Unit 11
THE JUDICIARY
“The least dangerous branch…”
I. Original Intent of Framers
A. Federalist Paper #78
examined the need for ________
judiciary.
1. How would members of the
judiciary get their jobs?
2. What would be the term of
their office?
3. Why was it decided to be
this way?
- Preserve judicial neutrality
- Allow justices the capability
to use and make precedent over
time.
Original Intent:
B. The Judiciary’s power
would be limited to
cases involving:
- the interests of the
nation;
- the interests of the
states when in conflict
with each other;
- state conflict with
the national gov’t.
Original Intent:
C. Interpretation of the laws
(judicial review) has been
the judiciary’s main function
since 1803 (Marbury v.
Madison).
- Legislative acts are void
if contrary to the Constitution
and once a law is voided.
- The only recourse is a
constitutional amendment.
Original Intent:
D. The Supreme Court was to be the voice of the
people and supreme over all state courts and
state laws (when in conflict). Nullification not
specified under the U.S.C.
II. Politics of the Judiciary
A. Judicial appointments
by the President reflect
his desire to shape an
ideological agenda.
B. Over 90% of judicial
appointees have been
of the same party as
the President..
Robert Bork
Clarence Thomas
Sonya
Sotomayor
Politics of the Judiciary (cont’d)
C. Judicial appointments
are influenced by:
- American Bar Assoc’n
- Interest groups (e.g.
NRA, NAACP, NOW)
- Attorney General
- Senate Judiciary
Committee members
Senate Confirmation Politics
Advice & Consent role:
• Senate Judiciary Committee holds hearings where
appointees are questioned. Questioning is very
partisan and ideological.
• Committee makes confirmation recommendation to
full Senate.
• 2/3 of Senate confirm the nomination.
LITMUS TEST
• A test of a judicial
nominee’s ideological
purity by the Senate
on matters of key
social policies.
• Hard to obtain a
perfectly “neutral”
candidate acceptable
to both parties.
JUDICIAL APPOINTMENTS
(Through 2009)
PRESIDENT
WOMEN
AFRICAN
AMERICAN
HISPANIC
ALL
JUDGES
CARTER
40
37
16
258
REAGAN
28
7
15
384
BUSH SR.
36
12
8
185
CLINTON
77
51
18
378
BUSH JR.
73
26
17
324
OBAMA
10
2
1
21
SENATORIAL COURTESY
• The president allows the
senior senator of the
president’s party from the
nominee’s state to
concur or reject a judicial
nomination in advance
(called a “blue slip”).
• Senatorial courtesy
applies to federal
district court
nominations only!
D. Judicial Philosophy
1. Judicial Activism
Judges overturn a law or an executive
action due to personal ideology. Often
called “legislating from the bench.”
2. Judicial Restraint
Judges are reluctant to overturn laws or
executive actions by strictly interpreting the
Constitution and using precedent.
III. Precedent and Justiciability
A. Supreme Court uses
precedent (stare
decisis), but is not
bound by it since it
sees itself as the
ultimate interpreter of
the law.
B. Justiciability:
Whether a case has
any merit to be heard.
1. Courts hear only
justiciable cases
that involve actual
legal disputes that
are real and adverse,
not hypothetical
ones.
2. If a plaintiff wants
to have his case
heard he must have
“standing” (show
that some harm was
done to them).
3. Political or religious belief
issues are not justiciable!
- A person cannot sue
Congress just because he
doesn’t like a law.
(e.g. his taxes are too high)
- The Court will not decide
which religion is correct in
interpretation of religious
beliefs.
4. For the gov’t to be sued it
must have violated the
Constitution somehow.
(Ex: violated a person’s
rights; favored one race
over another; exceeded its
powers)
5. Class action suitsJusticiable because
many people may have
suffered harm from the
results of the same action.
(e.g. segregating schools;
making a bad drug)
6. Amicus curiae briefs-
(“Friend of Court” briefs)
are written legal arguments
made by any interested
party designed to try and
sway a court’s decision or
add to a case’s justiciability.
IV. Types of Federal Courts
A. Supreme Court is the highest court in the land, is
the only court specified in the Constitution, and is
the court of LAST RESORT. It’s decisions are final
and not subject to appeal.
Federal Courts (cont’d)
B. All other federal courts were created by
Congress (through their expressed powers) as
“lesser courts” to the Supreme Court, such as…
Federal Courts (cont’d)
Constitutional Courts
Designed to enforce specific judicial powers
under Article III of the Constitution. Their judges
are appointed for life. (e.g. District Courts,
Circuit Courts of Appeal)
Federal Courts (cont’d)
Legislative courts
- Special courts created by Congress to
enforce laws created under its Article I
powers. Its judges have term limits.
(e.g. Tax Court, Territorial Courts,
Bankruptcy Court, Maritime Courts)
- Military law is written by Congress so
military courts are also Article I courts.
C. Federal District Courts
1. 94 district courts that are spread among all the
states and serve a small regional area.
2. Hear criminal and civil trials involving federal
law; decide guilt or innocence based on facts;
issue verdicts and sentences.
3. Exclusive jurisdiction ONLY!
D. Federal
Circuit Courts
of Appeals
1. 12 larger regional-based courts that have only
appellate jursidiction.
2. Decide issues of law, no trials held.
3. Decisions made by a panel of 3 judges; a majority
vote decides the appeal.
4. Their decisions may be further appealed to the
Supreme Court which has the option to hear or
deny the appeal.
V. TWO JUDICIAL SYSTEMS
A. The United States has
two levels of courts,
state & federal, This is
called the dual court
system.
- Each level operates
independently from the
other having jurisdiction
over its own laws.
State courts:
• State judicial powers
are protected by the
10th Amendment, but
is subject to federal
supremacy which can
override state laws or
court decisions when
in conflict with the
U.S. Constitution.
B. Jurisdiction
Definition:
The authority of a
court to interpret and
apply the law by
hearing and ruling on
cases.
Four Jurisdiction Types
1. Original: Courts hear
cases for the first time and
render a verdict (criminal
trial) or a decision (lawsuit).
2. Appellate: Courts hear
only appeals brought by
people/orgs because previous
lower court decisions were
unfavorable to them.
Jurisdiction Types (cont’d)
3. Concurrent: Federal
gov’t and states have
simultaneous jurisdiction in
a case. This is called dual
sovereignty. Federal
supremacy can be applied
to claim jurisdiction, but can
be deferred to the states.
(e.g. bank robbery; 2003
sniper case)
Jurisdiction Types (cont’d)
4. Exclusive: Federal
gov’t can prosecute
cases that it alone
has power over.
(e.g. terrorism; stock
market fraud; mail
theft)
C. Federal Jury System
Two types of juries:
1. Grand juries
- Investigative bodies of
16-23 people who decide
whether there is enough
evidence to conduct a
trial.
- Closed to the public.
- Neither the suspect
nor a judge is present.
- Issue indictments
(formal charges of a
crime)
Federal Jury System (cont’d)
2. Petit juries
- Juries of 6-12 selected
citizens.
- Decide criminal and civil
cases.
- Mostly open to the public
- Secret verdict deliberation
VI. Parties To Lawsuits
A. All parties involved in a
lawsuit are referred to as
litigants.
1. The party that brings
the complaint is called the
plaintiff.
2. The party who must
answer to the complaint
is the defendant.
B. Parties to Appeals
Appellant: The party (1st name on the case)
that appeals its loss from a lower court’s original
decision.
Appellee: The party (2nd name on the case)
that defends against the appellant’s position.
EXAMPLES: Marbury v. Madison
Johnson v. U.S. Steel Corp.
Clinton v. City of New York
United States v. Virginia
VII. Supreme Court Appeals
A. All lower court appeals must first be
exhausted.
B. The appellant must apply to the Court
for a writ of certiorari (aka: granting
“cert”).
- This is a demand for the last
appeals court to send up the records
of the case in question for review by
the Supremes.
Rule of Four
OK, who
wants to
grant cert
with me?
Me
too!
Hell,
no!
Me!
Pass!
Where am I?
- At least four justices
must agree to grant
“cert” to a case in
order for it to be
heard. This is called
the Rule of Four.
- If “cert” is not granted
then the decision of
the last court stands.
C. The Written Brief
Parties to the case are notified and must
file separate written briefs that state the
constitutional basis of their argument.
If the federal government is a party then it
is the Solicitor General who represents it.
- The justices read these briefs prior to
hearing the case in the court.
- “Amicus curiae” briefs are also sent.
D. The Oral Argument
On the court
date, attorneys
for each side
state their case
in an oral
argument
before the
Court. Each is
limited to 30
minutes.
E. The Case Conference
1. The justices will meet
in private days later to
discuss the merits of the
case and vote on a
decision. Each justice
has one vote.
2. If a tie vote occurs then
the decision of the last
court stands.
F. The Opinions
One justice will be assigned to write the
Court’s decision called an opinion.
1. Majority opinion: The winning side of
the argument expresses the reasons for
its ruling (also called the “opinion of the
Court”).
- Split decision: A vote that is 5-4
- Unanimous decision: A vote that is 9-0
Opinions (cont’d)
2. Dissenting opinion: The losing
side’s reasons for disagreeing with
the majority ruling.
3. Concurring opinion: An opinion
agreeing with the majority, but for
different reasons than what is
written in the majority opinion.
G. Judicial Implementation
• Court decisions have legal authority, but courts
have no means to enforce them and must rely
on the other two branches to do so.
• Implementation can be difficult if a decision
requires the cooperation of numerous
bureaucracies or depends upon states to lead.
Example: Brown v. Board of Education
• The Court can order its own “remedy” to effect
implementation (judicial activism).
END OF UNIT 11 – JUDICIARY BRANCH
“We are under a Constitution, but the
Constitution is what the judges say it is.
- Charles Evans Hughes
Former Chief Justice, U.S. Supreme Court