The Judicial
Branch
“The Least Dangerous Branch”
-- Alexander Hamilton, Federalist
78
The Court
• Article III of the Constitution establishes:
– a Supreme Court in which the judicial power of
the United States is vested
– life tenure for judges (WHY?)
– judges receive compensation that cannot be
diminished during their service
– the original jurisdiction of the Supreme Court:
disputes between States, States and foreign
nations, cases involving foreign diplomats
• NO ENUMERATED POWERS LISTED!
The Court under John Marshall
(the Marshall Court)
• Marbury v. Madison (1803)
– Marshall defined the role of the Court 
Judicial Review
• Safeguard the Constitution
• Judicial Review
– Power to decide if a law or other legal issue
contravenes the Constitution, and overturn it.
– Not mentioned in the Constitution.
– Marbury's long-term effect has been to allow
the Court to have the final say in what the
Constitution means.
Court Structure
• Article III, Section 1
– Power given to CONGRESS to establish
lower courts
•Judiciary Act of 1789 
•established the framework for the American legal system
Three-tiered system (State and Federal):
Trial Courts
Appellate Courts
Supreme Court
Structure of the Judicial Branch
Three
tiered
system
The
Supreme
Court
12 Appellate Courts
Kansas S. Court
94 US
District
Courts
State Appeals
Court
District Courts
Municipal Courts
Federal Judge Selection Process
• The selection of judges is usually a very
political process.
• Judges are nominated by the president and
confirmed by the Senate.
• Often presidents solicit suggestions from
members of the House of Representatives,
Senators, their political party, and others.
• Provides president opportunity to put
philosophical stamp on federal courts
Who are Federal Judges?
Typically federal judges have:
– held previous political office such as
prosecutor or state court judge
– prior judicial experience
– traditionally been mostly white males
– been lawyers
Nomination Criteria
 NO constitutional
requirements/quali
fications
(behavior)
 Competence
 Ideology/Policy
Preferences
 Pursuit of Political
Support
 Religion
 Race and gender
Sonia Sotomayor
Ruth Bader Ginsburg
Stephen G. Breyer
Samuel A. Alito
Anthony M. Kennedy
Clarence Thomas
John Paul Stevens
Antonin G. Scalia
Chief Justice John G. Roberts
Elena Kagan
John G. Roberts - Chief Justice
Appointed by: President George W. Bush
Appointed in: 2005
Age When Appointed: 50
Samuel A. Alito, Jr.
Appointed by: President George W. Bush
Appointed in: 2006
Age When Appointed: 55
Antonin Scalia
Appointed by: President Reagan
Appointed in: 1986
Age When Appointed: 50
Elena Kagan
Appointed by: President Obama
Appointed in: 2010
Age When Appointed: 50
Ruth Bader Ginsburg
Appointed by: President Clinton
Appointed in: 1993
Age When Appointed: 60
Stephen Breyer
Appointed by: President Clinton
Appointed in: 1994
Age When Appointed: 56
Clarence Thomas
Sonia Sotomayor
Appointed by: President George H. W. Bush
Appointed by: President Obama
Appointed in: 1991
Appointed in: 2009
Age When Appointed: 43
Age When Appointed: 55
Anthony Kennedy
Appointed by: President Reagan
Appointed in: 1988
Age When Appointed: 52
How Cases Reach the Supreme
Court
• Constitutional Issue
• Between states
• Citizens of different states
• Writ of Certiorari issued to lower courts
• “Discuss List” created by justices
• “Rule of Four”
– 4 justices must agree to hear the case
How Supreme Court
Decisions are Made
Case on the Docket
Approx 95
Justices Conference
Cases discussed
Votes taken
Opinion Assigned
Briefs and Amicus
Curie
Briefs submitted
Opinions Drafted
and Circulated
Oral Argument
Opinions Announced
Decisions
• Majority Opinion
• Dissenting Opinion
• Concurring Opinion
• Precedent/Stare decisis
How the Justices Vote
Extra-Legal Factors
• Behavioral Characteristics
– The personal experiences of the justices often affect
how they vote. Early poverty, job experience, friends and
relatives all affect how decisions are made.
• Ideology
– Ideological beliefs influence justices' voting patterns.
• Public Opinion
– Justices do watch TV, read newspapers, and go to the
store like everyone else. They are not insulated from
public opinion and are probably swayed by it some of the
time.
• Judicial Restraint/ Strict
Constructionist
• Those who advocate judicial
restraint believe the courts should
uphold all acts of Congress and state
legislatures unless they clearly
violate a specific section of the
Constitution.
• In practicing judicial restraint,
the courts should defer to the
constitutional interpretations of
Congress, the President, and others
whenever possible. The courts
should hesitate to use judicial review
to promote new ideas or policy
preferences. In short, the courts
should interpret the law and not
intervene in policy-making.
•
Judicial Activism/ Loose
Constructionist
•
According to the idea of judicial
activism, judges should use their
powers to correct injustices,
especially when the other branches
of government do not act to do so.
In short, the courts should play an
active role in shaping social policy
on such issues as civil rights,
protection of individual rights,
political unfairness, and public
morality.
•
Chief Justice Earl Warren (who
served from 1954 to 1969)
practiced judicial activism when he
boldly used the Constitution to
make sweeping social changes
promoting such policies as school
desegregation and to insure that all
Americans had the opportunity to
vote and to participate in U.S.
society