THE JUDICIARY

Interpreting the law

3 categories of law

Criminal Law-involve cases between the government and a defendant who-punishments usually consist of jail time and/or a fine

Civil Law-disputes between individuals and/or the government-the losers in these cases pay fines, not sent to jail; most of these cases are decided on the basis of precedent

Public Law-laws when the civil or criminal case involves the power of the government or rights of citizens as defined under the Constitution

Organization of Federal Court System

7,500

250,000

50,000

Federal Judicial Circuits

The Supreme Court 9 Justices-8 Associates, 1 Chief

Chief is an administrative title, has no real authority, but does assign decision writing

3 functions of the Court Resolve conflicts between states Maintain national supremacy in the law Ensure uniformity in the interpretation of the

law Court has original and appellate jurisdiction

Article III is short, why? Framers believed the best way to prevent encroachment by the federal government was the elected branches, not the Court

Appointment process

President’s appoint justices, Senate approves Typically justices are

chosen who have federal court experience, share many of their political views and sometimes represent a region of the country

Once nominated, the Senate judiciary committee hold confirmation hearings and vote on approval The hearings have typically

fallen to partisan bickering Hearings are not a fair

evaluation of what the justice will be like on the bench

Supreme Court perks

Office with a fireplace Design their own robes (Rehnquist’s 3

gold stripes on each sleeve modeled after a Gilbert and Sullivan play)

$213,000/year salary Gym with a basketball court on top floor

“the highest court in the land” Can use building as a catering place

(Justice Kennedy held his daughters wedding reception there for 300+ guests)

The Current CourtConservativeChief John RobertsSamuel AlitoAntonin ScaliaClarence Thomas

LiberalElena KaganStephen BreyerSonia SotomayorRuth Bader Ginsburg

ModerateAnthony Kennedy

2010-11 Term decisions

9-0 38

48%

8-1 10

13%

7-2 12

15%

6-3 4 5%

5-4 16

20%

80

100.0

5-4 Voting Blocks

10 Roberts, Scalia, Kennedy, Thomas, Alito

4 Kennedy, Ginsburg, Breyer, Sotomayor, Kagan

US Supreme Court 2009-10 TermName Year

of birth

Law School Position prior to appointment

Appointed by

Year of service

John Roberts (Chief)

1955 Harvard US Court of Appeals

Bush II (R) 2005

Antonin Scalia

1938 Harvard US Court of Appeals

Reagan (R) 1986

Anthony Kennedy

1936 Harvard US Court of Appeals

Reagan 1988

Clarence Thomas

1948 Yale US Court of Appeals

Bush I 1991

Ruth Ginsburg

1933 Columbia US Court of Appeals

Clinton (D) 1993

Steven Breyer

1938 Harvard US Court of Appeals

Clinton 1994

Samuel Alito

1950 Yale US Court of Appeals

Bush I 2006

Sonia Sotomayor

1954 Yale US Court of Appeals

Obama (D) 2009

Elena Kagan 1960 Harvard US Solicitor General

Obama (D) 2010

Supreme Court Experience

Justices do not have to say why

Request from higher court to lower court to send a record up for review

Majority opinionConcurring opinionDissenting opinion

Each side typically receives 30 minutes to argue their case

Original intentions of Framers

Hamilton---Federalist No. 78 “…no influence over the sword or the purse”, but

the arbiter of the “will of the People.” Who would ensure the government did not overstep

its authority? Not Congress or President because by definition they were at the mercy of the people

The Courts authority, however, was to the Constitution, not the people, or Congress or President

“To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents…in every particular cast that comes before them.” But event Hamilton knew better

Judicial Review-source of court’s power

Marbury v. Madison (1803) Midnight judges by Adams in 1800, some

commissions not delivered by order of Jefferson Marbury files a writ of mandamus in Supreme

Court because Judiciary Act of 1789 gives them the authority to review such cases

John Marshall (an Adams’ midnight appointment) rules that Court’s duty is to decide “what the law is”, overturns the Judiciary Act of 1789 and establishes the power of judicial review

Today, the Court uses it more vigorously than Framers intended

Original intentions of Framers

Judicial activism-taking an active role in interpreting cases and “create” law in order to check others (loose interpretation) Constitution should change over time

Judicial restraint-defer decisions to legislative and executive branches because they have more expertise (strict interpretation) Constitution, i.e. the law, should stay same

Current conservatives of Court want to take Court backwards and undo the Liberal Court of 50’s-80’s

Maybe the Court does represent middle America, a majority of Americans may differ on abortion, but want it regulated, which the Court allows

Checks against the Court Executive Branch doesn’t have to enforce

decisions and can control appointment process Signing statements bullypulpit

Legislative Branch appropriates the money, can pass constitutional amendments or rewrite the law overturned

The public can always ignore the decision The Judicial Branch checks itself as well

because of their own traditions and doctrines

Development of the Court-Founding to Civil War

Court, under John Marshall’s guidance, is to decide the relationship between nation and state Key cases: Marbury v.

Madison, McCulloch v. Maryland

Marshall establishes many of the customs and traditions practiced by the Court today He emphasized unanimity

above all else and brought to Court “weight and dignity”

Chief Justice Taney continues traditions, but hurts Court’s reputation with Dred Scott decision

Development of the Court-Civil War to Depression

Now Court ask to decide the relationship between government and business Most of the Court was

dominated by justices who had been lawyers for corporations, and therefore struck down laws regulating businesses such as child labor laws, anti-trust laws, unions, minimum wages

The dominance of this Court ended with FDR and his court packing plan

Fuller Court

White Court

Development of the Court-Depression to the Present

During this time Court deciding the relationship between the government and the individual and selective incorporation

The Warren Court-Earl Warren was a 1953 Eisenhower appointee (one of his mistakes) who led the Court effectively and changed the direction of Court in the areas of racial segregation, criminal defendants rights’, and reapportionment A very activist Court whose

decisions favored minorities or “unpopular individuals” over government

continued

Because of liberalism of Warren Court, Nixon vows to change Court and appoints Warren Burger in 1969 to lead a “constitutional counterrevolution” Left most of Warren Court

intact and expanded the law in sexual discrimination cases and abortion

Not as successful as hoped, but Reagan and Bush able to appoint 5 more conservatives in 12 years which worked to erode the Warren Court doctrine

continued The Rehnquist Court has not created the revolution in

constitutional law, but has slowly chipped away at liberal decisions and no longer sees itself as the defender of individual liberties and civil rights

The Roberts Court has continued the tradition of Rehnquist, but has sought to create more unanimous decisions