The Judiciary
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Objectives
• Define judicial independence and discuss its
importance to the rule of law.
• Describe the structure of the U.S. court system and
identify the advantages and disadvantages of this type
of system.
• Examine how a case reaches and gets decided by the
Supreme Court.
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Objectives
• Understand the impact of judicial philosophy on how
Supreme Court justices decide cases and craft legal
opinions.
• Identify the range of limits placed on the Supreme
Court to prevent it from overreaching or abusing its
power.
• Compare and contrast the criteria used to select
judges at the state and federal levels.
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Why are we the
way we are?
Why does it
matter to you?
Why is judicial
independence
so important,
and what
elements are
essential to
creating and
maintaining that
independence?
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Core
Questions:
Judicial Independence
• Judicial independence is necessary to the
rule of law.
• U.S. Constitution’s Article III established the
Supreme Court and gave Congress the
authority to establish lower federal courts
and had provisions that established
independence of these courts.
• Judges have life tenure
• Compensation cannot be diminished during their
time in office; no pay cuts as punishment
• Not all countries have this judicial
independence.
• Example: China and Communist Party
dominance
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Judicial Review
• The power of the courts,
when confronted with a
legitimate case, to review
and strike down acts of
government that violate
the Constitution.
• Judicial review not
enumerated in the U.S.
Constitution.
• Hamilton, Federalist 78:
implied
• Not established until 1803
Court case, Marbury v.
Madison.
• Precedent for it existed
long before the
Constitution was written.
• 1610 Dr. Bonham’s Case,
Judge Edward Coke
• Debate as to its use during
Articles of Confederation
• Framers’ intent?
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• Context: arose out of the great tensions that
surrounded the elections of 1800.
• Federalists had lost poorly at both the national and
state level.
• Lame-duck Federalists passed the Judiciary Act of
1801, creating 16 new federal judgeships with
lifetime tenure as well as additional legislation that
created 42 justices of the peace with fixed terms in
office in the District of Columbia.
• William Marbury was one of the justices of the
peace.
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Marbury v. Madison
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Marbury v. Madison
• Responsibility for delivering the commissions to the new justices
belonged to the Secretary of State, John Marshall, but Marshall did
not have adequate time to do so. So he left it to his successor, James
Madison, to deliver.
• When Jefferson took office, he forbade Madison from delivering the
commissions.
• Marbury brought his suit to the Supreme Court under its original
jurisdiction. He asked the Court to issue a writ of mandamus (order to
perform an official duty) commanding delivery of his commission.
• Court: 6 Federalists; John Marshall was now Chief Justice
• BUT partisan power struggle: Democratic-Republican Congress
repealed the Judiciary Act of 1801, abolishing the federal judgeships.
• Cancelled the 1802 Court term.
• Madison sent no lawyer when Marbury v. Madison was being argued.
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Marbury v. Madison
• Marshall feared that any ruling would undermine the power and
legitimacy of the Supreme Court:
• What if they issued the writ of mandamus and Sec. Madison
ignored it?
• The weakness of the Court would be revealed.
• But what if the Court did not issue the writ of mandamus,
everyone would assume that it had simply caved to pressure.
• This would also weaken the Court.
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The Decision: Marbury v. Madison
• Marbury had a right to his commission.
• Law offered the remedy through the writ of mandamus.
• However, the legislative provision in the Judiciary Act of 1789 that
gave the Court this authority was unconstitutional because it
expanded the Court’s original jurisdiction in violation of Article III,
Sect. 2, para. 2.
• Marshall stated that the Court’s original jurisdiction could
only be expanded through Constitutional amendment.
• The Court, therefore, lacked the jurisdiction to issue the writ.
• The power of judicial review by the Supreme Court has
been debated. Generally, the debate today focuses on
when and how often the Court should use this power, not
whether they have it.
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Judicial Review around the World
• U.S. first country to embrace the use of judicial review.
• Followed by a few countries in the 19th century: Argentina,
Canada
• After WWII, Italy, Japan, and West Germany adopted judicial
review as part of their new constitutions
• Judicial review means different things in different countries.
• U.S.: constitutional review; other countries it may mean
allowing courts to subject administrative actions to judicial
review.
• In some countries, Italy, Germany, Spain, France- judicial
review also means the ability to compel legislative action.
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Overview of the U.S. Court System
• Dual Court system: federal courts and state courts. In reality, 51
different court systems in the United States.
• Cases originate in trial courts (originates here; establishes the facts of
the case; the record).
• Different trial courts have different jurisdictions
• Territorial jurisdiction
• Subject matter jurisdiction
• Appellate court: hears appeals from lower courts. Involve questions of
law rather than questions of fact. Makes sure there are no errors in
judgement by lower courts.
• Civil case: one party sues another party
• Plaintiff brings the the civil suit against another; one sued is the defendent
• Criminal case: brought by government against an individual or
business
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Overview of the U.S. Court System
• Adversarial system: defendants are presumed innocent
• United States
• Inquisitorial system: defendants are presumed guilty until proven
innocent; guilt is determined by the judge (rather than a jury) who
plays an active role in gathering evidence and questioning witnesses.
• Latin America and European countries
• Types of criminal actions
• Misdemeanors: minor criminal offenses such as trespassing, disorderly
conduct, minor traffic violations
• Felonies: serious criminal offenses such as murder, rape and armed
robbery.
• States responsible for creating most criminal laws; most criminal trials
take place in state court.
• Congress passes criminal laws as well: counterfeiting, tax evasion…
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The Federal Court System
• Under Articles of Confederation:
• only state courts existed at this time
• no federal courts
• result was judicial mayhem caused by the lack of a
central and neutral court.
• Constitutional Convention:
• agreement on need for federal court at the highest level,
but still debated over need for lower courts.
• states’ rights advocates not supportive of this
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The Federal Court System
• Judiciary Act of 1789
• Congress created system of lower federal courts
• Three levels of courts: district courts, courts of
appeals, and the Supreme Court
• All have general jurisdiction, or the broad power to hear a
wide range of cases. Also called Article III courts. Justices
have life tenure.
• Article I Courts: specialized courts created by Congress
• U.S. Tax Court is an example.
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• Insert figure 15.1
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The Federal Court System
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U.S. District Courts
• U.S. District Courts are trial courts.
• Most federal cases originate here; few originate at the
Supreme Court level under its original jurisdiction.
• Hear more cases than any other type of federal court.
• 94 District Courts, with 678 full-time judgeships.
• They hear criminal cases and civil cases IF certain conditions
are met. These conditions are:
• brought against the federal government.
• involve a claim based on the U.S. Constitution, federal law,
or a federal treaty.
• involve a citizen of one state suing a citizen of another state
and more than $75,000.
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U.S. District Courts
• One judge presides.
• Jury, testimony by witnesses, cross examinations, and
introduction of evidence.
• Each state has at least one district; states with heavier
caseloads have more than one.
• No district extends beyond the boundary of a single state.
• District court judges are nominated by the president and
confirmed by the Senate. The judges are residents of the state
the district falls within.
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U.S. Courts of Appeals
• Originally called circuit courts.
• Courts of appears fall within a geographic region that
is still known as a circuit, with each circuit made up of
several districts.
• 12 regional circuits; one for the District of Columbia,
and 11 numbered districts covering the remainder of
the country.
• U.S. Court of Appeals for the Federal Circuit:
nationwide jurisdiction over a variety of specialized
subject matters including international trade,
government contracts, trademarks and veterans’
benefits.
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U.S. Courts of Appeals
• Each of the numbered districts has jurisdiction over several
states, although the number of states varies from circuit to
circuit.
• Number of judges varies as well. Total of 167 full-time
judgeships.
• Jurisdiction: hears appeals from district courts that fall
within their circuit.
• As appellate courts they answer questions of LAW rather
than questions of FACT.
• Did the lower court make an error in its application of the
law?
• No new witnesses, etc.; only legal arguments (written briefs
and oral arguments).
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U.S. Courts of Appeals
• A majority of judges is needed to overturn a lower court
ruling, and the court of appeals issues a written opinion
explaining its ruling.
• One judge is responsible for writing that opinion.
• If all the judges agree, only one opinion is issued by the
court.
• If the court is divided, one judge is responsible for writing the
majority opinion.
• A judge who disagrees with the outcome described in the
majority opinion, explains why in a separate opinion – the
dissenting opinion.
• Concurring opinions are written by a judge who agrees
with the outcome, but not with its legal reasoning.
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U.S. Courts of Appeals
• Precedent
• A previous court decision that is used to determine
the outcome of subsequent cases involving a similar
legal question
• Stare decisis – let the law stand
• Doctrine of precedent evolves: Change is slow.
Precedent provides continuity and predictability, but
it can change.
• May be ignored.
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• Highest appellate court in the federal system.
• Size determined by Congress.
• Originally set by the Judiciary Act of 1789 at six members
• Court fluctuated in size until after the Civil War, reaching a
high of ten members in 1863.
• Set to 9 in 1869 and stayed there.
• Vast majority of cases heard by the Supreme Court are
appeals.
• Litigants can appeal a decision from the U.S. courts of appeals
to the Supreme Court.
• Can also move from a state’s highest appellate court so long as
the case involves a federal question.
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U.S. Supreme Court
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“Gatekeeping rules” limit the type
of cases the Court can hear.
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U.S. Supreme Court
• Standing
• Must be an injured party with standing to
bring the case
• Real, live “case or controversy”
• Case cannot be moot
• real conflict must still exist
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Figure 15.3 civil
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Figure 15.3 criminal
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State Court Systems
• Most cases are heard in the state court system,
and most of them end there as well.
• State court systems vary.
• Some complex: New Your
• Others simple: Minnesota.
• Generalizations we can make:
• State courts divided between trial courts and appellate
courts.
• Often trial courts divided into minor and major trial
courts.
• Courts of limited jurisdiction can only hear certain
specialized cases. Divorce court, for example.
• Courts of general jurisdiction have broad authority to
hear cases.
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State Court Systems
• Most states have an intermediate level of appellate
courts.
• All have an appellate court of last resort, which is
usually the state’s “supreme court”
• Although states are bound by the Supremacy Clause
to follow the U.S. Constitution, federal law and federal
treaties, it is possible for state constitutions and state
courts to extend right further than the federal
government.
• Massachusetts Supreme Court ruled in 2003 that it was
unconstitutional under the Massachusetts constitution to ban
same-sex marriage.
• First state to recognize same-sex marriage
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The Supreme Court in Action
• Supreme Court has two jurisdictions:
• Original: spelled out in Constitution; cannot be changed
by Congress; very small number heard
• Appellate: regulated by Congress; larger part of
Supreme Court caseload
• Since 1925 Supreme Court has had the power to
decide which appeals it will accept.
• 7,000 cases on average appealed, only about 100
reviewed in a year
• Often the Courts of Appeal have the final word in a
federal case.
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Getting to the Court:
Petitioning for a Writ of Certiorari
• Writ of certiorari
• An instruction to a lower court to send up the
record in a particular case.
• If one petitions for such a writ, it means the
litigant is asking the Court to review its case.
• Most petitions come from the U.S. Courts of
Appeals. Can come from special three-judge
U.S. District Court.
• It takes four (Rule of Four) of the nine justices to
grant cert.
• Role of law clerks
• Role of solicitor general: important player
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How the Court Decides Cases
• Once the Supreme Court grants cert, the case is added to
the Court’s docket.
• Each side files separate written briefs containing their
legal arguments.
• Amicus curiae briefs: “Friend of the court” briefs submitted
by third parties who are not named in a case but who hope to
influence the outcome of a particular case.
• Interest groups are able to influence the Court only in this
way.
• After reviewing the written briefs, the judges hear oral
arguments.
• Justices may ask questions during the oral arguments.
• After oral arguments the justices meet privately in their
Friday conference, where they vote on how the case
should be decided.
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How the Court Decides Cases
• If chief justice is in the majority, he chooses who will write
the opinion. If he is not, the longest-serving justice in the
majority chooses.
• Any of the justices may write a separate dissenting or
concurring opinion.
• Law clerks play an important role in drafting opinions.
• No opinion is considered final or binding until it is officially
announced.
• Posted online and published by government in volumes
called U.S. Reports.
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• Legal model
• A model of judicial decisions making that assumes judges
will decide cases according to the law (as opposed to the
attitudinal model).
• Attitudinal model
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The Role of Judicial Philosophy in
Decision Making
• A model of judicial decision making that assumes judges will
decide cases according to their ideological preferences (or
attitudes)
• Strategic model
• A model of judicial decision making that assumes judges are
rational actors who will strategically try to get as close to their
preferences as possible by building winning coalitions.
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• Suggestion for limiting judicial discretion:
• Minimize the ambiguity of constitutional language by
determining the original intent of those who framed it.
• Approach is problematic. Why?
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Jurisprudence of Original Intent
• May be impossible to discern.
• Evidence lacking.
• Constitution was result of compromise. Language at times was
purposely ambiguous.
• Whose intent counts?
• Even if intent is clear, is it relevant for us today?
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JUDICIAL RESTRAINT
JUDICIAL ACTIVISM
• Idea that the Supreme
Court should defer to the
actions of other branches of
government as long as they
have a rational basis.
• Idea that the Supreme
Court should strictly
scrutinize actions of other
branches of government
that restrict fundamental
rights, such as free speech.
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Judicial Restraint versus Judicial Activism
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Limits on the Supreme Court
• Constitutional Checks
• Constitutional amendments to overturn Court rulings
• Use of Congress’s Exceptions Clause power to take away a
Court’s jurisdiction to hear certain types of appeals
• Impeachment of judges
• Congress’s power to change the size of the Court (and thus
its composition)
• Noncompliance
• Depends on other institutions to enforce its rulings
• Implementation of those rulings is left to others.
• Main source of power is its legitimacy.
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How Judges Are Selected
• Supreme Court Justices
• President has power to nominate; but appointment comes
with the “Advice and Consent of the Senate.”
• No specific requirements
• Unofficial standards exist
• Vetting process – American Bar Association (1946)
• Presidents take into account:
1.
2.
3.
high professional standards
representational considerations
doctrinal considerations
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How Judges Are Selected
• Confirmation
• Senate requires a simple majority vote unless the
nomination faces a filibuster.
• Senate Judiciary holds hearings before the Senate
debates and votes.
• Hearings have become contentious.
• Reagan nominee: Robert Bork
• Role of divided government
• Lower Federal Court Judges
• Senatorial Courtesy vs. Presidential Prerogative
• Diversifying the Bench
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How Judges Are Selected
• Lower Federal Court Judges
• Senatorial Courtesy: an informal rule that senators will
refuse to confirm nominees to the lower federal courts who
do not have the support of the senators from the state where
the vacancy occurs
• Presidential Prerogative:
• Carter: reform of the system – commission system based on merit.
Reagan abolished the system but centralized control of the process in
the White House and used this process to screen for ideology.
• Diversifying the Bench
• Recent idea that federal courts should reflect the diversity of
society at large.
• Less important idea for Republican presidents; more so for
Democratic presidents.
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Judicial Selection in the States
• Manner in which state court judges are selected varies
not only from state to state, but also within states
according to the type of court. Some similarities.
• Basically five methods for choosing state court judges.
1.
2.
3.
4.
5.
Appointments by the governor
Appointments by the legislature
Partisan election
Nonpartisan election
The Merit Plan (Missouri Plan) – fixed term
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