The Judiciary and the Law
Concepts
• What circumstances are required for a case to
be brought before the Supreme Court?
• How do politics enter Supreme Court
decisions?
• Why can it be said that all judicial decisions
are activist?
Concepts
• Why can it be said that a president’s strongest
legacy is found in the judiciary?
• What control does Congress have over the
judiciary?
American Legal Principles
• A few underlying principles make up the
foundation of our legal system:
– Equal justice under the law
– Due process of law
– Adversarial system
– Presumption of innocence
American Legal Principles
• All who appear in court must be treated as
equals.
• The Founders were very concerned that the
new nation avoid the hierarchical legal system
that plagued many other nations and, as a
result, enshrined many amendments in the
Constitution that establish equal justice under
the law.
American Legal Principles
• Due process can be divided into two types:
– Substantive due process: law deals with the
question of whether laws are fair. Fairness is
determined by looking at the Constitution,
specifically the BOR and the 14th Amendment.
– Example: A law that made it illegal for girls to
drive would constitute a violation of substantive
due process.
American Legal Principles
• Second type of due process:
– Procedural due process: law is concerned with the
question of whether laws are fairly applied.
– Example: if suspect in certain crimes were held ten
years without a trail this would be a violation of due
process because the law guarantees everyone a
speedy trail
– Even if a nation has laws that are fair and just, if they
are not applied fairly they are meaningless.
American Legal Principles
• Adversarial system: this principle is based on
the premise that the best way to work out
questions of fact is to have two sides, or
adversaries, debate the burden of guilt or
liability in a situation.
• Some critics say that this system creates too
many conflicts, and recommend an increased
role in mediators.
American Legal Principles
• In both England the United States, the idea
that the accused are innocent until proven
guilty, the presumption of innocence, is one
of the bedrock principles of the legal system.
• Burden of proof is on the prosecutor in
criminal cases, if there is any doubt juries are
instructed to acquit.
American Legal Principles
• Blackstone ratio: “Better that ten guilty
persons escape than that one innocent suffer”
Types of Law
• In the United States most legal cases involve
either civil law or criminal law.
• Criminal Law: deals with serious crimes that
harm individuals or society.
• Civil Law: determines the results of disputes
over things like contracts, property, custody of
children to name a few.
Types of Law
• Important vocabulary:
– Grand jury: group of 24-48 jurors who decide only
one thing – if case should go to trial.
– Plea bargaining: agree to a less serious crime and
sentence.
– Petit juries: criminal trials, 12 people.
Types of Law
• Important Vocabulary:
– Settlement: In civil cases, the parties negotiate
how much they are willing to give up for the case
to end.
– Preponderance of evidence: in civil trials,
equivalent of proving that 51 percent of the
evidence points your way.
Structure and Jurisdiction
• The federal courts are responsible for
interpreting and settling disputes arising out
of federal law.
• State courts are responsible for interpreting
and settling disputes arising out of state law.
Structure and Jurisdiction
• Three level of federal courts:
• Federal District Courts, which have original
jurisdiction.
• Federal Circuit Courts of Appeals, which hears cases
from the District Courts.
• The Supreme Court which hears appeals of cases
dealing with constitutional questions from the circuit
courts.
Structure and Jurisdiction
• The Supreme Court can also hear cases between
states and has original jurisdiction in cases involving
foreign ministers.
• The Supreme Court does not have a jury. It is
considered a collegial court because it’s decisions are
made by nine justices.
• When the Court acts in appellate jurisdiction, it can
only decide issues of the law, never the facts of the
case.
Structure and Jurisdiction
• Federal District Courts decide both civil and
criminal cases in original jurisdiction.
• The trial court that determines guilt or
innocence is the court of original jurisdiction.
• There are 91 Federal District Courts.
Structure and Jurisdiction
• There are 13 Circuit Courts of Appeals, which
hear cases on appeal from the Federal District
Courts of from the State Supreme Courts.
• In these cases someone has to claim that a
federal constitutional right has been violated.
Structure and Jurisdiction
• Circuit Courts decide issues of law, never of
facts.
• Circuit courts have no juries, decisions are
made by panels of appointed judges.
• In most cases the Circuit Court of Appeals is
the court of last resort because the Supreme
Court hears so few cases.
The Politics of the Judiciary
• All judges in the federal judiciary are
appointed by the president for lifetime terms.
• Appointees must go through a confirmation
process in the Senate.
• To maintain judicial neutrality and integrity,
impeachment is the only method of removal.
The Politics of the Judiciary
• The appointment process has become very
political. Some presidents have required
potential appointees to fill out a judicial
questionnaire to determine their political and
judicial ideology.
• Nominees are almost always the same party
as the president.
The Politics of the Judiciary
• In nomination hearings before the Senate
Judiciary Committee, members of both parties
try to determine how potential judges would
rule in cases dealing with issues such as
abortion rights, affirmative action, and school
prayer.
The Politics of the Judiciary
• Senators in a state where an appointee will sit
have traditionally exercised senatorial
courtesy, they submit a list of acceptable
names of nominees to the president.
• Liberals and conservatives often argue over a
nominee’s judicial philosophy or level of
judicial activism.
The Politics of the Judiciary
• The central point of the argument is whether
a nominee is more or less inclined to secondguess a legislative enactment.
• As conservatives see it, the courts are the
least democratic branch of government
(because judges are appointed, not elected),
and when they overturn an act of a legislature
they are overruling the will of the people.
The Politics of the Judiciary
• Judges who are reluctant to overturn acts of
legislation are said to practice judicial
restraint.
• A judge who has no problem overturning a
legislative action is considered a judicial
activist.
Process of Reaching the Supreme
Court
• Not stated in the Constitution.
• Supreme Court will not grant an appeal until
all opportunities have been exhausted in the
lower appellate courts.
• In a vast majority of cases the Supreme Court
will refuse to hear a case because it agrees
with the lower courts decision.
Process of Reaching the Supreme
Court
• If four justices agree to review a case, the
court issues a writ of certiorari, a legal
document used to request the lower courts
transcript of a case.
• The Supreme Court will rule only in cases that
are real and adverse, which means the case
must involve an actual legal dispute. Such
cases are said to be justiciable.
Process of Reaching the Supreme
Court
• Disputes over political issues cannot be
decided by the courts.
• The Court will not rule on hypothetical cases.
Process of Reaching the Supreme
Court
• The Court also places limits on who may bring
cases before it. Simply disliking or disagreeing
with a law is not sufficient to bring a case.
• The petitioner (the person who brings the
case) must have some vested interest in the
outcome. Such petitioners are said to have
standing.
Judicial Review
• The Constitution does not specifically grant
the Supreme Court the right to judge the
constitutionality of laws.
• That power was established by the case of
Marbury v. Madison (1803). This power is
called judicial review, was established by John
Marshall, the fourth Chief Justice of the
Supreme Court.
Judicial Review
• Marshall was a Federalist who worked to
increase the power of the federal government
over the states.
• Some other important court cases in
relationship of the federal government and
the states:
Judicial Review
• Fletcher v. Peck (1810): The first case in
which the Court overturned a state law on
constitutional grounds. Fletcher established
the Court’s right to apply judicial review to
state laws. Previously, judicial review had only
been applied to federal law.
Judicial Review
• McCulloch v. Maryland (1819): The Court ruled that
states did not have the power to tax the national
bank (and by extension the federal government).
This decision reinforced the supremacy clause of the
Constitution, which states that the Constitution “and
all laws of the United States which shall be made in
pursuance thereof… shall be the supreme law of the
land; and judges in every state shall be bound
thereby, anything in the Constitution or laws of any
state to the contrary notwithstanding.
Judicial Review
• Gibbons v. Ogden (1824): The Court ruled
that the state of New York could not grant a
steamship company a monopoly to operate on
an interstate waterway, even though the
waterway ran through New York. The ruling
increased federal power over interstate
commerce by implying that anything
concerning interstate trade could potentially
be regulated by the federal government.
How the Court Hears Cases
• Both sides of a case submit summaries of their
arguments and legal foundations for them.
These are called briefs.
• At the same time interest groups affiliated
with both sides of the case submit their own
briefs to the Supreme Court.
How the Court Hears Cases
• These amicus curiae (“friend of the court”)
briefs constitute an effort to sway the justices
to one side or the other and can be quite
influential in determining the outcome of the
case.
How the Court Hears Cases
–Oral arguments may be made in a
case.
–Justices discuss the case.
–One justice will write the majority
opinion (statement of legal
reasoning behind a judicial
decision) on the case.
How the Court Hears Cases
– Dissenting opinions are written by justices who
oppose the majority.
– Concurring opinions are written in support of the
majority but stress a different legal basis.
– Stare decisis: to let the previous decision stand
unchanged.
– Precedents: How similar past cases were decided.
– Original Intent: The idea that the Constitution
should be viewed according to the original intent
of the framers.