Unit 4
Judicial Branch
IV. Institutions of National Government: The Congress,
the Presidency, the
Bureaucracy, and the Federal Courts
35–45%
A. The major formal and informal institutional
arrangements of power
B. Relationships among these four institutions and
varying balances of power
C. Linkages between institutions and the following:
1. Public opinion and voters
2.Interest groups
3. Political parties
4. The media
5. State and local governments
Discuss this quote:
• “…a free court is a court where a judge is at liberty
to express his views and exercise his own
discretion…without any coercion or pressure from
anyone. That is liberty, and that is what America
stands for.” Federal Judge Waties Waring,
Federal Court System
I.
Characteristics
A.
Adversarial
1.
Plaintiff brings a charge
2.
Defendant is the one being charges
B. Passive
1. Federal judges are restrained by the Constitution to deciding ACTUAL
disputes or cases
2. depends on others to take the initiative.
C. Jurisdiction
1. court’s authority to hear a case
2. types of jurisdiction
2. types of jurisdiction
a. Original jurisdiction – courts in which a case is
1st heard
b. Appellate jurisdiction – courts that hear cases
brought to them on appeal from lower courts
c. exclusive jurisdiction – cases that can be
heard only in certain courts
d. concurrent jurisdiction – cases that can be
heard in either federal or state court
D. A complex dual court system
1. 2 separate court systems
2. Each state has its own system of courts.
over 97% of all criminal cases are heard in state
and local courts
3. Federal judiciary system spans the entire country.
Two Levels of Law
(Dual Court System)
State Courts
 Deal with state laws
 Three levels
 Trial courts
 Appellate courts (aka courts of
appeal)
 State supreme court (aka court
of final appeal)
 Cases may be
appealed to the USSC
if a federal or
constitutional issue is
involved
Federal Courts
Original jurisdiction over federal issues
o
Federal laws
o
Constitutional issues
o
Resident of one state v resident
of another state
o
Treaties
o
Maritime issues
o
Foreign govt is involved
o
US govt is involved
Three levels
a. Trial court (aka District Court)
b. Appellate court (aka Court of
Appeals)
c. Supreme Court (aka Court of
Final Appeal)
The Federal Court System
• A. The Constitution
o 1. Supreme Court is the only court mentioned in the constitution.
o 2. Congress has the power to create all other courts
• B. The Judiciary Act of 1789
o 1. established 3 tiered structure of federal courts
o Set the size of the Supreme Court at 6 justices; it was later expanded to 9
in 1869
C. District Courts
• 1. Currently 94 district courts staffed by about 700
judges.
o Each state has at least 1
• 2. District courts handle 300,000+ cases a year or
about 80% of the federal caseload
• 3. Most cases end in a plea bargain
o Only about 2% go to trial
D. Courts of Appeals
• 1. appellate courts authorized to review district
court decisions
o Empowered to rule on decisions of federal regulatory agencies such as
the FCC
• Do not hold trials or hear testimony
The Supreme Court
• America’s “court of last resort.”
• Reviews cases from the US courts of appeals and
state supreme courts
• Final arbiter of the Constitution
o Decisions establish precedents that are binding on the entire nation
• Marbury vs. Madison
o Established judicial review
o Judicial review: the power of the Supreme Court to declare federal
legislation invalid if it violates the Constitution
Structure of the Courts
http://www.supremecourtpress.com/chance_of_success.html
Back: Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan
Front: Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader
Ginsburg
III. The Selection of
Judges
A. The Lower Courts
1. Appointed by the president and
confirmed by a majority vote of the
Senate
2. Senatorial courtesy: unwritten tradition –
the Senate will not confirm nominations
for lower court positions that are opposed
by a senator of the president’s own party
from the state in which the nominee is to
serve (does not apply to SCOTUS)
Robert Bork and Anita
Hill
• Nominated to the
Supreme Court in
1987
• Views of Constitution
seemed Controversial
• Rejected by Senate
•
Robert Bork and Anita
Nominated to the Hill • Clarence Thomas
Supreme Court in
1987
• As solicitor general,
fired Watergate
special prosecutor
• Views of Constitution
seemed Controversial
• Rejected by Senate
nominated to SC in
1991
• Hill was an associate
of Thomas; accused
him of sexual
harassment in
confirmation hearings
B. The Supreme Court
1. Nomination criteria
a. Competence – credentials including prior judicial or
governmental experience
b. Ideology & policy preference – expected to share the
president’s policy preferences
i. Example: FDR appointed justices who supported New
Deal programs
ii. Reagan appointed justices sympathetic to conservative
goals
B. The Supreme Court
(cont’d)
c. Race, ethnicity and gender
2. confirmation process
a. names of possible nominees sent to FBI for background
check & to ABA for professional rating
b. Interest groups increasingly important
i. Public protest
ii. Appearances on TV & radio talk shows
iii. Emails to senators
c. Senate Judiciary committee holds public hearing on each
nominee
i. Recommendation to the full Senate
IV. How the Supreme Court works
1. Selecting cases
2. Original jurisdiction involving:
a.
b.
c.
2 or more states
US and a state government
US and foreign ambassadors and diplomats
3. Writs of certiorari
a. Order by the court directing a lower court to
send up the record in a case for review
b. Enables the SCOTUS to control its own caseload
4. Rule of Four
a. Clerks screen approximately 9,000 petitions
b. Weekly conference where justices discuss
petitions
c. 4/9 justices must agree to hear a case
B. Filing Briefs
1. Each party files a detailed written statement
arguing one side of a case cite relevant facts,
legal principles, precedents
2. amicus curiae (“friend of the court”) briefs
a.
b.
controversial cases attract a large number
attempt to lobby the court
C. Listening to Oral Arguments
1. Open to the public
2. 30 minutes to present case
D. Discussion and voting
1. Closed meeting held on Fridays
2. Chief Justice presides
•
Chief Justice Roberts is known for encouraging
discussion
E. Writing opinions
1. Formal opinions present issues, establish
precedents, set guidelines for lower courts
2. Types of opinions
a.
b.
c.
Majority
concurring
minority or dissenting
V. Factors influencing SCOTUS
decisions
A. Precedent
1.
2.
Stare decisis – “let the decision stand”
Examples – Marbury v. Madison established judicial review
applied to Congress and the President
3. Exceptions – court can overturn previous decisions
o Plessy v. Ferguson overturned in Brown v. Board of Ed of
Topeka
B. Judicial Philosophy
1.
2.
Judicial Restraint
Judicial Activism
Activism vs. Restraint
• Judicial restraint: judges' own philosophies or policy
preferences should not be injected into the law
o whenever reasonably possible construe the law so as to avoid second
guessing the policy decisions made by other governmental institutions
o based on the concept that judges have no popular mandate to act as
policy makers and should defer to the decisions of the elected "political"
branches
o so long as these policymakers stay within the limits of their powers as
defined by the US Constitution and the constitutions of the several states.
• Judicial activism: seeks to determine what is "just,"
not necessarily what is intended by law
o the U.S. Constitution is a living, dynamic document which must necessarily
be interpreted to meet the needs of modern times.
C. Public Opinion
1. Constitution insulated the SCOTUS from direct
political pressures
a.
b.
c.
d.
appointed for life terms subject to good behavior
salaries cannot be reduced
certiorari process lets it set own agenda
public has limited access to proceedings
2. BUT aware and sensitive to public opinion
a.
b.
c.
d.
e.
Appointment and confirmation process
Congress and state legislatures can amend the
Constitution
Congress can change SCOTUS’ appellate jurisdiction
Congress can change the number of justices
Justices can be impeached
AP exam lookout
• Judicial restraint and judicial activism are
philosophies that appear on MOST AP US GOPO
exams
• Be able to explain how the SCOTUS is insulated from
public opinion AND
• The factors that keep the court from straying too far
from public opinion