The Judiciary

Ch. 10, American Government, O’Connor, et. al.

Supreme Court links• http://www.cbsnews.com/8301-5048

03_162-57563699-10391709/how-affirmative-action-divides-two-justices/

• http://www.npr.org/blogs/thetwo-way/2012/12/19/167614048/family-robert-bork-who-was-turned-down-for-supreme-court-dies

• http://supremecourt.c-span.org/CurrentCourt.aspx

• http://supremecourt.c-span.org/Video/JusticeOwnWords/SC_Jus_GrantingCertiorari.aspx

• http://www.cbsnews.com/video/watch/?id=7096996n

Brutus’s critique of the Judiciary

• No. XI:– judges cannot be removed for bad decisions– they can interpret Constitution according to “law

and equity” (“spirit”)• No. XII:– courts will expand jurisdiction into state concerns– courts will control the legislature

• No. XV:– the courts are too independent and should be

made subordinate to the legislature (as in Parliamentary system of GB)

Hamilton’s defense of Judiciary

• It is the least dangerous branch (No. 78)• Judiciary should NOT be subordinate to

legislature, because judicial review is necessary (No. 78 & 81)

• Defense of “judicial review”:– Someone must decide in cases of “clashing laws”– Judges may not substitute “will” for “judgment”– No power to interpret Constitution “in equity”

(according to “spirit”)• Judiciary is NOT the supreme branch: the

Constitution embodies the reason of the people and is therefore supreme over ALL (No. 78)

Federalist No. 78• Publius (Alexander Hamilton)• Judicial power implied judicial review• The independence of judges is an essential

safeguard against effects of society• (Judicial Branch) has “neither FORCE NOR

WILL, but merely judgment…”• “right of the courts to pronounce legislative

acts void…”• “No legislative act, therefore, contrary to

the constitution, can be valid.” • Federalist No. 78

The Marshall Court: Marbury v. Madison (1803) and Judicial Review

Federalist No. 78 Discontinued

seriatim Marbury v.

Madison– Necessary and proper

clause– National supremacy

McCulloch v. Maryland– National supremacy– Broad interpretation

of the commerce clause

LO 10.1

To Learning Objectives

The tradition of seriatim, to give opinions of the court individually, came from what?

A.The Roman system of lawB.The British system of lawC.The Greek system of lawD.The colonial system of lawE.The French system of law

LO 10.1

To Learning Objectives

The tradition of seriatim, to give opinions of the court individually, came from what?

A.The Roman system of lawB.The British system of lawC.The Greek system of lawD.The colonial system of lawE.The French system of law

LO 10.1

To Learning Objectives

Roots of the Federal JudiciaryLO 10.1:

Trace the development of the federal judiciary and the origins of judicial review.• Framers believed judiciary posed

little threat of tyranny• Judiciary Act of 1789

– Established three-tiered federal court system• District (trials)• Appeals• Supreme

– Courts originally had very little power

To Learning Objectives

Marbury v. Madison (1803)• Judicial review, executive privilege,

federalism, jurisdiction • 1st time S.C. declared a

Congressional act -- Judiciary Act of 1789 -- unconstitutional

• Chief Justice John Marshall wrote decision

• Legitimized the role of the Supreme Court

• Marbury v. Madison (1803) 10

National Supremacy and Slavery 1789-1861

• Marbury v Madison (1803) • McCulloch v. Maryland (1819)• Gibbons v. Ogden (1824)- interstate

commerce clause strengthened (under authority of federal government)

• Dred Scott v. Sanford (1857)- Slaves are not citizens of the U.S

Government & the Economy 1865-1936

• Dominant issue: Could the federal government regulate the economy?

• Private property protected by the 5th/14th amendments.

• Narrow interpretation of 14th and 15th amendments in relation to blacks allowing segregation: (Plessy v. Ferguson (1896) “separate but equal”; excluded blacks from voting in many states.

Government & political liberty (1936-present)

• Court establishes tradition of deferring to the legislature in economic regulation cases.

• Courts shift attention to personal liberties as is active in defining rights.

• Warren Court- liberal protection of rights and liberties against government trespass.

• 1992- Court rules that states have the right to resist some federal action.

Table 10.4: Who are the justices of the Supreme Court in 2013?

To Learning Objectives

Figure 10.1: How is the American judicial system structured?

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Federal Courts StructureCongress created 2 types of lower courts to handle cases that the Supreme Court does not need to decide.1) “Constitutional Courts” exercise judicial powers

found in Article III• Court of Appeals, U.S. District courts,

Supreme Court• Judges serve for life, with good behavior• Salaries not reduced while in office• Appointed by President, confirmed by Senate

2) “Legislative courts” – derived from Article I• no life tenure• Court of Appeals to Armed Forces• Territorial Courts (i.e. Guam, or Virgin Islands)

U.S. District and Appellate Courts

Figure 10.2: What are the boundaries of federal district courts and courts of

appeals?

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Constitutional Courts• District Courts (94) • At least 1 in each state• Trial courts of the federal system• Single judge and jury present.

U.S. Court of Appeals (13)• appellate courts or “circuits” (11 + DC Circuit

+ Federal Circuit)• located regionally• panel of 3 judges

Cases litigated beyond the federal district courts usually go to one of the regional appeals courts known as the U.S. Courts of Appeals.There are 13 appeals courts; 12 cover cases from geographic areas known as circuits.Judges on these courts sit in panels of 3; they aim at correcting errors in the lower courts and making policy through the opinions they write.

a. Opinion writing gives judges influence beyond the immediate case.

(1) A precedent is a decision in one case that provides a reason for deciding a similar case in the same way.

(2) Stare decisis, which means “Let the decision stand,” is decision making according to a precedent rather than some other rule.

• District courts• Cases where federal government is a party• Cases involving constitutional questions• Cases between states or citizens of different states

• Courts of appeals• Three-judge panel• Look at errors of procedures of law• Appellants must submit a brief to have case heard• Stare decisis

• Supreme Court• Nine-judge panel• Appellate and original jurisdiction• Ensures uniform interpretation of law• Maintains national supremacy

The Federal Court SystemLO 10.3: Explain the organization of the federal court system.

To Learning Objectives

Jurisdiction of Courts• Dual court system- state courts and

federal courts have their own jurisdiction.• Federal cases listed in Article III and the

11th Amendment.• Federal question cases: involving US

Constitution, federal law and treaties.• Also cases involving different states or

citizens of different states.

The Jurisdiction of the Federal Courts

Federal or State Court?• Some cases can be tried at either

level.• Example: if both federal and state

laws have been broken. (dual sovereignty)

• State cases can sometimes be appealed to the Supreme Court….a federal question must be raised.

Route to the Supreme Court• Most federal cases begin in district court,

then are appealed to circuit court.• Supreme Court picks which cases it wants

to hear. Rule of Four- 4 justices agree to hear case, then issue a writ of certiorari

• Usually pick cases that deal with:1) significant federal or constitutional

question2) conflicting decisions by circuit courts3) constitutional interpretation by a high

state court, about state or federal law.

Table 10.1: What kinds of cases does the U.S. Supreme Court hear?

To Learning Objectives

Going Supreme!!• About 8000 requests for certiorari are

submitted, the Supreme Court usually limits its DOCKET to no more than 100 cases in a year.

• The Supreme Court sometimes hears cases on original jurisdiction:

1) when a foreign ambassador is named in a case

2) when a state is named in a case3) when maritime/admiralty law is involved.

docket• Supreme Court’s agenda of cases to be

heard • +/- 100 granted writ of certiorari “to be

informed”• 2-3 are original jurisdiction• Rule of Four• stare decisis• Appellate jurisdiction• Must address a Constitutional or federal

question

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Figure 10.3: How many cases does the Supreme Court handle?

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Figure 10.4: How does a case get to the Supreme Court?

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How Does a Case Survive the Process?

• Federal government• Solicitor general• Amicus curiae

• Conflict among the courts of appeals• Necessary to resolve dispute

• Interest group participation• Amicus curiae

• NAACP• Washington Legal Foundation

• Brown v. Board of Education (1954)• Planned Parenthood v. Casey (1992)

LO 10.5

To Learning Objectives

• Deciding to Hear a Case• Supreme Court hears

approximately one percent of cases filed

• Supreme Court issues writ of certiorari to hear case

• Rule of Four• At least four Justices must

sign on to a writ of certiorari• Role of clerks• Initial filtration process

The Supreme Court TodayLO 10.5: Evaluate the Supreme Court’s process for accepting, hearing,and deciding cases.

To Learning Objectives

Supreme Court in Action• Each side has an 1/2 hour for oral

arguments, including interruptions for questions by justices.

• Briefs are submitted by each side and friends of the court - amicus curiae briefs.

• Solicitor general- 10th justice

Conference Procedures• Judges meet in chambers.• Chief Justice speaks first, votes last• Selection of opinion writer• Types of opinions:

1) per curiam- brief and unsigned2) majority opinion- official decision3) concurring opinion- agree, but for

different reason4) Dissenting opinion- minority

opinion.

How to interpret the Constitution?

There is much debate on how the Constitution should be interpreted:• Strict constructionists - judges are bound

by the wording of Constitution (narrowly interpret) as it was intended by the Framers.

• judicial activism - judges should look to the underlying principles of the Constitution (broadly interpret); judges should use their power broadly to further justice.

• Judicial restraint – allow decisions of lower courts and other levels of gov’t to stand, even when they offend the judge’s own principles.

• Policy making– Judicial decisions make

policy• Judicial review• Citizens United (2010)

– Overruling itself• Plessy v. Ferguson (1896)• Brown v. Board of

Education (1954)• Implementation

– Not always easy• Brown v. Board of

Education (1954)• Reynolds v. Sims (1964)

Toward Reform: Power, Policy Making, and the CourtLO 10.7: Assess the role of the Supreme Court in the policy-making process.

To Learning Objectives

Judicial policymaking occurs…

(1)When judges interpret prior judicial decisions. This is known as common law or judge-made law.

(2)When judges interpret legislation. This is known as statutory construction.

(3)When judges interpret the Constitution. This is known as judicial review.

(4)Because the circuit courts are not bound to consult with each other about application of the law, there may be variance in their interpretations. Such conflicts are corrected by review at the Supreme Court level.

A strict constructionist believes in a(n) ____________ constitution.

A.livingB.inherently evilC.inherently goodD.ChristianE.dead

LO 10.6

To Learning Objectives

A strict constructionist believes in a(n) ____________ constitution.

A.livingB.inherently evilC.inherently goodD.ChristianE.dead

LO 10.6

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In 1962, Justice William Brennan Jr. made a distinction between a political question and a

_______________.

A.political issueB.religious questionC.social questionD.loyalty issueE.religious issue

LO 10.7

To Learning Objectives

In 1962, Justice William Brennan Jr. made a distinction between a political question and a

_______________.

A.political issueB.religious questionC.social questionD.loyalty issueE.religious issue

LO 10.7

To Learning Objectives

• Confirmation Process– Investigation• American Bar Association

– Lobbying by interest groups• Bork• Christian organizations

– Senate committee hearings and vote• More intensive since 1980s

• Appointments to Supreme Court– Importance– Unpredictability

LO 10.4

How Federal Court Judges Are Selected

To Learning Objectives

Selecting Judges• All constitutional court judges are

nominated by the president and confirmed by the Senate, on recommendation from the Senate Judiciary Committee.

• Senatorial Courtesy usually employed for district judges.

The Litmus Test• Presidents seek judges who share an

ideology similar to their own.• Greatest impact on court decisions is

ideology.• Litmus test during Reagan/Bush

administrations was pro-life.

Table 10.7: What do Supreme Court clerks do?

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Checks on Judicial powerCongress:1) confirmation and impeachment2) change the number of judges3) changing jurisdiction of courts4) revising legislation5) amending the Constitution

Stare decisis literally means what?

A.The right of the court to decideB.The wise will decideC.Staring at decisionsD.The stars make decisionsE.Let the decision stand

LO 10.3

To Learning Objectives

Stare decisis literally means what?

A.The right of the court to decideB.The wise will decideC.Staring at decisionsD.The stars make decisionsE.Let the decision stand

LO 10.3

To Learning Objectives