The Judiciary
Roots of the Federal Judiciary
• not much time spent on Article III
• Framers saw little threat of tyranny by
judiciary
• life tenure for federal judges
• checks and balances
• Constitution was silent on judicial review
• judicial review: power of the courts to
review acts of other branches of
government and the states
The Judiciary Act of 1789
• Congress spent entire second half of its
first session deliberating Judiciary Act
• Judiciary Act of 1789: Established the
basic three-tiered structure of the federal
court system
The Marshall Court: Marbury v.
Madison (1803) and Judicial Review
• Authority of the Court was unsettled question
• Marbury v. Madison (1803): Case in which the
Supreme Court first asserted the power of
judicial review by finding that the congressional
statute extending the Court's original jurisdiction
was unconstitutional
• brilliant move: initially denied power to the Court,
but established implied power of judicial review
• Let’s take a look at the facts.
The American Legal System
• Dual system: federal courts and state
courts
• Pyramid: trial courts, appellate courts,
court of last resort
• trial court: Court of original jurisdiction
where cases begin
• appellate court: Court that generally
reviews only findings of law made by lower
courts
Jurisdiction
• jurisdiction: Authority vested in a particular
court to hear and decide the issues on any
particular case
• original jurisdiction: The jurisdiction of courts
that hear a case first, usually in a trial. These
courts determine the facts of a case
• appellate jurisdiction: The power vested in
particular courts to review and/or revise the
decision of a lower court
Criminal and Civil Law
• criminal law: Codes of behavior related to the
protection of property and individual safety
• Society is the victim, so the government
prosecutes on behalf of injured party
• civil law: Codes of behavior related to business
and contractual relationships between groups
and individuals
• No threat to society, so injured party must take
action against other party
• Four elements in each case: plaintiff, defendant,
judge, jury
The Federal Court System
• district courts, courts of appeals and the
Supreme Court
• constitutional courts: Federal courts
specifically created by the U.S.Constitution
or by Congress pursuant to its authority in
Article III.
• legislative courts: Courts established by
Congress for specialized purposes, such
as the Court of Military Appeals
District Courts
• federal trial courts of original jurisdiction
• 94 federal district courts
• hear three types of cases
– federal government is a party
– federal question based on a claim under the
Constitution, a treaty or a federal statute
– civil suits in which citizens from different
states and amount more than $75,000
The Courts of Appeals
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intermediate appellate courts in the federal system
no original jurisdiction
no automatic right of appeal after decision
brief: A document containing the legal written arguments
in a case filed with a court by a party prior to a hearing or
trial
• precedent: A prior judicial decision that serves as a rule
for settling subsequent cases of a similar nature
• stare decisis: In court rulings, a reliance on past
decisions or precedents to formulate decisions in new
cases
The Supreme Court
• reviews cases from U.S. courts of appeals
and state supreme courts
• final interpreter of the U.S. Constitution
• eight associate justices and one chief
justice (since 1869)
• Constitution silent on number of justices
How Federal Court Judges Are
Selected
• political process
• nominated by President and confirmed by the
U.S. Senate
• put philosophical stamp on court system
• from nominating President’s party
• senatorial courtesy: Process by which presidents
generally defer selection of district court judges
to the choice of senators of their own party who
represent the state where the vacancy occurs
Who Are Federal Judges?
• most have held political office
• increasing number have judicial
experience
Appointments to the U.S.
Supreme Court
• importance means greater opposition to
nominations
Nomination Criteria
• Competence
– at least some judicial or governmental experience
• Ideology or Policy Preferences
– nominees should share President’s policy preferences
• Rewards
– friends and party members
• Pursuit of Political Support from Various Groups
– campaign promises (ex. Reagan, Sandra Day O’Connor)
• Religion
– Protestant, Catholic, Jewish
• Race, Ethnicity, and Gender
– Few minorities or women have served
The Supreme Court Confirmation
Process
• Investigation
– FBI background check
– Senate Judiciary Committee investigation
• Lobbying By Interest Groups
– greater involvement of interest groups in the process
• The Senate Judiciary Committee Hearings and
Senate Vote
– Committee recommends to full Senate
– Simple majority vote
The Supreme Court Today
• widespread lack of interest in the court
system
• Court tradition of privacy and tradition
• No televised proceedings
Deciding to Hear a Case
• 2007-2008 9,600 cases filed, 75 heard, 74
decisions
– important issues of law or substantial federal question
• Writs of Certiorari and the Rule of Four
– writ of certiorari: A request for the Court to order up
the records from a lower court to review the case
– Rule of Four: At least four justices of the Supreme
Court must vote to consider a case before it can be
heard
• The Role of Clerks
– first pass of petitions
– young and ideological
How Does a Case Survive the
Process?
• The Federal Government
– Court accepts 70-80% of cases in which U.S. government is
petitioning party
– solicitor general: The fourth-ranking member of the Department
of Justice, responsible for handling all appeals on behalf of the
U.S. government to the Supreme Court.
– amicus curiae: "Friend of the court"; amici may file briefs or
even appear to argue their interests orally before the court
• Conflict Among the Courts of Appeals
– Court desires consistency in the system
• Interest Group Participation
– the more briefs filed, the better the chance the Court will take
case
Hearing and Deciding the Case
• Oral Arguments
– steeped in tradition, 10 AM start time
• The Conference and the Vote
– closed door session, conference vote
• Writing Opinions
– written opinion gives legal reasoning
– serves as precedent
Judicial Philosophy, Original
Intent, and Ideology
• judicial restraint: (a philosophy that) courts
should allow the decisions of other branches of
government to stand, even when they offend a
judge's own sense of principles
• strict constructionist: An approach to
constitutional interpretation that emphasizes the
Framers' original intentions
• judicial activism: A philosophy of judicial
decision making that argues judges should use
their power broadly to further justice, especially
in the areas of equality and personal liberty
Models of Judicial Decision
Making
• Behavioral Characteristics
– social background of justices affect decisions
• The Attitudinal Model
– policy preferences (party, liberal versus conservative)
• The Strategic Model
– chance of loss, needs of the court
• Public Opinion
– could be swayed by public opinion on some issues
Toward Reform: Power, Policy
Making, and the Court
• Policy Making
– declare federal laws unconstitutional
– overrule itself
• Implementing Court Decisions
– courts must rely on other units of government
to carry out their decisions
– judicial implementation: How and whether
judicial decision are translated into actual
public policies affecting more than the
immediate parties to a lawsuit