The Judicial Branch
The Judicial Branch
At 375 words, Article III provides the shortest description
of any of the three branches of government. It reads, in
part:
The judicial Power of the United States, shall be vested in one
supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish. The Judges, both of the
supreme and inferior Courts, shall hold their Offices during good
Behaviour, and shall, at stated Times, receive for their Services, a
Compensation, which shall not be diminished during their
Continuance in Office.
The Court’s most important power—that of judicial
review—is never explicitly mentioned in the Constitution.
The Power of Judicial Review
If this power is not found in the Constitution, where does
it come from? There are two early sources:
Alexander Hamilton’s essay, Federalist #78, makes it
clear that the framers intended the Courts to have
the power of judicial review. He writes that “the
interpretation of the laws is the proper and peculiar
province of the courts.”
Hamilton also calls the judiciary “the least dangerous
branch”
Marbury v. Madison (1803), which asserted (created)
and solidified that power.
Between 1803 and 2009, 162 acts of Congress have
been held unconstitutional in whole or in part
This is the very essence of judicial duty…
“It is emphatically the
duty of the Judicial
Department to say what
the law is,” wrote Chief
Justice John Marshall in
Marbury v. Madison
(1803).
Notice he does not say “sole or exclusive duty”
John Marshall
Authoritativeness of Supreme Court
 Three theories:
 Judiciary final word
 No final interpreter – each branch
considers constitutionality on its
own
 Each branch definitive in its sphere
S.Ct. concludes it is the final arbiter
 Cooper v. Aaron (1958)


States cannot nullify decisions of the federal courts.
Several government officials in southern states, including the
governor and legislature of Alabama, refused to follow the
Supreme Court's Brown v. Board of Education decision. They
argued that the states could nullify federal court decisions if they
felt that the federal courts were violating the Constitution. The
Court unanimously rejected this argument
 City of Boerne v. Flores (1997)

“When the Court has interpreted the Constitution, it has acted within the
province of the Judicial Branch, which embraces the duty to say what the
law is. Marbury v. Madison, 1 Cranch, at 177. When the political
branches of the Government act against the background of a judicial
interpretation of the Constitution already issued, it must be understood
that in later cases and controversies the Court will treat its precedents
with the respect due them under settled principles, including stare
decisis, and contrary expectations must be disappointed.”
Article III Courts
Constitutional Courts
 Supreme Court - One court with national jurisdiction;
 Courts of Appeals – 12 geographic-based and one for the
Federal Circuit (generally patent cases);
 District Courts - 94 in 50 states, District of Columbia, Puerto
Rico, the Virgin Islands, Guam, and the Northern Mariana
Islands.
 Court of International Trade.
 United States Court of Federal Claims
Article III Judges serve during good behavior and
salaries may not be reduced while in office
Circuit Courts of Appeal
Antonin Scalia
(Reagan 1986)
Stephen Breyer
(Clinton 1994)
Samuel Alito
(G.W. Bush 2006)
Anthony Kennedy
(Reagan 1988)
Clarence Thomas
(G.H.W. Bush 1991)
John Roberts (G.W.
Bush 2005)
Ruth Bader Ginsburg
(Clinton 1993)
Sonia Sotomayor
(Obama 2009)
Elena Kagen
Obama 2010)
Special Federal Courts Created by
Congress
 Magistrate judges: These judges handle certain criminal and

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
civil matters, often with the consent of the parties.
Bankruptcy courts: These courts handle cases arising under the
Bankruptcy Code.
U.S. Court of Military Appeals: This court is the final appellate
court for cases arising under the Uniform Code of Military
Justice.
U.S.Tax Court: This court handles cases arising over alleged tax
deficiencies.
U.S. Court ofVeterans' Appeals: This court handles certain
cases arising from the denial of veterans' benefits.
2011 Federal Judicial Pay
 Chief Justice, Supreme Court: $223,500
 Associate Justice Supreme Court: $213,900
 Circuit Court Judge: $175,300
 District Court Judge: $174,000
U.S. Senator & U.S. Representative: $174,000
Supreme Court Workload
 Most cases come to the Supreme Court on Petitions for Writs of
Certiorari (from the Latin "to be informed")
 Judiciary Act of 1925 (also known as the Judge’s Bill) made the
overwhelming bulk of Supreme Court caseload discretionary
 To be accepted, a “Cert” petition needs only 4 Justices to vote
yes (“The Rule of Four”)
Certiorari
"Whether or not to vote to grant certiorari
strikes me as a rather subjective decision, made
up in part of intuition and in part of legal
judgment. One factor that plays a large part
with every member of the Court is whether the
case sought to be reviewed has been decided
differently from a very similar case coming from
another lower court: If it has, its chances for
being reviewed are much greater than if it
hasn't."
o Chief Justice Rehnquist
Supreme Court Workload
 Term runs from first Monday in October to June of following
year
 During the 2010 Term, 86 cases were argued and 83 were
disposed of in 77 signed opinions (slightly up from the previous
term)
 That out of a total 7,857 filings (most of which were in forma
pauperis petitions (6,299))
 Paid filing actually decreased by 1.5%
2011 Year-End Report on the Federal
Judiciary
Process in Supreme Court
 Briefs
 Parties: petitioner and respondent
 amicus curiae (“friend of the court”)
 Solicitor General (argues cases on behalf of the U.S.)
 Oral arguments
 Initial vote on the merits and opinion assignment
 Opinion drafted and circulated
 dissenting or concurring opinions
Getting into Federal Court
 Federal Courts are courts of limited jurisdiction
 That is, there are only certain cases the courts may decide AND
there are cases that the courts technically may decide, but
determine not to.
 Federal courts can hear “cases and controversies”
“arising under the Constitution, the laws of the United
States, and treaties” (federal-question cases) and cases
between citizens of different states (diversity cases).
 Original jurisdiction vs. Appellate jurisdiction
Justiciability Issues: Textual (found in the text
of Constitution)

“Case or controversy” requirement
Judges decide only real cases---No advisory opinions
② Standing: guidelines

Personal harm must be demonstrated
①




Sierra Club v. Morton (1972) relaxed standard—“enjoyment of
the environment”
Lujan v. Defenders of Wildlife (1992) shift in analysis with shift
in court – more required than the Sierra Club standard.
o “a litigant must show that it has suffered a concrete and
particularized injury that is either actual or imminent, that the
injury is fairly traceable to the defendant, and that a favorable
decision will likely redress that injury.”
Most recent: Hein v. Freedom from Religion Foundation (2007) (taxpayer
may not challenge under Establishment Clause expenditures by the
Executive from general funds allocated to Executive branch by
Congress
Arizona Christian School Tuition OrganizationV.Winn (2011) (taxpayer
cannot challenge under Establishment Clause program of tax credits
for religious purposes rather than expenditures
Justiciability Issues
Textual
③
Mootness: will not decide cases when the question will
have no impact on the parties

④
Exception: where nature of the issue is such that
judicial review will likely never occur if standard
mootness rules applied; e.g. Roe v.Wade:
Adequate and Independent State-law basis for
the decision
Justiciability Issues
Prudential
 Political Question Doctrine
 Where the issue before the court has been textually committed to
another branch of government
 Powell v. McCormick (1969)—refusal to seat a congressman because he
acted “unethically” is not textually committed to Congress under
Article I
 Nixon v. U.S. (1992) – refused to decide the scope of the power of the
Senate to “try” impeachment charges (federal judge)
 Where there is a lack of judicially manageable standards to
decide the case on the merits

Baker v. Carr– apportionment– SC battle over manageable standards
 Foreign policy/national security
Getting into Federal Court
 General Deterrents
 Costs are very high
 But these can be lowered
In forma pauperis: plaintiff heard as pauper, with costs paid by the
government
 Payment by interest groups who have something to gain (American Civil
Liberties Union)

 Each party must pay its own way: the “American Rule”
 Losing party will pay (fee shifting) only by statute (such as Section
1983 suits and only defendants) or by contract (plaintiff or
defendant):
Constitutional Interpretation
“[i]t is a constitution we are expounding. . . [A]
constitution, intended to endure for the ages to come, and
consequently, to be adapted to the various crises of human
affairs.” Marbury v. Madison
 Originalism
 Pragmatism
Originalism
 Original Meaning – Constitution to be interpreted with
reference to the meaning of the words in the world of the
founders
 "Oh, how I hate the phrase we have—a 'living document.‘ "We
now have a Constitution that means whatever we want it to mean.
The Constitution is not a living organism, for Pete's sake."
o Justice Antonin Scalia
Pragmatism
 Attempts to solve a current problem by placing that problem
within the organized whole of past interpretations of the
Constitution as they relate to specific problems
 Significant reliance on the doctrine of stare decisis (“let the decision
stand”)
 Lessens significance of the text itself; giving near-
constitutional significance to commentary on the text
Pragmatism
 A non-originalist who gives substantial weight to
judicial precedent or the consequences of alternative
interpretations, so as to sometimes favor a decision
"wrong" on originalist terms because it promotes
stability or in some other way promotes the public good.
Checks on judicial power
 Selecting judges
 Party background has some effect on judicial behavior
but ideology does not determine behavior

Justice Souter
 “Senatorial courtesy”
 Protocol, recently ignored, that judges to fill a vacancy in a U.S.
District Court should have the approval of the state's senators
 The “litmus test”
 Concern this may downplay professional qualifications
 Greatest effect on Supreme Court
Checks on judicial power
 Congress and the courts
 Confirmation and
impeachment proceedings
alter the composition of the
courts


Only 11 nominees have been
rejected by the full Senate (last in
1987—Robert Bork)
Impeachment power most often
used against federal judges
Checks on judicial power
 Congress and the courts
 Changing the number of judges (1866 reduce number
to 7 so that Pres. Johnson could not make
appointments)
 Altering jurisdiction of the courts and restricting
remedies
 E.g. Military Commissions Act (MCA) of 2006
 Revising legislation declared unconstitutional
 But see City of Boerne v. Flores
 Constitutional amendment (e.g.11th Amendment, 14th
Amendment and 16th Amendment)
Judicial Policymaking
 Each time a court reaches a judgment on a case
involving a federal question, it makes policy. This
can occur when:
 Judges interpret prior judicial decisions (common, or
judge-made law)
 Judges interpret legislation– statutory construction
 Judges interpret the Constitution
BUSH V. GORE
&
CITIZENS UNITED V. FEC
Public perception of the Supreme Court
Pending Health Care Law Cases
Should the Supreme Court Justices be subject to
conflict of interest rules?