Unit 8: The Judicial Branch
I. The Constitution and the Creation of the
Federal Judiciary
A. Framers devoted very little time to the
creation of the judiciary
1. Did not see it as a threat
B. Framers left it to Congress to design the
federal judiciary
C. Article III
1. Section 1 gave Congress authority to
establish other courts as they saw fit
2. Section 2 specifies the jurisdiction of the
court
a. Set by Congress (ex parte
McCardle)
3. Section 3 defines treason, and mandates
at least 2 witnesses appear
3.
II. THE POLITICS OF THE JUDICIARY
A. Appointment of Judges to the Courts
1. The President is advised by the Justice
Dept., Attorney General, American Bar
Association, interest groups, & the process of
senatorial courtesy
a. In appointing Federal District
Judges, lists of possible appointees are
submitted by the Senator of the state where the
district court is located
b. Senatorial courtesy only applies to
District Courts and is not involved in either
appointments to the Federal Appeals Courts or
the Supreme Court
c. President takes a personal role in
selection of Supreme Court justices
2.Over 90% of all judicial appointments are
of the same party as the President
3. Senate advice and consent
a. Senate Judiciary Committee holds
hearings
b. Appointees are questioned by
committee
c. Committee makes a
recommendation to full Senate to
confirm or not
d. Questioning is partisan and
ideological
(1) most controversial issues
center around abortion, gay rights, right of
privacy, affirmative action, religion and the state
& the powers of police
Who are the Federal Judges?
III. The Adversarial System
A. Courts only hear justiciable disputes
1. A case in which a law is involved or
someone has been harmed (standing)
2. Political questions are not justiciable
a. A plaintiff cannot sue Congress
because they do not like a law
b. Congress must have violated the
Constitution (e.g. censoring all speech)
B. Plaintiffs must have standing
1. Someone suffering damage
C. Class action suits occur when many persons
suffer the same damage (e.g. segregated schools)
IV. STARE DECISIS—LANDMARK CASES
A. Precedent cases in which a rule of law has
been established by interpretation of the law or
the facts in the case
1. First established by William the Conqueror
2. Gives predictability and stability to the law
3. Changes in law occur incrementally
4. Once established as a fundamental right written
or interpreted from the Constitution the Supreme Court
Justices rarely change the precedent
V. JURISDICTION
A. The power of a court to hear a case
B. TWO LEVELS OF LAW
1. Federal law made by Congress,
enforced by the executive branch, tried
by the federal courts
2. State law made by state legislatures,
enforced by state executives, tried by
state courts
3. Federal law requires plaintiffs and
defendants be heard in federal courts
4. State laws are reserved for the individual
50 state systems
a. Every state has a separate system
C. Two types of jurisdiction
1. Courts of original jurisdiction hear cases
the first time, usually decided by a jury and
presided over by a judge
2. Courts of Appeal hear cases brought by a
plaintiff because the plaintiff does not like the
decision of the lower court
3. The Supreme Court hears cases both in
original and appellate jurisdiction
a. As a practical matter the Supremes
rarely hear original cases
4. The Supreme Court has jurisdiction in civil
and criminal cases
a. Civil law also known as tort law is the
code of laws by which plaintiffs seek compensation
for damages caused by the acts of others
i. Cases are always filed by a
private party
ii. Punishment includes
reimbursement to the plaintiff for damages
b. Criminal law is the code of law which
govern the behavior of persons
i. Punishment is incarceration,
death, or fine
VI. THE FEDERAL COURTS
A. The Supreme Court is the only court specified by
the constitution
B. The other federal courts were created by
Congress as "courts inferior to the Supreme
Court”
1. Constitutional courts are courts designed to
enforce the constitution and other laws of the United
States
a. U.S. Court of International Trade
(1) hears cases of tariff and trade laws
b. Foreign Intelligence Surveillance Court
(1) hears cases in secret involving
counter espionage (spying on spies) (federal wiretaps
and search warrants)
2. Legislative courts are those federal courts created
by Congress to enforce legislative acts of Congress
a. U.S. Court of Claims
(1) hear property and contract damage
against the U.S. government
b. Court of Appeals for the Armed Forces
(1) hears appeals of military tribunals
(2) Military Law is written by Congress
(a delegated duty)
(3) military law applies only to the
military NOT civilians
(a) civilians cannot be tried in
military courts unless martial law has been declared in a
national emergency (ex parte Milligan)
C. FEDERAL DISTRICT COURTS
1. Courts of original jurisdiction
2. Decide issues of facts in the case
3. Courts with or without juries
a. It is possible for a defendant to
request a trial without a jury
b. The judge decides the verdict
4. Decide civil and criminal cases
5. Require unanimity in jury's verdict
6. In criminal cases only the defendant can
appeal
7. 94 courts staffed by 646 judges and each
is assigned a U.S. attorney
a. nominated by the Prez, confirmed by
the Senate. Considerable amount of discretion
in pursuing charges against criminals
D. FEDERAL CIRCUIT COURTS OF APPEALS
1. Courts of appellate jurisdiction only
2. Hear no facts
3. No juries
4. Decide issues of law
5. Decisions of law made by judicial panels or single
judges
6. Either losing appellant or losing appellee can appeal to
the Supreme Court
a. It is rare for the Supreme Court to agree to
hear an appeal from the Circuit Courts of Appeal
7. Eleven numbered circuits
8. Twelfth, D.C. Court of Appeals
a. handles appeals regarding federal regulatory
commissions
9. Thirteenth, U.S. Court of Appeals for Federal Circuit
a. Deals with patents and contract and financial
claims against the gov
IX. APPEAL PROCEDURE
A. All petitions to courts are requests for the
court to perform some act
B. Writs are orders to do something issued by
the courts
C. petition for certiorari
1. Request for an appeal court to hear a
case from a lower court
D. Writ of certiorari (CERT)
1. An order from the appellate court to send
the case up for review
E. Cert pool
F. Discuss List
Why are they hearing
fewer cases?
G. rule of four
1. The rules of the Supreme Court requires 4 of 9
Justices agree to grant cert
a. Reasons for granting cert:
(1) The federal gov’t is asking for a
review
(2) The case involved conflict among
the circuit court of appeals
(3) The case presents a civil
liberties/civil rights question
(4) The case involves the ideological
preferences of the justices
(5) The case has significant political or
social interest, as evidenced by the #
of amicus briefs
H. Brief
1. The written arguments both sides use to
prove their position
a. No matters of fact from the original
case can be used in the argument
b. Appeal courts hear only matters of
law
c. Briefs use relevant precedent cases
of law to prove the parties' argument
2. Amicus curiae briefs are written legal
arguments made by interested parties in an
attempt to sway the judges making the
decision
a. National Organization of Women
taking a position in an abortion case
J. The Conference
1. The meeting of the justices to decide the
merits of the case and assign the writing of
the decision
a. If the Chief Justice is in the majority
he can write the opinion himself or assign the
job to someone else
b. If the Chief is on the minority side he
can write the opinion or, if not, the most senior
member of the majority writes the opinion or
assigns the dissent to someone else
c. Any other Justice can write an
opinion agreeing or disagreeing with the
majority or minority decision
K. The opinions
1. Majority opinion--the winning side of the
argument
2. Minority opinion--the losing side of the
argument
3. Concurring opinion--a Justice writes an
opinion agreeing with the majority but for
different reasons
4. Dissenting opinion--a Justice write an
opinion disagreeing with the majority and
giving their reasons
5. Unanimous opinion--all justices agree with
the decision
6. Split decision-- five majority & four minority
a one vote difference could change the
entire outcome of the case e.g. Bush v Gore
7. Per Curiam unsigned opinion of the Court
8. JUDICIAL PHILOSOPHY
a. Judicial activism--the Court should make
bold policy decisions and possibly even break new
constitutional ground
(1) a judge has no qualms about overturning
a legislative action
(2) constitutional interpretation should
reflect current values
b. Judicial restraint--a philosophy that
judges should play a minimal role in policymaking
(1) a judge is loath to overturn a legislative
action
(2) only interpret what the framers
literally wrote in Constitution
c. Conservatives claim they practice restraint
and accuse liberals of activism
(1) the definitions break down when
deciding free speech
(a) literal interpretation of free
speech means one can say anything even obscenity,
clearly not a conservative position
What do Supreme Court Clerks
do?
•
Supreme Court clerks are among the best and brightest recent law
school graduates. Tasks of a Supreme Court clerk including the
following:
– Perform initial screening of the 9,000 or so petitions that come to the Court
each term
– Draft memos to summarize the facts and issues in each case, recommending
whether the case should be accepted by the Court for full review
– Write a “bench memo” summarizing an accepted case and suggesting
questions for oral argument
– Write the first draft of an opinion
– Be an informal conduit for communicating and negotiating between other
justices’ chambers as to the final wording of an opinion
How Can Congress and the President check
the Supreme Court??
•
By changing the number of judges and/or
justices
–
•
FDR and court packing
By revising legislation in Congress at a later
date
–
•
When there are new members
By amending the Constitution
–
•
Supersedes all rulings by Court on subject
By altering the jurisdiction of the Court
–
•
Congress has this power but causes difficulties in
checks and balances
By restricting the remedies of the Court
–
Executive branch refuses to enforce the ruling
How Can Congress and the President check
the Supreme Court??
•
Federalism
--States were lax to desegregate schools after Brown
v. Board
Elena Kagan
Antonin Scalia
Clarence Thomas
Ruth Bader Ginsberg
Chief Justice John
Roberts
Anthony Kennedy
Stephen Breyer
Samuel Alito
Sonia Sotomayor