The Federal Judiciary
Guideline Questions, pages 479 – 496
1. Explain the “typical” demographics of a federal judge/justice. These traits are slowly changing—
how? Why?
a. Typical—white males, lawyers, Protestants, 50s/60s on Supreme Court when
nominated, from upper middle to upper class
b. Presidents nominate people from their own party 90% of the time
c. Changing to more women and minorities—largely due to fact that more are in the legal
profession than ever before and the fact that their political clout is increasing—both as
voters and being in legal profession
2. How do Presidents and their staff find potential candidates who share the President’s political
ideology? (keeping in mind that prospective candidates cannot be asked hypothetical legal
scenarios and how they would rule)
a. Look at and study previous judicial decisions—if they exist—why prefer to nominate
people who have sat on the bench at some level
b. Look at their speeches and writings
c. At times those sitting on bench will play the waiting game when to retire—especially on
the Supreme Court—waiting for a more favorably disposed President to be in office to
match their ideologies
3. Describe an example of when a President was disappointed because his nominee to the
Supreme Court did not turn out as he expected.
a. Usually Presidents are pleased with their own nominations but exceptions do exist
b. Eisenhower, conservative Republican, nominated Earl Warren who turned out to be one
of the MOST liberal justices in modern history
c. Nixon and his nomination of Warren Burger—did make some conservative decisions but
also Chief Justice when he ruled school busing constitutional (went against Nixon’s
“southern strategy”), as well as US v. Nixon, ordering Watergate tapes to be turned over
to Congress
d. Reagan nominated Sandra Day O’Connor—often the swing vote in liberal/conservative
rulings—she often found issues dealing with abortion to be constitutional upholding a
woman’s right to choose
4. In your opinion, are party affiliation and personal characteristics good predictors of judicial
behavior?
a. Often one can tell by a person’s background how they might rule
b. However, often are looking at the Constitution and interpreting the law as they see it
c. Certain legal and “extralegal” factors may play in to how a judge/justice rules
d. Clarence Thomas—only African American on the Court—very conservative!
5. Identify and explain the significance of
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a. “rule of four”—when 4 of the 9 justices agree to hear the oral argument of a case—only
agree to hear about 1% of all cases sent to them; significant because means case will go
before the Supreme Court
b. Writ of certiorari—granted by the Court; formal document calling up the case from the
lower court; significant because officially puts case on its course to be heard before a
higher court
The Supreme Court only agrees to “hear” approximately 1% about 80 cases/year) of those cases
that come before them—specifically what types of cases are heard by today’s Court?
a. Prior to 1988—almost “automatic” any of the following types of cases would be heard
by the US Supreme Court—today Court has tremendous amount of discretion
i. Federal law found unconstitutional
ii. When federal court ruled that a state law violated the US Constitution
iii. When state courts upheld a state law that others argue violates the US
Constitution or a federal law
b. 1988 to present, most likely Court will hear
i. Cases dealing with a major issue—most likely dealing with civil liberties
ii. Conflict within lower courts and their interpretation of a federal law—for
example affirmative action and 5th and 9th Circuit Courts of Appeal
iii. Disagreement between a majority of the Supreme Court and lower court
decisions
Who is the Solicitor General of the United States? What are the 4 primary functions he/she is
responsible for carrying out?
a. Presidential appointee who is the 3rd ranking member of the DOJ
b. 4 key jobs
i. Deciding whether to appeal a case lost in a lower federal court
ii. Revising or modifying briefs used in government appeals
iii. Represent government before the US Supreme Court
iv. Submit amicus curiae briefs for the US
Identify per curiam decisions.
a. Cases that are decided in order to resolve the issue
b. No explanation/written opinions are given
c. No precedent established because no explanation given
d. Approximately 2 dozen of these are decided by the Supreme Court/year
Explain the difference between each of the following
a. Majority opinion
i. Statement of legal reasoning behind decision of the Court,
ii. the majority of the membership’s vote
iii. it is this argument that is used to establish precedent and used in future cases
that arise
iv. Written by Chief Justice, if he is in the majority, or by his designee (other justice)
b. Dissenting opinion
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i. Statement of legal reasoning behind those who disagreed with the decision of
the Court
ii. Can also be used in the future to argue against established precedent
c. Concurring opinion
i. Written by justice who is in the majority; agrees with Court’s vote
ii. Argument is different than that expressed in majority opinion
d. OPINIONS
i. can be as important if not more important than the vote itself
ii. these legal arguments are what judges/justices look to in the future to
determine how to rule in similar cases
iii. how these are written and what they say can persuade others to vote with the
majority or to vote with the dissenting side (at times making it the majority)
during the conferencing of the justices—BEFORE the final ruling is announced
iv. opinions may have to be redrafted several times in order to get the vote needed
If there is a tie among the justices on the Supreme Court, how is the decision handled?
a. Can have a tie if a justice is ill or has to recuse himself from the case, lowering total to 8
b. If a tie occurs, then the decision of the lower court prevails
Precedent is established if what occurs? What is the significance of establishing precedent?
a. 5 justices vote the same way AND for the same reason
b. Precedent established the “ground rules” for how future cases that are similar will be
decided—important to the Court to be consistent in its rulings
c. Precedent will be used by lower federal courts as well
Identify stare decisis—why is it significant?
a. Means “let the decision stand”
b. Most cases that reach the appellate level are decided this way—meaning that decisions
of lower courts are NOT overturned; respect for the decisions reached by lower court
judges
c. Use cases as precedent
Cite an example of the Supreme Court overturning its own precedent—in other words what
major Supreme Court case overturned another major case?
a. Brown v. Board of Education (1954)—ruled that “separate but equal” was
unconstitutional
b. Overturned Plessy v. Ferguson (1896) which had ruled that “separate but equal” was
constitutional
Why do Constitutional phrases like “due process of law” and “equal protection under the law”
leave room for justices to disagree with their own colleagues in interpreting the Constitution?
a. These phrases are vague—often left to individuals’ interpretations of what these
mean—individuals are guided by their own values when deciding what they mean
b. Ambiguity of phrases give justices leeway to dissent from others
c. Only 1/3 of all cases are decided with a unanimous vote
Identify judicial implementation.
a. “John Marshall has made his decision, now let him enforce it.” Andrew Jackson
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b. Courts rely on other units of government to implement their decisions
c. How and whether court decisions are carried out into policy, thus affecting others
d. Judicial decision is the end of the litigation phase—often followed by
delays/stalling/roadblocks before actually implemented
e. President and Congress can often help/hinder judicial implementation
Explain the three elements of judicial implementation.
a. Interpreting population
i. Judges/lawyers
ii. Must correctly understand/reflect upon the original decision
b. Implementing population
i. Those who actually see that the decision/policy is carried out
ii. Many of whom disagree with one another or the policy—leading to “slippage”
c. Consumer population
i. Those most directly impacted/involved by decision/policy
Identify original intent.
a. Equal to what the Framers originally intended within the Constitution; how the law was
meant to be carried out or what it meant
b. Those who adhere to original intent are called “strict constructionists”
Cite 3 arguments for strict constructionism
a. What the Framers wanted is tantamount to all else
b. Necessary to preserve what the Framers wanted
c. Consistent with democracy—judges should only interpret the laws—they are NOT
elected officials and should go no further than what the Framers wanted
Cite 3 arguments for judicial discretion/loose constructionism.
a. Those who argue that interpretation of Constitution needs to be applied to present day;
modernized
b. Argue judges will and should differ in different times/places
c. Who knows what the Framers really wanted—there is not record; not clear
d. Many current issues are way beyond what the Framers could even imagine—i.e. issues
with computers; abortion; wiretaps etc.
e. Argue Framers endorsed general principles NOT specific solutions
f. Argue who were the actual Framers—those who wrote Constitution? Ratifiers? Those
involved with amendments?
What was the Supreme Court primarily focused on
a. From the nation’s beginning up until the Civil War
i. Slavery
ii. Legitimacy of federal government
iii. Supremacy of federal government
b. The Civil War to 1937
i. Relationship between the government and the economy
ii. Court ruled in favor of business v. federal government; less government
involvement
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c. 1938 to the present
i. Personal liberty
ii. Social and economic equality
Identify
a. Marbury v. Madison (1803)
i. “midnight appointments”
ii. Court cleverly ruled part of Judiciary Act of 1789 to be unconstitutional,
appearing to make themselves weaker—in actuality increased their power of
judicial review
b. Judicial review—ability to decide on constitutionality of a law/act
Explain FDR and the “nine old men”-- court packing scandal.
a. Many New Deal laws declared unconstitutional by Court
b. FDR suggested Congress up number to 15—one justice over every one over 70
c. Accused of trying to “pack the court”
d. “a switch in time, saves nine”—2 justices started to change how they voted, so Congress
not forced to make a decision
Identify 4 decisions/policymaking of the Warren Court.
a. School segregation unconstitutional (Brown)
b. Increased rights for criminal defendants—right to counsel, protection from
unreasonable search and seizure
c. “one person, one vote”
d. Prohibited organized prayer in school
Warren Burger was nominated by President Nixon but Burger did not prove to be the
conservative justice Nixon had hoped for—cite two reasons why this was the case.
a. Roe v. Wade decided—woman’s right to choose
b. Upheld affirmative action
c. Allowed school busing
d. US v. Nixon (1974)—White House ordered to turn over Watergate tapes, leading to
Nixon’s resignation
Identify the facts of the case and the significance in the ruling of
a. US v. Nixon (see above)
b. Bush v. Gore –
i. Court ruled recount in Florida was to stop
ii. 2000 Presidential election
iii. divided along partisan lines
iv. example of judicial activism
Explain why the Supreme Court is not as “insulated” from public opinion as the Framers
intended.
a. Not the “marble palace” some have used to describe them
b. Interest groups
i. bring cases (litigation)
ii. use amicus curiae in order to get rulings on certain issues—to try and create
policy to their liking
iii. spearhead the use of ads and mass mailings to influence public; establish and
atmosphere regarding an issue
c. awareness of issues becomes part of judges/justices’ consciousness
d. pluralism (many groups, many individuals involved)
i. litigation to accomplish policy
ii. policy decisions end up in court
iii. courts seen as last resort because of policy delay, deadlock and inconsistency
with other two branches
27. Compare/contrast: judicial restraint with judicial activism.
a. Judicial restraint
i. Judges should adhere to precedent
ii. Minimal policymaking
iii. Policymaking should be left to legislators
iv. Judges are not elected
b. Judicial activism
i. Able to make bolder policy decisions
ii. Pave new Constitutional ground
iii. Help those most in need—those who are the weakest politically and
economically
iv. Activist courts can be overturned/controlled
1. President/Senate determine who sits on the bench
2. Congress can start amendment process
3. Congress can restructure federal court system/or its jurisdiction—
drastic measure
4. Congress passes laws with detailed language—thus constraining Court’s
interpretation
5. Statutory construction
a. Court interprets act of Congress
b. Congress passes laws that clarify existing laws thus
“overturning” Court’s ruling
28. Why are judicial activism and judicial restraint not synonymous with a liberal court and a
conservative court?
a. Can be practicing judicial activism but still be creating conservative policy—for example
Rehnquist Court , Bush v. Gore AND Supreme Court of 1930s that declared New Deal
policy unconstitutional
b. Can be practicing judicial activism and be liberal—Warren Court
29. Identify political question. How is this used by the Supreme Court to avoid hearing certain
cases?
a. Political question:
i. belief the issue is one between the executive and Congress
ii. does not have to be settled by the courts
iii. best example: War Powers Act
b. Supreme Court will cite an issue to be a “political question”—hence not something they
need to or want to handle
30. Explain three other ways the Supreme Court uses to avoid hearing specific cases.
a. Cite issues of jurisdiction
b. Issue is moot—is there actually a controversy?
c. Issue of standing
d. Other grounds exist to justify action besides the Constitution
e. The case is not “ripe” enough—has not evolved enough to reach a decision