The Judiciary © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 2 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 3 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? © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 4 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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? 5 • 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. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. Marbury v. Madison 6 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 7 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 8 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 9 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 10 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 11 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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… 12 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 13 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 14 • Insert figure 15.1 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. The Federal Court System 15 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 16 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 17 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 18 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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). 19 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 20 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 21 22 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. • 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. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. U.S. Supreme Court 23 “Gatekeeping rules” limit the type of cases the Court can hear. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 24 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. Figure 15.3 civil 25 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. Figure 15.3 criminal 26 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 27 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 28 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 29 30 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 31 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 32 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 33 • 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 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 34 35 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. • 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? © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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? 36 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. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. Judicial Restraint versus Judicial Activism 37 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 38 39 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 40 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 41 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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. 42 43 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 44 © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. © 2013 The McGraw-Hill Companies, Inc. All Rights Reserved. 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 45