The Judicial Branch
United States v other nations



Only in the U.S. do judges play such a
large role in policy-making.
Judicial Review- the right of federal
courts to rule on the constitutionality of
laws and executive actions.
It’s the #1 judicial weapon in the checks
and balances system.
How to interpret the
Constitution?



There is much debate on how the
Constitution should be interpreted:
1) Strict constructionists- judges are
bound by the wording of Constitution.
(narrowly interpret)
2) Activist- judges should look to the
underlying principles of the Constitution.
(broadly interpret).
Precedents


Definition- When judges rule on cases
by using the decisions of previous
judges.
Also known as Stare Decisis- “Let the
decision stand.”
The History of the Federal
Judiciary



Most founders probably expected judicial
review but did not anticipate the courts to
have such a large role in policy-making.
Hamilton - Federalist #78- the independence
of judges is essential to a democracy.
He believed the courts to be the least
dangerous of the three branches.
National Supremacy and
Slavery 1789-1861




Marbury v Madison (1803)
McCulloch v. Maryland (1819)
Gibbons v. Ogden (1824)- interstate
commerce clause strengthened (under
authority of federal government).
Dred Scott v. Sanford (1857)- Blacks could
not become free citizens of the U.S.
Government & the Economy
1865-1936



Dominant issue: Could the federal
government regulate the economy?
Private property protected by the 14th
amendment.
Narrow interpretation of 14th and 15th
amendments in relation to blacks allowing
segregation (Plessy v Feruson (1896),
excluded blacks from voting in many states.
Government & political liberty
(1936-present)




Court establishes tradition of deferring to the
legislature in economic regulation cases.
Courts shift attention to personal liberties as
is active in defining rights.
Warren Court- liberal protection of rights and
liberties against government trespass.
1992- Court rules that states have the right to
resist some federal action.
Federal Courts Structure


Two kinds of federal courts were created by
Congress to handle cases that the Supreme
Court does not need to decide.
1) Constitutional Courts- exercise judicial
powers found in Article III



Judges serve for life, with good behavior
Salaries not reduced while in office
Appointed by prez, confirmed by Senate
Constitutional Courts

District Courts- (94)


At least 1 in each state
Trial courts of the federal system
Single judge and jury present.
Circuit Court of Appeals (12)
appellate court
located regionally
panel of 3 judges
Circuit Court of Appeals




Decisions appealed to the US Supreme
Court.
Over 8000 decisions get appealed in a
calendar year.
Most get denied. When this happens, the
decision is REMANDED back to the lower
court, which means the circuit court decision
stands.
Circuit Court decisions are usually the court
of last resort for most cases.
Selecting Judges


All constitutional court judges are
nominated by the president and
confirmed by the Senate, on
recommendation from the Senate
Judiciary Committee.
Senatorial Courtesy usually employed
for district judges.
The Litmus Test



Presidents seek judges who share an
ideology similar to their own.
Greatest impact on court decisions is
ideology.
Litmus test during Reagan/Bush
administrations was pro-life.
Jurisdiction of Courts




Dual court system- state courts and federal
courts have their own jurisdiction.
Federal cases listed in Article III and the 11th
Amendment.
Federal question cases: involving US
Constitution, federal law and treaties.
Also cases involving different states or
citizens of different states.
Federal or State Court?



Some cases can be tried at either level.
Example: if both federal and state laws
have been broken. (dual sovereignty)
State cases can sometimes be
appealed to the Supreme Court….a
federal question must be raised.
Route to the Supreme Court






Most federal cases begin in district court, then
are appealed to circuit court.
Supreme Court picks which cases it wants to
hear. Rule of Four- 4 justices agree to hear
case, then issue a writ of certiorari
Usually pick cases that deal with:
1) significant federal or constitutional question
2) conflicting decisions by circuit courts
3) constitutional interpretation by a high state
court, about state or federal law.
Going Supreme!!





About 8000 requests for certiorari are
submitted, the Supreme Court usually limits
its DOCKET to no more than 100 cases in a
year.
The Supreme Court sometimes hears cases
on original jurisdiction:
1) when a foreign ambassador is named in a
case
2) when a state is named in a case
3) when maritime/admirality law is involved.
Supreme Court in Action



Each side has an 1/2 hour for oral
arguments, including interruptions for
questions by justices.
Briefs are submitted by each side and
friends of the court - amicus curiae
briefs.
Solicitor general- 10th justice
Conference Procedures








Judges meet in chambers.
Chief Justice speaks first, votes last
Selection of opinion writer
Types of opinions:
1) per curiam- brief and unsigned
2) majority opinion- official decision
3) concurring opinion- agree, but for different
reason
4) Dissenting opinion- minority opinion.
Checks on Judicial power






Congress:
1) confirmation and impeachment
2) change the number of judges
3) changing jurisdiction of courts
4) revising legislation
5) amending the Constitution
Public Opinion and the Courts


Judges do not follow public opinion.
However, over time if public opinion is
consistent, judges will adapt laws to
mirror public opinion.