Chapter 14
THE COURTS
2
Judicial Policymaking

Judges confront conflicting values in cases before
them

Some courts, such as the Supreme Court, make
fundamental policy decisions
 Decisions become precedent for similar cases

Court decisions can, therefore, undo work of elected
majorities
3
National Judicial Supremacy
 Supreme Court--- only court defined by
Article III, Section 1 of the Constitution
 Congress given power to create national
court system
 Judiciary Act of 1789 created system of
federal courts separate from state courts
 In early years of Republic, not particularly
powerful
4
Chief Justice John Marshall
5
Judicial Review of
the Other Branches

Constitution does not speak to question of “who
should prevail?” in conflict between different
branches of government

In Marbury v. Madison (1803), Supreme Court
established power of judicial review
 Ruled that act of Congress authorizing Supreme
Court to issue orders against government officials
unconstitutional
6
Judicial Review of
State Government

In 1796, Supreme Court ruled that a Virginia
law canceling a debt to a British creditor
violated U.S. Constitution's Supremacy Clause
 Virginia law therefore nullified
 National supremacy requires Supreme
Court to impose uniformity of national
laws
7
The Exercise of Judicial Review
 The components of judicial review:
 Federal courts can declare national, state,
and local laws unconstitutional
 National laws or treaties supreme when
conflict with state or local laws
 Supreme Court final authority on meaning
of Constitution
8
The Exercise of Judicial Review

Is judicial review undemocratic since federal
judges appointed?
 Federalist No. 78 saw judicial review as barrier
to legislative oppression
 Constitutional amendments and
impeachment means to correct judicial errors

However, this power does mean judges can
operate counter to majoritarian rule
9
The Organization of Courts

U.S. has complex court system

Individuals fall under jurisdiction of both
national and state courts
 Litigants file nearly all (99%) of cases in
state courts
 Volume of state cases increases about 1% a
year, mostly contract disputes
10
Figure 14.1
The Federal and State Court Systems,
2008-2009
11
Some Court Fundamentals

The government prosecutes criminal cases, or
violations of penal code

Some crimes common to all states, others
specific to individual state or a few states
 Maintaining public order largely a state or local
function
 Federal criminal cases related to activities that
fall under powers of national government

Civil cases involve disputed claims to something
of value
12
Procedures and Policymaking
 Most cases never go to trial
 Prosecutors may plea bargain
 Parties to a civil case may settle or one may
abandon efforts
 Cases that go to court end in an adjudication
 Written reasons supporting a judicial decision
called opinions
13
Judicial Policymaking

Judges make policy two ways:
 Rulings where no legislation exists make
common, or judge-made law
 Judicial interpretations of legislative acts
called statutory construction

With or without legislation, judges look to
relevant opinions of higher courts to guide
them
14
The Federal Court System
 Organized in three tiers, as a pyramid
 Litigation starts with U.S. District Courts
 Appeals then go to the U.S. Courts of
Appeals
 Final tier is Supreme Court

Courts of Appeals and Supreme Court
generally review only cases already decided
in lower courts
15
The Federal Court System
16
The U.S. District Courts
 Each state has at least one federal
district court
 A total of 94 federal district courts
 Entry point for federal court system
 U.S. magistrate judges assist district judges
but lack independent judicial authority
17
Sources of Litigation
 Federal criminal cases
 Civil cases alleging a violation of national law
 Civil cases brought against the U.S.
government
 Civil cases between citizens of different
states if disputed amount exceeds $75,000
18
The U.S. Courts of Appeals
 Twelve regional U.S. courts of appeals
 Thirteenth court, U.S. Court of Appeals for the
Federal Circuit, is not a regional court

Each appeals court hears cases from a
geographical area, or circuit

All cases resolved in U.S. district court or
decisions of federal administrative agencies can
19
be appealed
Geographic Boundaries of Federal District
Courts and Circuit Courts of Appeals
20
Appellate Court Proceedings
 Rulings based on rulings made and
procedures followed in trial courts
 If ruling incorrect or proper procedure not
followed, may order new trial
 Most cases resolved by panel of 3 judges
 Judges review written briefs
 May or may not schedule oral arguments
21
Precedents and Making Decisions

Written judgment of appellate courts serve as
precedent for subsequent cases
 Judges make policy to extent they influence other
courts
 Stare decisis : Let the Decision Stand.. provides
continuity and predictability to the law
 Rulings designed to correct errors in district court
proceedings and to interpret the law
22
Uniformity of Law
 Appellate courts try to harmonize
decisions in region when district judges
make conflicting rulings
 However, courts of appeals not bound by
decisions of other circuits
 Supreme Court avenue for resolving
conflicting decisions by different circuit
courts of appeals
23
The Supreme Court
 Supreme Court strives to achieve a just
balance among the values of freedom,
order, and equality
 Flag burning as a form of political protest
 School desegregation
 Race as a factor in university admissions
24
The Justices of the Supreme Court
of the United States
25
A Supreme Court of Its Own
 The United Kingdom latest democracy
to establish a supreme court
 Prior to October, 2009, a committee
from the House of Lords exercised
judicial functions
 New court independent of Parliament
 Signals an increasing federalization of
the United Kingdom
26
UK Supreme Court
27
Access to the Court

Idea that anyone can take a case to the
Supreme Court theory, not fact

Court’s cases come from two sources:
 Original jurisdiction established by Article III,
Section 2, of the Constitution
 Appellate jurisdiction from U. S. courts of
appeals or a state’s court of last resort

Cases from state courts must have
exhausted appeals in their state system and
deal with a federal question
28
The Supreme Court’s Docket

Supreme Court hears fewer than 100 cases
from the more than 8,000 submitted each
year
 Requests made by petition for certiorari
 Rule of four unwritten requirement
 Business cases substantial portion of docket

Justices meet twice a week to vote on
previously argued cases and consider new
cases
29
The Solicitor General

Represents the national government before
the Supreme Court
 Third-ranking position in Department of Justice

Duties include determining whether to appeal
a lower court’s decision, reviewing briefs for
appeals, and deciding whether or not to file
amicus curiae briefs in any appellate court
30
The Solicitor General
 Position has two roles:
 Advocate for president’s policy preferences
 Defend the institutional interests of the
national government
 Traditionally recommends only cases of
general importance
 Some call position “the tenth justice”
31
Decision Making

Once review granted, attorneys submit
written briefs --they are definitely not brief!

Oral arguments held two to three hours a day,
five to six days per month from October
through April

After arguments heard, justices hold
conferences to discuss cases and vote
 These meetings limited to the nine justices
32
Journey of a Lifetime
33
Judicial Restraint and Judicial Activism

Concept of judicial restraint means decisions
based on legal doctrines, prior decisions, and
deference to elected officials

Judicial activists maintain judges should use
powers to promote judges’ preferred social
and political goals

Terms not limited to a particular ideology
34
Figure 14-3
Measuring Judicial Activism
35
Judgment and Argument

Voting outcome is called the judgment

Justices in the majority draft opinion setting
out reasons for decision
 If all agree, decision is unanimous
 Justices who agree but for different reasons
than listed in the majority opinion may file a
concurring opinion
 Justices who disagree may file a dissenting
opinion
36
The Opinion

The chief justice or most senior justice in the
majority decides which justice will write
majority opinion

Draft opinion circulated among all justices for
criticisms and suggestions
 Justices may choose to change initial vote
during this time

Dissent happening more frequently in recent
years
37
Strategies on the Court
Cases that reach the Supreme Court require
difficult choices
 Ideologies reflect values; some justices have
tried to encourage appointment of likeminded colleagues
 Liberals value freedom over order and
equality over freedom
 Conservatives choose order over freedom
and freedom over equality
 Intellectual ability also affects debates

38
The Chief Justice
 Forms docket
 Directs Court’s conferences
 May also serve these roles:
 Generating solidarity within the group
 Intellectual leadership
 Policy leadership
39
Judicial Recruitment
 No formal requirements
for appointments
to federal courts
 President nominates; Senate must confirm
 Congress sets compensation:
Chief Justice of the Supreme Court
Associate Supreme Court justices
Courts of Appeals justices
$223,500
$213,900
$184,500
District judges
$174,000
Magistrate-judges
$160,080
40
State Judicial Selection

Governor appoints judges in more than half of
the states
 Some must then face retention elections
Partisan election
 Nonpartisan election
 Legislative election
 In some states, must be confirmed in
legislature

41
The Appointment of Federal Judges
 Appointments for life
 Presidents look for judges who favor
their policies
 Office of White House Counsel helps
identify candidates
 Justice Department assists with screening
42
The “Advice and Consent”
of the Senate
 For district and appeals court, senator
from president’s party must approve
 Senatorial courtesy
 Or state’s House delegation, if no senator
from president’s party
 Recent presidents have tried to appoint
more women and minorities
43
Senate Confirmation
 Senate Judiciary Committee conducts
hearings for each judicial nominee
 Confirmations have become ideological
battleground
 Hearings focus on judicial policy and
approach towards interpretations of the law
 Filibusters sometimes used to prevent
appointments
44
The American Bar Association
 By custom, ABA screens judicial
candidates
 Well qualified
 Qualified
 Not qualified
 George W. Bush did not use, believing
group too liberal
 President Obama restored use
45
Recent Presidents and the Federal Judiciary

While recent presidents have appointed more
diverse judiciary, ideology rules

Carter’s appointments most liberal

Reagan and George W. Bush-appointed
judges most conservative

Ideological appointments easier when
president’s party controls Senate
46
Appointment to the Supreme Court
 Attract extreme public scrutiny
 Since 1900, six appointments have failed to
be confirmed by Senate
 Most important factor: partisan politics
 Most nominees have prior judicial experience
 “Lame duck” presidents frequently
unsuccessful
47
Justice Elena Kagan Joining
the Supreme Court
48
Ideological Shifts

President George W. Bush nominated two Supreme
Court justices, John Roberts and Samuel Alito

As a result, ideology of court more conservative

Justice Kennedy now “swing vote”

President Obama nominated Sonia Sotomayor and
Elena Kagan
49
Figure 14-4
A More Representative Court
50
The Consequences of
Judicial Decisions
 Judicial rulings small percentage of legal
dispositions
 Most cases end in plea bargain or no
court judgment
 About 10 percent of civil and criminal cases
go to trial
 Many cases appealed to delay day of
reckoning
51
Supreme Court Rulings:
Implementation and Impact

Others must implement Supreme Court
decisions

Ambiguous opinions affect implementation
 Desegregation and school prayer

Roe v. Wade generated (and continues to
generate) heated response from public
52
Public Opinion and
the Supreme Court
 Even though not elected, ideologically
balanced Court and public sentiment
eventually align in most cases
 One exception: school prayer
 Poll in 2009 showed six in 10 Americans
more likely to approve than disapprove
of job Supreme Court doing
53
The Courts and
Models of Democracy
Majoritarian model: courts should follow
the letter of the law and defer changes to
elected representatives
 Pluralist model: courts are policymaking
branch of government and have legitimate
right to consciously advance group interests

 Class action suits
 State court rulings based on either federal law,
state law, or both
54
The Right to Die

Supreme Court rulings in Washington v.
Glucksberg and Vacco v. Quill that U.S.
Constitution does not protect a right to
assisted suicide
 States allowed to make own laws
Silence in Terry Schiavo case let stand lower
court’s ruling
 Other industrial democracies have
decriminalized right to die

55