Chapter 14
THE COURTS
Newman Essay
 Explain
the role of the courts in the
policymaking process. How do they
influence the policymaking process?
Exceeds expectations
Meet expectations
Does NOT meet expectation
Student addresses 5-7 of these points
student addresses 3-4 of these points
student addresses fewer than 3 of these points
2
Numerous examples are possible and desirable. Some of the key examples
include:
 PRECEDENT!





•
Decisions are often affected by the political positions of judges and
Supreme Court Justices. In fact, over 92% of federal judges are not only of
the nominating president’s political party, but frequently possess the same
ideology as the president selecting them.
•
Judicial biases can reflect themselves in vital political decisions as
occurred in 2000 when the Democratic-dominated Florida Supreme Court
made decisions favorable to Gore and the Republican-dominated U.S.
Supreme Court decided for Bush.
•
Human rights issues are also subject to judicial interpretation as
occurred when Plessy v. Ferguson established “separate, but equal” as the
standard, but Brown v. Board of Education relied on the 14th Amendment
provision of equal protection to overturn the Plessy decision.
•
In McCulloch v. Md. The Court firmly established that under Article
VI a state could not tax an entity of the national government such as the
Baltimore branch of the National Bank. Moreover, it gave Congress broad
powers under the “necessary and proper clause” to exercise a wide extension
of the powers delegated to it under Article I, Section 8 of the Constitution. 3
• A Supreme Court decision apparently settles a constitutional question, but the
decision is not necessarily permanent since a new statute or treaty can reverse it. In
Missouri v. Holland, the Supreme Court found that a Congressional law not
permitting the hunting of migratory birds was unconstitutional under Amendment
X since hunting regulations were powers reserved to each state. Later, a U.S. treaty
with Canada prohibiting hunting of migratory birds in both nation- states
invalidated an American state’s ability to permit hunting of migratory birds.
• In conflicts between President and Congress, there is no consistent bias regarding
domestic disputes between these two branches, but foreign policy is different. The
Court almost always favors the presidency in foreign policy disputes . As Justice
Sutherland stated in the Curtis-Wright case, “….the president is the sole organ for
conducting foreign policy.”
• Judicial decisions can rely on precedent – “stare decisis” or “sociological
jurisprudence” where more reliance is placed on the socio-politico-economic
environment of the times.
• Courts do not actively seek to be involved in policy, they only become involved
when the case comes before them.
Exceeds expectations
Student addresses 5-7 of these points
Meet expectations
student addresses 3-4 of these points
Does NOT meet expectation
student addresses fewer than 3 of these points
4
Chapter 14 Scenario 1
 What
should be the role of the
courts/judges?
 Should courts/judges make policy?
What examples can you think of
where the courts make policy?
5
Judicial Policymaking
 Judges
confront conflicting
values in cases before them
 Some courts, (Supreme
Court), make fundamental
policy decisions
 Decisions become precedent
for similar cases
 Court
decisions can undo
work of elected majorities
6
National Judicial Supremacy
 Read Article III of Constitution
 (on pg. A-9 – A-10 in Appendix)
 Supreme Court only court defined by
Article III, Section 1 of the Constitution
 Congress given power to create national
court system
 Judiciary Act of 1789 created system of
federal courts separate from state courts
 In early years of Republic, not particularly powerful
7
Chief Justice John Marshall
http://www.youtube.
com/watch?v=8DQ_
K94vflM&feature=rel
ated
• Longest
serving Chief
Justice of the
Supreme Ct.
• Judicial
Review
• Strengthened
the judicial
branch
• Marbury v.
Madison – one
of most
important
cases in
history
8
Judicial Review of
the Other Branches
 Constitution does not speak to question of
“who should prevail?” in conflict between
different branches of government
 In Marbury v. Madison (1803), Supreme
Court established power of judicial review
 First time a court invalidated an act of
Congress
 If an act of Congress violates Constitution, the
act is invalid.
9
“You’re out!”
 Judicial
review of national laws made
the Supreme Court the umpire of the
national government
 BUT,
can it invalidate state laws in
conflict with the Constitution?
10
Judicial Review of
State Government
YES, it can!
 In 1796, Supreme Court ruled that a
Virginia law canceling a debt to a British
creditor violated U.S. Constitution's
Supremacy Clause

 Virginia law therefore nullified

National supremacy requires Supreme
Court to impose uniformity of national laws
 Otherwise, meaning of laws would vary from state to state
 Supreme Court has invalidated state/local laws nearly
1200 times (abortion, death penalty, reapportionment, etc.)
11
The Exercise of Judicial Review
 The components of judicial review:
 Federal courts can declare national, state,
and local laws unconstitutional
 National laws or treaties supreme when
conflict with state or local laws
 Supreme Court final authority on meaning
of Constitution
12
The Exercise of Judicial Review
 Is judicial review undemocratic since
federal judges appointed?
 Federalist No. 78 saw judicial review as barrier
to legislative oppression
Alexander
Hamilton
 Constitutional amendments and
impeachment means to correct judicial errors
 However, this power does mean judges
can operate counter to majoritarian rule
13
The Organization of Courts
 U.S. has complex court system
 State courts (no two state’s courts identical)
 National/federal courts coexist with states
 Individuals fall under jurisdiction of both
national and state courts
 99% of cases filed in state courts
 Volume of state cases increases about 1% a
year, mostly contract disputes
14
• Federal courts have 3
tiers:
• District courts
• Courts of appeals
• Supreme Court
• Supreme Court created
by Constitution
• All other federal
courts created by
Congress
• More than 100 state
cases for every federal
case
• State courts:
• Minor trial courts for
less serious
• Major trial courts for
more serious
• Appellate courts
• State supreme
courts
• State courts created by
state constitutions
The Federal and State Court Systems,
2008-2009
15
Some Court Fundamentals
The government prosecutes criminal cases, or
violations of penal code or public order
 Some crimes common to all states (Ex: Murder,

rape, arson)

Others specific to individual state or a few
states (Ex: marijuana)
 Maintaining public order mostly state/local
function
 Federal criminal cases related to activities that
fall under powers of national government (tax
evasion, counterfeit money)

Civil cases involve disputed claims to
something of value
16
Some Court Fundamentals (Cont.)
 Civil
Cases: disputed claims to
something of value
 Accidents, contracts, divorce
 Could be tangible (custody of children) or
abstract (compensation for
pain/suffering)
 Criminal
 Civil
= jail/fine
=$
Criminal
Civil
17
Procedures and Policymaking
 Most cases never go to trial
 Prosecutors may plea bargain
 Admission of guilt for lesser punishment
 Parties to a civil case may settle or one may
abandon efforts
http://www.youtube.com/watch?v=u4q_0OgBZ5g
 Cases that go to court end in an
adjudication (court judgment enforced by govt)
 Written reasons supporting a judicial
decision called opinions
18
Judicial Policymaking
 Judges make policy two ways:
 Common, or judge-made law
Find an
example
 Rulings where no existing legislation exists
 Set precedents for future cases
 Statutory Construction
 Judicial interpretations of legislative acts
 Look for intent of the law based on reports, debates, hearings
 With or without legislation, judges look to
relevant opinions of higher courts to guide
them
19
The Federal Court System

Organized in three tiers, as a
pyramid
 Litigation starts with U.S. District
Courts
 Appeals then go to the U.S. Courts of
Appeals
 Final tier is Supreme Court

Courts of Appeals and Supreme
Court generally review only cases
already decided in lower courts
20
The U.S. District Courts
 Each state has at least one federal
district court
 A total of 94 federal district courts
 Entry point for federal court system
 U.S. magistrate judges assist district judges
but lack independent judicial authority
FAQS:
http://www.ksd.uscourts.gov/faqs/
21
Sources of Litigation

Authority of U.S. district court extends to:
 Federal criminal cases
 Robbery of a nationally insured bank
 Civil cases alleging a violation of national law
 Failure of municipality to implement pollution-control regulations
 Civil cases brought against the U.S.
government
 Vehicle manufacturer sues
 Civil cases between citizens of different states if
disputed amount exceeds $75,000
22
The U.S. Courts of Appeals

Twelve regional U.S. courts of appeals
 Thirteenth court, U.S. Court of Appeals for the
Federal Circuit, is not a regional court
 Specializes in patents, contracts, federal employment cases
Each appeals court hears cases from a
circuit (geographical area)
 All cases resolved in U.S. district court or
decisions of federal administrative
agencies can be appealed

23
24
Appellate Court Proceedings

Appeals based on rulings made and procedures
followed, not on guilt/innocence
 Example: evidence inadmissible because lack of
valid search warrant.
 Retrial without the evidence if court agrees with the
appeal

Most cases resolved by panel of three judges
(no jurors, witnesses, nor cross examinations)
 Judges review written briefs (arguments)
 May or may not schedule oral arguments
 15 minutes for each side
25
Precedents and Making
Decisions
 Written judgment of appellate courts
serve as precedent for subsequent cases
 Judges make policy to extent they influence
other courts
 Stare decisis provides continuity and
predictability to the law (“Let the decision
stand”)
 Rulings designed to correct errors in district
court proceedings and to interpret the law
26
Uniformity of Law
 Appellate
courts try to harmonize
decisions in region when district
judges make conflicting rulings
 However, courts of appeals not bound
by decisions of other circuits
 Supreme Court avenue for resolving
conflicting decisions by different
circuit courts of appeals
27
The Supreme Court
 Supreme Court strives to achieve a just
balance among the values of freedom,
order, and equality
 Flag burning as a form of political protest
 Order vs. Freedom
 School desegregation
 Equality vs. Freedom
http://www.youtube.com/watch?v=ZS2Up5TeirM Youtube – Road to the Supreme Court.
28
U.S.
Supreme
Court
Justices
Conservatives: Thomas,
Scalia, Roberts, Alito
Liberal: Ginsburg,
Sotomayor, Kagan
Breyer
Moderate/Conservative
but sometimes voting
liberal: Kennedy
-Seated left to right: Clarence Thomas, Antonin Scalia, Chief Justice
John Roberts, Anthony Kennedy, Ruth Bader Ginsburg
-Standing left to right: Sonia Sotomayor, Stephen Breyer, Samuel Alito,
29
Elena Kagan.
30
Access to the Court


Idea that anyone can take a case to the
Supreme Court theory, not fact
Court’s cases come from two sources:
 Original jurisdiction established by Article III,
Section 2, of the Constitution
 Cases begin and end at the Supreme Court
 Appellate jurisdiction from U. S. courts of
appeals or a state’s court of last resort

Cases from state courts must have
exhausted appeals in their state system
and deal with a federal question
 (Constitutional, national treaty, or federal law
questions)
31
The Supreme Court’s Docket


Docket = Court’s agenda
Supreme Court hears fewer than 100 cases
from the more than 8,000 submitted each
year
 Requests made by petition for certiorari (seeking
review of lower court) – vast majority denied
 Rule of four unwritten requirement
 Business cases substantial portion of docket

Justices meet twice a week to vote on
previously argued cases and consider new
cases
32
Figure 14.1 – pg. 397
Access to and Decision Making in U.S. Supreme
Court
This chart sketches the several stages leading to a decision from the Supreme Court.
Only a fraction of the thousands of state/national appeals end up on the Supreme
33
Court’s docket.
The Solicitor General

Represents the national
government before the Supreme
Court
 Third-ranking position in
Department of Justice

Solicitor General
Donald Verrilli
Duties include
by
 Determining whether to appeal a Filed
individual/group
that is not a
lower court’s decision
party o it but
has interest in it.
 Reviewing briefs for appeals
 Deciding whether or not to file amicus
curiae briefs in any appellate court
 “Friend of the Court” – see pg. 463
Former S.G.
Elena Kagan
34
The Solicitor General
 Position has two roles:
 Advocate for president’s policy preferences
 Defend institutional interests of the national
government
 Traditionally recommends only cases of
general importance
 Informal title of “the tenth justice”
 Influential in winning cases/setting agenda
35
Decision Making
Once review granted, attorneys submit
written briefs
 Oral arguments held 2-3 hours a day, 5-6
days per month from October - April

 Typically 30 minute argument from each side

After arguments heard, justices hold
conferences to discuss cases and vote
 These meetings limited to the nine justices
http://www.supremecourt.gov/oral_arguments/2015Ter
mCourtCalendar.pdf
36
Supreme Court Decision
Making (cont.)
Unwritten rule not to discuss cases before
oral argument
 Justices like crisp, concise presentations
 Some relentless questioners, some
subdued
 Justices debate through the questions they
ask the attorney. They can’t address each
other directly during oral
 Conferencing? More like a statement of
37
views

Supreme Court Justices
Conference Room
38
Judicial Restraint and
Judicial Activism
Concept of judicial restraint means
decisions based on legal doctrines, prior
decisions, and deference to elected
officials
 Judicial activists maintain judges should
use powers to promote judges’ preferred
social and political goals
 Terms not limited to a particular ideology

39
Figure 14-3
Measuring Judicial Activism
•
•
•
•
Conservatives and liberals are both capable of exercising restraint or activism.
The chart shows votes to strike down congressional acts from 1994-2008.
Judicial invalidation of legislation may be appropriate.
From 1994-2008, conservative justices were more inclined to activism than the
moderate or liberal justices.
40
Judgment and Argument
 Voting
outcome is called the judgment
 Justices in the majority draft opinion
setting out reasons for decision
 If all agree, decision is unanimous
 Justices who agree but for different
reasons than listed in the majority
opinion may file a concurring opinion
 Justices who disagree may file a
dissenting opinion
41
The Opinion

The chief justice or most senior justice in
the majority decides which justice will
write majority opinion
 Must keep majority together – votes still
tentative

Draft opinion circulated among all
justices for criticisms and suggestions
 Justices may choose to change initial vote
up until official announcement of decision

Dissent happening more frequently in
recent years
42
Strategies on the Court
Cases that reach the Supreme Court
require difficult choices
 Ideologies reflect values; some justices
have tried to encourage appointment of
like-minded colleagues

 Liberals value freedom over order and
equality over freedom
 Conservatives choose order over freedom
and freedom over equality

Intellectual ability also affects debates
43
The Chief Justice
 Forms docket
 Directs Court’s conferences
 May also serve these roles:
 Generating solidarity within the group
 Intellectual leadership
 Policy leadership
44
Judicial Recruitment
 No formal requirements
for appointments
to federal courts
 President nominates; Senate must confirm
 Congress sets compensation: (2014)
Chief Justice of the Supreme Court
Associate Supreme Court justices
Courts of Appeals justices
$255,500
$244,400
$211,200
District judges
Magistrate-judges
State Supreme Court judge (average)
$199,100
$160,080
$150,633
2010
45
State Judicial Selection

Governor appoints judges in more than
half of the states
 Some must then face retention elections

Other states select by:
 Partisan election
 Nonpartisan election
 Legislative election (rare)

In some states, must be confirmed in
legislature
http://www.dc18.org/info/general.shtml
Kansas 18th Judicial District Court
46
The Appointment of
Federal Judges
 Appointments for life until resign, retire,
die, impeached (only 14 ever impeached)
 Must have Senate confirmation
 Presidents look for judges who favor
their policies
 Office of White House Counsel helps
identify candidates
 Justice Department assists with screening
47
The “Advice and Consent”
of the Senate
 For district and appeals court,
senator from president’s party
must approve
 Senatorial courtesy
 Or state’s House delegation, if no
senator from president’s party
 Recent presidents have tried to
appoint more women and
minorities
Steve
Six
Jerry
Moran
Pat
Roberts
48
Senate Confirmation
Senate Judiciary Committee conducts
hearings for each judicial nominee
 Confirmations have become ideological
battleground

 Hearings focus on judicial policy and
approach towards interpretations of the law

Filibusters sometimes used to prevent
appointments
49
Recent Presidents and
the Federal Judiciary
 While recent presidents have appointed
more diverse judiciary, ideology rules
 Carter’s appointments most liberal
 Reagan and George W. Bush-appointed
judges most conservative
 Presidents appoint judges of similar
political ideology
50
Appointment to
the Supreme Court
 Attract extreme public scrutiny
 Since 1900, six appointments have failed
to be confirmed by Senate
 Most important factor: partisan politics
 Most nominees have prior judicial
experience
 Good predictor of future opinions
 “Lame duck” presidents frequently
unsuccessful
51
Ideological Shifts
 President
George W. Bush nominated
two Supreme Court justices, John
Roberts and Samuel Alito
 As a result, ideology of court more
conservative
 Justice Kennedy now “swing vote”
 President Obama nominated Sonia
Sotomayor and Elena Kagan
52
Figure 14-4
A More Representative Court
The Supreme Court has 3 women, 1 African American, and 1 Hispanic.
Court Breakdown: 67% male, 11% black, 11% Hispanic, 78% White
This puts it close to the national breakdown of 2008.
Hispanics are expected to double over the next generation
53
54
The Consequences of
Judicial Decisions
 Judicial
rulings small percentage
of legal dispositions
 Most cases end in plea bargain or
no court judgment
 About 10 percent of civil and criminal
cases go to trial
 Many
cases appealed to delay
prison
55
Public Opinion and
the Supreme Court
 Even though not elected, ideologically
balanced Court and public sentiment
eventually align in most cases
 One exception: school prayer
 Poll in 2009 showed six in 10 Americans
more likely to approve than disapprove
of job Supreme Court doing
56
The Courts and
Models of Democracy
 Majoritarian
model: courts should
follow the letter of the law and defer
changes to elected representatives
 Pluralist model: courts are
policymaking branch of government
and have legitimate right to
consciously advance group interests
57
Newman Essay 9
 Explain
the role of the courts in the
policymaking process. How do they
influence the policymaking process?
Exceeds expectations
Meet expectations
Does NOT meet expectation
Student addresses 5-7 of these points
student addresses 3-4 of these points
student addresses fewer than 3 of these points
58
Numerous examples are possible and desirable. Some of the key examples
include:
 PRECEDENT!





•
Decisions are often affected by the political positions of judges and
Supreme Court Justices. In fact, over 92% of federal judges are not only of
the nominating president’s political party, but frequently possess the same
ideology as the president selecting them.
•
Judicial biases can reflect themselves in vital political decisions as
occurred in 2000 when the Democratic-dominated Florida Supreme Court
made decisions favorable to Gore and the Republican-dominated U.S.
Supreme Court decided for Bush.
•
Human rights issues are also subject to judicial interpretation as
occurred when Plessy v. Ferguson established “separate, but equal” as the
standard, but Brown v. Board of Education relied on the 14th Amendment
provision of equal protection to overturn the Plessy decision.
•
In McCulloch v. Md. The Court firmly established that under Article
VI a state could not tax an entity of the national government such as the
Baltimore branch of the National Bank. Moreover, it gave Congress broad
powers under the “necessary and proper clause” to exercise a wide extension
of the powers delegated to it under Article I, Section 8 of the Constitution.59
• A Supreme Court decision apparently settles a constitutional question, but the
decision is not necessarily permanent since a new statute or treaty can reverse it. In
Missouri v. Holland, the Supreme Court found that a Congressional law not
permitting the hunting of migratory birds was unconstitutional under Amendment
X since hunting regulations were powers reserved to each state. Later, a U.S. treaty
with Canada prohibiting hunting of migratory birds in both nation- states
invalidated an American state’s ability to permit hunting of migratory birds.
• In conflicts between President and Congress, there is no consistent bias regarding
domestic disputes between these two branches, but foreign policy is different. The
Court almost always favors the presidency in foreign policy disputes . As Justice
Sutherland stated in the Curtis-Wright case, “….the president is the sole organ for
conducting foreign policy.”
• Judicial decisions can rely on precedent – “stare decisis” or “sociological
jurisprudence” where more reliance is placed on the socio-politico-economic
environment of the times.
• Courts do not actively seek to be involved in policy, they only become involved
when the case comes before them.
Exceeds expectations
Student addresses 5-7 of these points
Meet expectations
student addresses 3-4 of these points
Does NOT meet expectation
student addresses fewer than 3 of these points
60