The American Legal System
and the Courts
Chapter 10
In this discussion we will learn about
• The notion of law and the role that it plays in
democratic society
• The constitutional basis for the American judicial
system
• The dual system of state and federal courts in the
United States
• The Supreme Court and the politics that surround and
support it
• The relationship of citizens to courts in America
The role of law in democratic
societies
• Provide security
• Provide predictability
• Resolve conflict
– Main role of the British Police
– Traditionally only carried clubs
• Reflect and enforce conformity to society’s values
• Distribute benefits and rewards society has to offer
and allocate the costs of those goods
– Civil court system
• In sum, help maintain “civilization” / civilized society
– Without law, there would be no government
– End result, anarchy (modern day Samolia)
Characteristics of the
American legal tradition
• Based on common law
(England) instead of civil law
(Rome) – the two major types of
law in the world
– http://my.ilstu.edu/~ewells/cjs102/C
ommonvsCivilLaw-Chart.pdf (from
Ed Wells at Illinois State)
• Adversarial instead of
inquisitorial
– Instead of investigations intent on
discovering “truth”, two sides
present opposing cases and the
won that seem the most truthful
wins
• Litigious (li-ti-jus)
– We sue.
Common Law vs. Civil Law
Not every legal system is based on common law.
Main Differences between Common and
Civil Law
Common law
Civil law
• Case law
• Based on customs/ English
tradition
• Judge and jury
• Trial dominated by lawyers with
judge as referee
• Judge uses inductive reasoning
about the facts
• Court may fashion an equitable
remedy- one that is “fair”
• Greater opportunity for false
positive or false negative
•
•
•
•
Principle of legality
Based on Roman law
One or a panel of judges
Judge actively participates in
seeking of evidence and
examining of witnesses
• Judge uses deductive reasoning
• Inappropriate for Court to fashion
a remedy not set forth in the
Code
• Greater opportunity for
corruption
Disadvantage to Jury System
The development of courts, judicial review,
• Court system set up to help check executive and
legislative branches
• Not much written about it in Constitution (Article III)
– Shortest of the three main articles; only three sections
– Article III of the Constitution
• Marbury v. Madison (1803)
– Expanded power and role of S.C. through judicial review
– Judicial Review: Power of the courts of a country to examine
the actions of the legislative, executive, and administrative
arms of the government and to determine whether such
actions are consistent with the constitution. Actions judged
inconsistent are declared unconstitutional and, therefore, null
and void.
• The institution of judicial review in this sense depends upon the
existence of a written constitution.
John Marshall
• Powerful S.C.
thanks to John
Marshall
– Marshall was Chief
Justice of the S.C.,
serving from
February 4, 1801,
until his death in
1835.
Judicial Structure
Article III Section 1
• This section creates a federal supreme court while
leaving the creation of lower “inferior” courts to
Congress.
• The first Congress created a three-tiered court system
of federal courts with the Judiciary Act of 1789.
• Understanding the Federal Courts is a good
companion for this chapter.
10
From text
Circuit Courts
12
In St. Louis, we use the 94th District Court, and 8th Circuit Court of Appeals
U.S. Courts of Appeal
Understanding jurisdiction
• Courts with original jurisdiction
– U.S. district courts
– State trial courts
• Courts with appellate jurisdiction
– U.S. courts of appeals
– State intermediate appellate courts
– State supreme courts
• Court with both original and appellate
jurisdiction
– U.S. Supreme Court
U.S. district courts
• Lowest level of federal court system
• 94 district courts (each state has at least one)
– United States District Court of Eastern Missouri
• Hear both criminal and civil cases
• Juries responsible for verdict
U.S. courts of appeals
• Arranged into 12 circuits
• Solely appellate jurisdiction
• No new evidence or witnesses
• Panel of three judges makes ruling, not a jury
Missouri Trial Circuit Courts
St. Louis County uses the
21st Judicial Circuit
Missouri State Court System
Missouri appellate courts
Missouri Supreme Court
Paul Wilson
George Draper
Richard Teitelman
Mary Russell
Chief Justice
Laura Denvir Stith
Zel Fischer
Patricia Breckenridge
Selection of judges
States
Federal
• Method varies by state
-Appointment
-Nonpartisan election
• All federal judges are
nominated by the
president and confirmed
by the Senate
• Senatorial courtesy is
often invoked for lower
level federal courts
-Partisan election
U.S.
SUPREME
COURT
Members
Biographies
Sodomayor-L
Breyer-L
Note: The Constitution
doesn't require that S.C.
justices be attorneys.
Alito-C
Kagan-L
Thomas-C
Scalia-C
Roberts-C
Kennedy-C
Ginsberg-L
23
New Supreme Court Session
Started Oct. 1
• 3 Women for the first
time in history
• No trial attorneys
• No non-layers
• New Court said to
embrace Judicial
Activism
Ginsburg
Sotomayor
Kagan
O’Connor,
retired
24
Separation of Church and State?
Red Mass
Sunday before
the new term.
25
2010-2011 Docket
1. Can you ban anti-gay protests at funerals (1st Amendment free
speech issue)
– Is a funeral a public or private place
– Is there an intentional desire to inflict emotional distress
YES
2. Can you ban the sale of violent video games to minors?
– $1,000 fine for violent game sale to under 18 year old
– Can you ban “speech” for children that you cannot ban for
adults?
– Is “moral disapproval” enough of a compelling reason for
ban to youth?
– What if you can causally prove psychological harm to kids?
(note difference between correlation and causation).
NO
Free Speech
27
2010-2011 Docket
3. NASA v. CalTech Although students leaving CalTech and
being hired by NASA have disclosure privacy rights (don’t
have to admit to smoking pot in college), can NASA collect
such information on its own?
YES
4. Arizona Law Can Arizona (or States in general) go beyond
Federal law in immigration cases. Specifically, can Arizona
make a law making it illegal to hire an illegal alien?
YES
28
2010-2011 Docket
6. Can overcrowding in prisons hold up as illegal?
– California letting prisoners go because of lack of
space.
– Is prison over-crowding cruel and unusual
punishment
YES
7. Wal-Mart v. Dukes Can all female employee of WalMart be a part of a class action suit.
NO
29
2011-12 Docket
United States v. Jones, No. 10-1259
– Question presented: Do the police need a
warrant to attach a tracking device (GPS) to a car
and monitor its movements over several weeks?
– Ruling “Yes”
30
2012-13 Docket
summarized from CNN report
Fisher v. University
of Texas at Austin
(Affirmative action)
• At issue: A challenge to the school's race-conscious admissions policies.
• The case: Abigail Fisher individually sued the flagship state university after
her college application was rejected in 2008 when she was a high school
senior in Sugar Land, Texas.
• The arguments: Fisher claims being turned away in part because she is
white. The school defends its policy of considering race as one of many
factors -- such as test scores, community service, leadership and work
experience -- designed to ensure a diverse campus.
• Result: the Court reinforced that affirmative action must be strictly
reviewed, but it did not outlaw those programs. Meaning the university’s
use of affirmative action will be constitutional only if it is “narrowly tailored.”
2012 -2013 Docket
Shelby County, AL v. Holder;
Nix v. Holder
(Voting rights)
• At issue: Continued use by the federal government of the key
enforcement provision of the landmark Voting Rights Act of
1965.
• The case: Section 5 gives federal authorities open-ended
oversight of states and localities with a history of voter
discrimination. Any changes in voting laws and procedures in
the covered states must be "pre-cleared" with Washington.
• The results: The Supreme Court struck down the heart of the
Voting Rights Act of 1965 by a 5-to-4 vote, freeing nine states,
mostly in the South, to change their election laws without
advance federal approval.
2014-2015 Docket
Young v. United Parcel Service, Inc.
• In Young v. United Parcel Service, Inc., the Supreme Court
will decide whether the Pregnancy Discrimination Act (“PDA”)
requires an employer to provide light duty to a worker if she
needs it because of pregnancy, if the employer provides light
duty to workers with similar limitations in ability to work when
they arise out of disability or on-the-job injury.
2014-2015 Docket
Equal Employment
Opportunity
Commission v.
Abercrombie &
Fitch Stores, Inc.
• EEOC v. Abercrombie & Fitch Stores, Inc., arises out of the
allegation that Abercrombie discriminated against Samantha
Elauf by refusing to hire her because she wore a hijab and thus
did not conform to their “Look Policy.” Title VII’s prohibition on
religious discrimination requires employers to make reasonable
accommodations for religion, such as modifying dress codes, if
they can do so without undue hardship.
2014-2015 Docket
Heien v. North Carolina
• In 2009, North Carolina police stopped a vehicle on account of
a broken right brake light. The car's left brake light worked just
fine. That traffic stop led to a search of the vehicle, which in turn
led to the discovery of a plastic sandwich bag filled with
cocaine. The driver, Nicholas Heien, was arrested and charged
with attempted drug trafficking.
• But there was a problem. According to North Carolina law,
motor vehicles are only required to have "a stop lamp." In other
words, it's perfectly legal to drive around the state with one
busted brake light so long as the other one works. The arresting
officer in this case was wrong about the law and had no legal
basis for the original traffic stop.
2014-2015 Docket
Holt v.
• According to the Religious Land Use and
Institutionalized Persons Act of 2000
Hobbs (RLUIPA), "no government shall impose a
substantial burden on the religious exercise" of
prisoners residing in institutions that receive
federal funding, unless "a compelling
government interest" According Abdul Maalik
Muhammed, a prisoner currently incarcerated
by the Arkansas Department of Corrections,
that state's refusal to let him grow a one-half
inch beard in accordance with his religious
views burdens his religious liberty in violation
of the RLUIPA
• According to the Arkansas Department of
Corrections, the no-beard rule is necessary to
protect the safety and security of inmates.
2014-2015 Docket
North Carolina Board of Dental Examiners v.
Federal Trade Commission
• In 2006 the North Carolina State Board of Dental Examiners
began sending out cease-and-desist letters to non-dentists who
offered teeth-whitening services to paying customers.
According to the Board, those services amounted to the illegal
practice of unlicensed dentistry.
Overview




• The Supreme Court of the United
States (SCOTUS) is the highest court in
the nation, with authority over all other
U.S. courts.
The Court is made up of eight associated justices and one chief
justice - all nominated to life terms by the president and
confirmed by the Senate.
Once in office, they can only be unseated by resignation,
impeachment, or death (bad behavior removal option never
used on S.C. justice).
Each justice makes $244,400 a year (2014), the chief justice
$255,500, and they receive that same salary into retirement
after fifteen years of service.
Latest on the S.C.
38
Overview
• Of the nine (9) justices currently on the
Supreme Court, five (5) can be regarded
as conservatives and four (4) can be
regarded as liberals.
– Kennedy is sometimes a swing voter
• Lifetime appointment is intended to free
the justices from political pressures, even
from those who nominated them.
– Partisan politics is seen as
inappropriate.
– Direct contact with lobbyists is
outlawed.
– Public opinion is not supposed to sway
decision making.
Chief Justice
Chief Justice
Roberts
John
Roberts
39
Overview
– Every year, the Supreme Court
hears about 100 cases (in
recent years, that number has
dwindled down to about 90
cases per year).
• This is only a small fraction of the
many cases (about 7,000 a year)
filed before it.
• Sometimes, it refuses to get
involved at all in controversy -- a
practice known as judicial restraint,
which is a legal tradition and has
the pragmatic purpose of avoiding
attacks on the judiciary.
Justice Anthony Kennedy
Potential Swing Voter
40
Overview
– The opposite of judicial restraint is judicial
activism -- a term which has many
meanings, but generally refers to an issue
so significant that the Supreme Court
feels it has to assert its supremacy and
change the way policy is being
established by other institutions of
government.
– The Court realizes it can only do so much,
but when it feels it has to deliver a power
punch, it can and will exert power the likes
of which are rarely seen, up to and
including the immediate imprisonment of
government officials.
– See Justice Breyer on judicial activism
and judicial restraint
2009 appointee
Justice Sonia Sotomayor
41
Cases the S.C. Hears
• Cases come before the Supreme Court from a variety of
sources.
– The main route (76% of all cases) is from a Federal Court of
Appeals. These are known as federal "circuit" courts, and
there are twelve federal circuits in the United States.
– The second most common route (14% of all cases) is from a
State Court, usually a State Supreme Court, although the
U.S. Supreme Court can dive down into any state level it
wants to, if it thinks a significant Constitutional issue is
involved.
– The remaining cases come from specialized courts (6%) of
military justice or special federal "district" courts (4%) that
are concerned primarily with voting and election issues.
How A Case Gets to S.C.
• All requests to be heard by the Supreme Court must
be in the form of petition for writ of certiorari (Latin, "to
be informed of") which the Court uses to exercise its
discretion in selecting cases it will review.
• It takes a rule of four - four justices must agree the
case is worth hearing - for a petition to be
accepted. They then announce which cases they will
hear and the deadlines for when briefs have to be
filed.
43
Deciding Cases
• Decisions are made by simple majority,
except when a justice is ill or excuses
him/herself from a case, usually for some
conflict of interest.
– Such self-disqualifications are called a
recusal.
– The most common reasons for recusal
are family stock holdings.
– Kagan’s recusals

A tie vote results in no announcement and no written
opinions.
 All justices are equal in power, the Chief Justice being
mostly a symbolic position which presides over Senate
impeachment hearings, and another justice serving as
45
social secretary.
S.C. Facts
– No television or cameras are allowed in the courtroom. Release
of audiotapes are delayed to avoid same-day newscasts.
– The Supreme Court is only active from around September to
June every year, and tries to hear two cases a day. This is
known as the term of the Supreme Court, and is designated by
the year it begins, the term beginning in October of that year.
– During the term, they hear cases for about two weeks, then take
recesses for about two weeks. Nearly a third of all major
decisions are not announced until the end of the term, in May or
June.
– Attorneys appearing before them only have one half-hour to
make their arguments, and are frequently interrupted by the
justices.
• Hear oral arguments/
The Cost
• The cost of trying a case before the Supreme Court
can easily reach $684,652 (yr. 2014 dollars).
Attorneys charge an average of $550 an hour, and it
takes a lot of preparation.
• If a poor person's case is to be heard, the Court often
arranges an attorney to take the case pro bono (free
of charge; as part of community service).
– Interest groups are major participants in the
process.
47
Weirdness in Opinions
• Because the court can choose which issues of the
case to hear. Not all the issues in a case are
necessarily heard.
– They will limit and direct specific participants to
address specific arguments.
– The Supreme Court is not even bound by the
specific issues in a case; they can turn it into a
landmark decision on whatever they want,
• that is precisely what happened in Mapp v. Ohio (1961)
when they turned an obscenity case into a restriction on
police search and seizure powers.
48
Typical Decision Options
• affirm -- let the lower court's ruling stand
• reverse -- overturn the lower court's ruling
• remand -- send the case back to the lower
court for a new trial
• void or vacate -- has the same meaning as to
reverse the lower court's ruling
A vacated judgment makes a previous legal judgment void. A
vacated judgment is usually the result of the judgment of an
appellate court which overturns, reverses, or sets aside the
judgment of a lower court.
50
Written Opinions
• When the Court decides a case and at least five justices
reach the same conclusion, an opinion is normally written.
– It's not mandatory that the justices write anything, but
they do so over two-thirds of all cases tried.
• an opinion contains two parts -- a justice siding with the majority
can dissent from one part of the majority conclusion -- and a
justice siding with the minority can concur with one part of the
majority conclusion.
– This complexity is known as the practice of concurring
and dissenting opinions. There's no common format that
opinions must follow, and the only rule is that if at least
five justices sign off on an opinion, it's an authoritative
statement by the Court.
Kinds of law
• Constitutional laws
– What concerns the Supreme Court
• Statutory laws
– Legislative laws (laws created by Congress)
• Administrative laws
– Laws written by Executive / Public Administrative
Agencies
• Executive orders
– Force of law, issued by President
53