Seated left to right: Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John G.
Roberts, Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg. Standing left to right:
Justice Sonia Sotomayor, Justice Stephen G. Breyer, Justice Samuel Anthony Alito, Jr., Justice
Elena Kagan.
The Politics of Selecting Judges
Previous Backgrounds
Number Job Experience
33
22
18
15
8
7
6
3
1
Federal Judges
Practicing Lawyers
State Court Judges
Other
Cabinet Members
Senators
Attorney Generals
Governors
President (POTUS)
Most Recent Example
Sonia Sotomayor (2009)
Lewis F. Powell (1971)
Sandra Day O’Connor (1981)
Elena Kagan, Solicitor General (2010)
Arthur Goldberg, Labor Sec. (1962)
Harold H. Burton, R-Oh (1945)
Tom Clark (1949)
Earl Warren, D-Ca (1953)
William Howard Taft (1921)
The Politics of Appointing Federal Judges
•Political Litmus Tests
•Senate: Advice and Consent
•The Role of Party, Race, Age, and Gender
•The Role of Ideology and Judicial Experience
•The Role of Judicial Philosophy and Law Degrees
Liberal
Breyer
Scalia
Thomas
Ginsburg
Sotomayor
Roberts
Kennedy
Self-Restraint
Alito
Conservative
Activist
Inside The Supreme Court
Building
The Federal Judicial System
Article III (Constitutional)
Versus
Article I (Legislative)
Courts
Original Jurisdiction
Appellate Jurisdiction
The authority of a
court to hear a case
“in the first instance”
The authority of a
court to review
decisions made by
lower courts
The Scope of Judicial Power
• Judicial power is passive and reactive
• Hamilton called it “the least dangerous
branch.”
• Power only to decide judicial disputes
• Cases must be ripe
• Cases cannot be moot
• Cases cannot be political
Judicial Federalism: State & Federal Courts
• A Dual court system
– Two court systems, state and federal, exist and
operate at the same time in the same geographic
areas
Understanding the Federal Judiciary
• The Framers viewed the federal judiciary as an
important check against Congress and the
president
• But the judiciary has no influence over the
“sword” or the “purse”
• Judicial power is ensured via:
– Insulation from public opinion
– Insulation from the rest of
government
Alexander Hamilton
The Federal Court System
The Judiciary Act of 1789
Established the federal court system by dividing the country into
federal judicial districts, creating district courts and courts of
appeals
District Courts
94 across the country and US territories
• 89 throughout the states according to
population distribution
• 1 each in territory
----D.C.
----Puerto Rico
----Guam
----US Virgin Islands
----Mariana Islands
Courts of Appeals (aka Circuit Courts)
13 across country
•
12 hear appeals from district courts
•
1 hears appeals from
Special courts like claims court, tax court, etc
Federal agencies like Office of Patents and Trademarks,
Civil Service Commission, etc
The Eleven U.S. Circuit Courts of Appeal
Appointed by president
Confirmed by Senate
•
Advisors recommend
candidates
•Judiciary committee
holds hearings
•
Professional background
•
Political/social views
•Professional
background
•
Collegiate career
•Political/social views
•Simple majority vote
Life terms
• Death
• Resignation/retirement
• Impeachment
Balance rights of individual vs. common good
Federal judges are appointed by the president and
confirmed by the Senate, this is an example of which
principle of government?
United States Supreme Court
Judicial Review
Power to overturn any Act of Congress or executive
action the Court deems unconstitutional
Is it in the Constitution? Not specifically stated;
however, the Constitution says the Court shall
“interpret the law”
Established by Marbury v Madison (1803)
Facts of the case: Marbury appointed to federal
judgeship by outgoing President John Adams.
New President Thomas Jefferson tells Secretary of
State Madison NOT to deliver letter of appointment
(Marbury can’t take his new job)
• Marbury sued in SCOTUS citing right to do so in Federal
Judiciary Act of 1789
• Justices considered both facts of case and law in question
SCOTUS issued opinion:
Marbury was legally appointed as federal judge
and Secretary of State Madison should have
delivered the letter BUT the part of the Federal
Judiciary Act of 1789 that said the USSC would
hear this type of case is unconstitutional.
The Constitution lists specific types of cases that
SCOTUS has original jurisdiction over. This was not
one of them. SO, because that part of law was
unconstitutional, Marbury shouldn’t have sued in
SCOTUS nor do they have authority to make Madison
deliver the letter
The Supreme Court & How it Operates
The Powers of
the Chief Justice
Appointed by the president
upon confirmation by the
Senate
Responsible for assigning
judges to committees,
responding to proposed
legislation that affects the
judiciary, and delivering the
annual Report on the State
of the Judiciary
Which Cases Reach
the Supreme Court?
The Supreme Court & How it Operates
The Role of the Law Clerks
The number of clerks has increased
over time, leading to longer and
more elaborate opinions. The clerks
for the nine Supreme Court Justices
play a key role in the process. They
are chosen by each justice. Clerks do
the initial screening of petitions. The
clerks of the justices participate in a
pool in which they divide up the
cases and write a single
memorandum about each case that
is sent to the justices. There is
debate over how much influence
clerks have on Court decisions
The Supreme Court & How it Operates
•The Solicitor General
•Amicus Curiae Briefs
•Oral Arguments
•Behind the Curtains: The Conference
On the federal level, the job of prosecution
belongs to the
1. 94 U.S. Attorneys.
2. the Attorney General.
3. the Solicitor General
Justices are appointed for life terms
Why it matters!!
• Conservative presidents = conservative justices
• Liberal presidents = liberal justices
• Justices serve for years
• Justices interpret the Constitution; set precedent
• Those precedents affect all Americans
A day in the life . . .
Calendar
a. Term: first Monday in October – end of June
b. Sittings: 2-wk sessions when Justices hear cases
then retire to decide opinions
Selecting cases
Original jurisdiction cases—must hear these
• State governments vs. state governments
• A Foreign representative is a party in a case
Appellate jurisdiction cases:
Justices choose to hear these cases
1. Must deal with a federal or constitutional issue
2. Must impact a majority of citizens
“Rule of Four”—four of the nine justices must agree
to hear the individual case out of the 1000s of cases
appealed to them.
Case is on the docket (a court’s schedule or calendar)
– Briefs are submitted—written summary of each lawyer’s
side of the case
– Justices study lower court proceedings and briefs
Oral arguments
– Each side gets 30 minutes to argue
– Justices may ask questions
Deliberations
a. Chief Justice summarizes case and main point
b. Group discussion, each presents views
c. Justices vote—simple majority “wins”
The Opinions of the Court
Opinions issued
Written statement explaining ruling and reasons for
reaching that decision
Majority opinion: “winning” decision, sets precedent
Concurring opinion: agree with majority opinion but
for different reasons
Dissenting opinion (minority opinion): disagree with
majority opinion
JUDICIAL PHILOSOPHY: An ongoing “discussion” in American
politics about the extent to which justices/judges should
involve themselves with setting policy. Judges don’t make laws
so how does a judge set policy?
JUDICIAL ACTIVISM: the Judicial branch is an equal
partner with the Legislative and Executive and
should be actively involved in interpreting and
applying laws. Strong belief in judicial review
JUDICIAL RESTRAINT: the Jud branch should let
the Leg and Exec branches set policy and only
get involved if that policy is a flagrant violation
of Constitution. Not a strong belief in judicial
review.
*NEITHER VIEW IS LIBERAL OR CONSERVATIVE*
Another Route to Supreme Court
Supreme Court
State Supreme
Court
Court of Appeals
State Court
of Appeals
District Court
Superior Court
The Supreme Court & How it Operates
•Opinions
a. Majority
b. Dissenting
c. Concurring
•Circulating Drafts
•Releasing Opinions to the Public
•After the Court Decides
• Sometimes remands the case
• Uncertain effect on individuals who are not
immediate parties to the suit
• Decisions are sometimes ignored
• Difficult to implement decisions requiring the
cooperation of large numbers of officials
Factors influencing the Court
1. Constitution—fundamental law of US
2. Precedent—are there past similar cases
3. Intent—of the Constitution and law(s) in question
4. Social values—what is the current view of most
Americans (will of the people)
5. Personal judicial philosophy—to what extent should
justices become involved in setting policy
What happens if the Supreme Court rules on a case
that the majority of the country and lawmakers are
against?
Do we just have to live with it?
Amend the
Constitution!!!!!