The Judicial Branch
The Federal and State Courts
How Many Justices? (9)
Justice Oliver Wendel Holmes retired
at 91
Justice Stevens just retired at 90
Justices are appointed for life during
good behavior
• Process:
• The President nominated the Justices
• The Senate Judiciary committee holds a
confirmation hearing. It can vote to
recommend or reject the nominee
• The full Senate votes to confirm or reject if the
committee recommends the Justice for a vote.
• Senate responsibility is Advice and Consent
The Judiciary
Sources of American Law
• 1) The Anglo American Common Law.
• 2) The U.S. and State Constitutions
• 3) Congressional Statutes
Some Distinctions
• 1) Anglo American Common Law is different
from the Continental Civil Law
• 2) Civil case and criminal cases
How do cases get to the Supreme
Court?
• 1) Original Jurisdiction (3%)
• 2) Appeal (97%)
Do we have the right to appeal to the
Supreme Court???
1. Yes, it is our civil
right as Americans
2. NO, the Court
controls its docket
50%
50%
1
2
APPEALS
• 10,000 cased are appealed to the Supreme
Court only 70-120 cased are decided every
year.
• There are 2 kinds of appeals
• Writ of appeal (automatic appeal the court
has no choice but take the case.
• Writ of Certiorari-the Court decides if to take
the appeal or not.
Most cases are certiorari
Rule of 4. 4 Justices out of 9 need to vote in a
committee to hear a case. (not a majority).
What are the chances for a case to be
heard?
• 1) If it is a major constitutional philosophical
question. (like segregation).
• 2) If two or more circuit courts of appeal
disagree and the court needs to make one law
for the whole country.
• 3) If several state supreme courts disagree
over major issues and the US Supreme Court
needs to develop national law.
Deciding to decide
• 1) The rule of 4. 4 out of 9 justices must vote
to agree to hear a case
• 2) The rule of 5. In order to win the case 5/9
justices must vote.
• Decision is the majority opinion. It is the law
of the land. Like legislation, a Supreme Court
Decision is the law.
• The minority opinion (those who lost) called
“Dissent”. What is the purpose of dissent.?
Appeals
• The typical federal case would start with the
Federal district court- a court of original
jurisdiction.
Criminal cases: There will be a grand jury that
would take testimony and decide if there is
enough evidence for a trial (indictment).
In the actual trial there will be a jury and a 3
judges panel that would decide the case
Trial results
• A unanimous jury can deliver a guilty verdict.
• The threshold test is “beyond a reasonable
doubt”
• In a civil trial, there is no guilty or not guilty
verdict. The verdict is Liable or not liable.
• In case of liability, the threshold is by
“preponderance of the evidence”. It requires
less than a unanimous verdict.
What is the difference?
• Preponderance means majority or controlling.
Thus, liability does not have to be proven. It is
just most likely.
• Beyond reasonable doubt is not the same as
beyond any doubts. Circumstantial evidence
that do not have a direct witness are okay too.
Appeal
• If you are granted an appeal, it can be on one of
two philosophical evidence:
• 1) There was a violation of procedural due
process: (4th,5th, 6th,7th) amendments.
• It means that the trial was not fair.
• 2) There was a violation of substantive due
process: It means that the law was not fair.
• The appeal process does not question the verdict
of the jury or finding of facts. It is mostly
philosophical.
appeal
Federal District
court
Federal appeals
court 3 judge
panel
Federal appeals
court district of
Colombia
United States
Supreme Court
Federal appeals
court En-Bunc
Appeal from the states
State Supreme
Court
Federal
Appeals Court
District of
Colombia
appeals court
U.S Supreme
Court
En-Banc
Judicial Politics
•
•
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•
•
President nominates Judges and Justices:
To the Federal Supreme Court
To All 14 appeals courts
To All 94 Federal Districts Courts
All together more than 1000 judges.
But they have a life tenure so Presidents only
appoints judges to open positions.
Judicial Politics
• Senatorial Courtesy.
• Geographic balance
• Ethnic balance ( Catholic, Black, Jewish, Latin
Seat)
• Gender Balance ( How many women?)
• Ideological balance ( conservative, liberal,
originalist)
Judicial politics
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•
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•
Confirmation hearing:
The role of Special Interests:
The ABA American Bar Association
Rating: well qualified, qualified, Unqualified
Special Interest groups
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NAACP
MALDEF
NOW
LABOR UNIONS
People with disability
Gay organizations
Interested parties
Congress-Courts
• Congress controls the size of the Supreme
Court and all the federal courts. (How many
judges, how many courts.
• Congress controls the salary of judges.
• Congress can overturn courts decision by
statute or by amendments.
• The Senate can reject presidential
nominations
Jurisprudence
• Jurisprudence is the philosophy and/or
ideology which the judges apply when they
make a decision. ( you thought they were
impartial or fair, ha ha ha ha ha ha )
Types of Jurisprudence
• Judicial activism: The Constitution is a living
document. Every generation can interpret it to
make sense for current needs and social
changes.
• Judicial restraint: It is Congress’s job to make
public policies. Judges should avoid judicial
review. They should apply the law and not
make law. ( don’t second guess Congress and
don’t declare laws unconstitutional.
Continue:
• Original intent: Originalists are very
conservative. They believe that the
Constitution is an original contract from 200
years ago and must be faithfully interpreted
based on the original intent of the founding
fathers.
• Judicial minimalism: Judges should make
decisions Narrow and Shallow. (no big
decisions)
Continue
• Historical vs Sociological jurisprudence
• Historical: Judges should only rely on previous
cases: Stare Decisis- let the decision stand.
Based on Precedent. ( So Plessy v. Fergusson
was the precedent and should stay)
• Sociological jurisprudence: Judges should
based decision based on social science
evidence ( like the doll experiment)
Jurisdiction
• The right of Judges to make decision. What is
the extent of judges authority?
• Justices except cased the fall under the US
Constitution and federal laws. However, there
are limits:
• 11th amendment, the Political question
doctrine, judicial review, foreign policy.
Myths:
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•
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The Surprised President
Independent Supreme Court
The defenders of minorities
The powerful Supreme Court
State Supreme Courts: each state has
multi-level court system
State
supreme
Court
State appeals
Court
Superior courts
Municipal Courts
Other restrictions on Courts
• The power of courts is passive: Courts can not
invite cases. They have to wait for cases.
• Courts can not accept cases born of Collusion.
When it’s a fake case if both sides are on the
same side.
• Courts can not take theoretical cases. There
must be real victims and real parties for the
case. They will not review a law until
somebody actually broke the law.
• The END