to make

Madison (TJ) give the writ to Marbury

• Supreme Court wins the war• Marshall proclaims Judicial Review • “It is emphatically the province and duty of the

Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.”

• Supreme Court decides if laws are constitutional or not

• Why is this a big deal? • Theory of Judicial Review makes the Judicial Branch and equal branch of government!!

• Win for Checks & Balances• PWR of judicial review permits court to overrule or find unconstitutional all laws (ie go back to types of law – lower court decisions, statutes (acts of Congress), executive orders, state laws

• How can a SC decision be overruled? • Amendment the Constitution but remember SC job

is to interpret Constitution so couldn’t find an Amendment unconstitutional

• Congress can also try and pass diff law fixing the issue

Judicial Review

• How does judicial review empower the Court compared to other branches?

• It gives the Court the power to overturn laws passed by Congress or actions taken by the president and/or exec branch

• Brown v. BOE – segregation ruled unconstitutional

• Gives the court the pwr to limit actions taken by Congress or the president/executive branch

• Example – US v. Nixon – limited use of executive privilege when Nixon tried to use to protect disclosure of tapes that related to criminal investigation against him

Policymaking & the Courts• Judicial Review• Judicial Activism (liberalism) vs.

• Belief fed judiciary should take an active role by using its powers to check the activities of Congress, state legislatures and admin agencies

• 1950s/60s SC activist and liberal (Justice Warren)

• Justices are more likely to strike down laws and policies as unconstitutional

• Justices more likely to be influenced by future/societal ramifications/needs of the nation (gay marriage case example)

• Results in creating new precedent (ie Brown v. BOE)

Policymaking & the Courts

• Judicial Restraint (conservatism)• Belief courts should defer to

decisions made by legislatures and executive branches bc elected by the people, judiciary is not

• Should not thrwart implementation of laws or regs unless clearly unconstitutional

• Serve as a watchdog over other branches of govt. but not more!

Strict vs. Broad Construction• Strict Construction – follow “letter of

the law” when they attempt to interpret the Constitution or a particular statute

• Often associated with Conservative Views, but depending on issue Conservatives may support loose construction

• Loose/Broad Construction – may interpret laws loosely or broadly, try to determine the context and purpose of the law.

• Often linked with liberalism • Idea of a living constitution

The Rehnquist Court

• Rehnquist – CJ conservative, court became more conservative

• Scalia & Thomas also conservative• John Paul Stevens, David Souter,

Ruth Bader Ginsburg & Stephen Breyer – moderate to liberal views

• Sandra Day O’Connor & Kennedy – swing votes on controversial cases

• More conservative but decisions not always predictable

• Civil rights – generally conservative

The Roberts Court

• 2006, Roberts appointed by George W. Bush

• Tended to side with conservatives – upheld ban on partial birth abortions

• Held school policies that included race as determining factor in admission to certain schools was unconstitutional on ground violated EP clause

• Upheld Obama care under taxing pwrs

Checks on Courts

• Executive Checks – judicial implementation – enforcement of judicial decisions in a way that decisions are translated into policy. SC doesn’t have enforcement pwrs (remember Jackson). Other 2 branches must cooperate

• Appointment of judges (going to appoint judges who are aligned with Pres.’s policies).

• Appointment is best way President has of affecting direction of decisions by judiciary

Legislative Checks

• How can Courts’ ruling be overturned?• Amend the Constitution!!

• What else can Congress do?• Rewrite laws or enact new ones

• Confirmation of Justices/Judges• Impeachment of Justices• Limit funds necessary to carry out

court ruling • Congress has pwr to

increase/decrease size of Supreme Court

Public Opinion

• SC insulated fro public opinion yet rarely deviates too far from it.

• How is the Supreme Court insulated from public opinion?

• Judges APPOINTED not ELECTED• Serve for Life• Court controls which cases it hears, sets

its own agenda or “docket”

• But Public Opinion still serves as a check and Court can’t deviate too far from it. Public Opinion plays significant role in shaping public policy

• Appointment & Confirmation process – Justices not likely to be nominated or confirmed by Senate if too far from public opinion

Public Opinion

• Court has to rely on public officials to execute decisions

• School Prayer banned in 1962 – South still has, until someone brings suit, nothing Courts can do about it

• SC may lose stature if it decides a case in a way markedly divergent from public opinion. SC concerned about its reputation – for individual justices and for legitimacy as a whole

• Case can be overruled with Constitutional Amendment

• Public Opinion plays role in decisions • Example – Court said in opinion about 8th

amendment, what constitutes cruel and unusual punishment influenced by public opinion (banning execution of mentally retarded)

Interest Groups

• Interest groups play role by• Lobbying Judiciary Committee about

judicial nominee• Filing amicus curiae briefs• Having lawyers represent plaintiff (civil

rights case examples)• Filing class action lawsuits (on behalf of

similarly situated people with same interests and case)

Effects of checks on Judiciary?

• Usually will exercise restraint, issue narrow decision confined to facts before it

• Restraint mandated by judicial doctrines like stare decisis and following of precedent

• Rare to overturn precedent • Hypothetical & Political Questions also

act as restraint bc will decline to hear cases, or dismiss on standing basis

• Lowers courts can act as check by not following precedent for case with diff facts

Baker v. Carr Decision• Case was justiciable – defined difference

between what was justiciable and what was political

• Political ??– if raises an issue whose determination is clearly committed by the Constitution to another branch of the federal govt rather than the judiciary. Many issues concerning impeachment fall into this category.

• “Political Question” cases – sometimes used by Court as a means of avoiding making decision on some cases

Abortion Cases – Roe v. Wade

• Holding (Decision): Women’s right to privacy is a fundamental right under the 14th Amendment. Case invalidated Texas’ nearly complete ban on abortions. Pregnancy divided into 3 trimesters and diff rules for each. For first trimester, state could not ban or even closely regulate abortions. Decision to have an abortion was left to pregnant woman and doctors.

Planned Parenthood of Southeastern PA v. Casey

• Holding: upheld Roe’s statement that women’s right to privacy is fundamental right. Court in Casey said that states may restrict abortion so long as they do not place undue burdens on woman’s right to choose.

• Majority: O’Connor, Kennedy, Souter

• Concurring in Part: Rehnquist, White, Scalia, Thomas

• Dissent: Scalia, White, Thomas

Stenberg v. Carhart 2000

• Law banning partial birth abortions was unconstitutional

• Majority: O’Connor, Ginsberg, Stevens, Souter, Breyer

• Dissent: Thomas, Rehnquist, Scalia, Kennedy

Gonzales v. Carhart 2007

• SC upheld a complete ban on partial birth abortions

• Roberts replaces Rehnquist, Alito replaces O’Connor

• Majority: Kennedy, Roberts, Scalia, Thomas, Alito

• Dissent: Ginsberg, Stevens, Souter, Breyer

Supreme Court