The Federal Courts
Chapter 16
The Adversarial System
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The Courts provide an arena for two parties to
bring their conflict to an impartial arbiter.
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Criminal Law Cases- the government charges an
individual with violating specific laws
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Involve grand juries and trial juries
Civil Law Cases- a dispute between two parties where
one claims to have been “wronged” by the other
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Civil law cases often involve a “tort.”
Civil law cases do not decide guilt or innocence, but whether
or not monetary compensation is justified.
Participants in the Judicial System
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Litigants- the two parties involved
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Plaintiff- person who brings the suit
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Plaintiffs must have “standing to sue.”
Defendant- person who is being sued
Judges- judicial power is “passive.” Judges
cannot actively seek out cases; they must
wait for cases to be brought to them
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Disputes must be “justiciable,” meaning they
must be able to be decided by legal methods
or knowledge
Participants, continued…
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Outside Groups- groups often seek out litigants
whose cases seem likely to warrant court
attention and result in broad statements about
civil liberties or public policy. (Examples: ACLU,
NAACP)
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Class Action Lawsuits- a small number of people may
sue on behalf of those similarly situated.
Lawyers
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In many criminal cases, the defendant is too poor to
afford an attorney so they are appointed one by the
state- these are referred to as public defenders.
Solicitor General- lawyer for the U.S., argues cases
before the Supreme Court when the U.S. is a litigant
The Structure of the Federal
Judiciary
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Federal District Courts
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91
Judges and Juries
original jurisdiction
appellate jurisdiction in death penalty cases
from states
Employ the U.S. Attorneys and the U.S.
Marshalls
The Structure of the Federal
Judiciary, cont…
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The Circuit Courts of Appeal
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12
Anywhere from 6-27 judges, no juries
Decide cases in panels of 3, but may sit en banc
Only appellate jurisdiction
The Supreme Court
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1
9 judges, no juries
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The number of justices on the Supreme Court is set by
Congress.
original and appellate jurisdiction
The Politics of Judicial Selection
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Presidents can have long lasting effects more so
through court appointments than almost
anything else.
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The Lower Federal Courts- many entities have input.
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The President through the Justice Department
The Senate- Senatorial Courtesy and Confirmation
The American Bar Association- ratings system
The Supreme Court- appointments have become
highly political in recent years.
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Historically, only 29 of 151 nominees have not been
confirmed.
The Politics of Judicial Selection,
cont…
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Recent Controversies:
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Robert Bork 1987- Justice Kennedy finally
confirmed.
Clarence Thomas- 1991- Anita Hill hearings
Ruth Bader Ginsburg- 1993- Clinton wavered
until last second nomination
Harriet Miers- 2005- withdrew her nomination
after a firestorm of opposition from the right.
And, here they are…
The Current Court
A Historical Review of the Courts
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1789-early 1900s- the growth of national
supremacy and judicial review.
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Two notable instances where the court’s
prestige was weakened
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Cherokee Nation v. Georgia (1832) and Dred Scot
v. Sanford (1857)
The Nine Old Men- conservative judges
during the New Deal struck down program
after program as unconstitutional
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FDR and the Court Packing scheme
Historical Review, cont…
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The Warren Court (1953-1969)- the highwater
mark of liberal activism
The Burger Court (1969-1986)- more
conservative leaning, with some notable
exceptions- Roe v. Wade, NY Times v U.S.
The Rehnquist Court (1986-2005)- often known
as the “states rights” court, except for one
glaring exception- Bush v. Gore
The Roberts Court (2005-)- most noted so far
for taking extremely technical cases that rule on
narrow points of law, but we’ll see…
The Nature of Judicial Power and
Philosophy of Judges
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Original Intent- a.k.a.
strict constructionismbelieve founders intent
should be paramount in
interpreting the
Constitution
Loose Constructionismbelieve Constitution
should be interpreted to
fit contemporary needs
and situations
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Judicial Activism- Judges make
bold policy decisions, chart
new Constitutional ground,
overturn precedents and do
not hesitate to overturn the
policymaking decisions of
Congress and the President
Judicial Restraint- judges
adhere to precedent and
minimally overturn the
policymaking decisions of
Congress and the President
What is the assumption?
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That “conservative” judges always believe in
strict constructionism and judicial restraint, and
that “liberal” judges always believe in loose
constructionism and judicial activism.
Although this is partially true, the reality is far
more complicated. These terms are mainly used
today by both sides to rile up discontent over
judicial decisions and judicial nominees.
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Example: New Deal- conservative judges were
“activist” by overturning policy made by Congress
based on a “strict” interpretation of the commerce
clause.
Summary
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The unelected and powerful federal courts raise
important questions about democracy and the
scope of judicial power. Yet court decisions are
usually consistent with public opinion and
justices often use their power to protect those
rendered powerless by majoritarian democracy.
The role of the courts as active policymakers or
restrained adherents to original intent will
remain a matter of continued debate as the
interest groups continues to use the courts to
push their own policy agendas.
How cases reach the Supreme
Court
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Step 1:
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Litigant files for a writ of certiorari- a formal
order used to bring a case to court
The decision to “grant cert” is based on the
rule of four- if four justices want to review the
case, then it will be granted cert.
The court gets an average of 1500-2000 cert
petitions per year, and grants less than 10%
Potentially, the Supreme Court will deny cert,
but remand the case back to the lower court.
Step 2:
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Once cert has been granted, the case is put on
the docket- the formal schedule of cases to be
heard during that term (Oct-June)
At this time, both parties begin submitting briefs
- written summaries of the legal arguments for
both sides.
Interested outside parties can also submit briefsthese are called amicus curiae (or, friend of the
court) briefs.
Step 3:
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Law clerks review the briefs and present
summaries of the cases to the justices.
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The law clerk role is very important- not only
do they review all cert petitions, but they also
prepare information for the justices on the
cases they will actually “hear.”
Each justice has 3 clerks, except for the chief,
who gets 4.
Once the clerks prepare summaries, the
justices review all the relevant information.
Step 4:
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Oral Arguments:
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This is the only part of the process open to
the public/media. NO CAMERAS
Each lawyer gets 30 minutes to present their
case to the justices, at which time the justices
can interrupt with questions, etc…
This is where the media pays attention to try
to get a feel for how each justice is leaning.
Step 5:
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Conference- one or two
days per week, the
justices meet in secret to
discuss the cases they’ve
recently heard.
At this time, they take a
preliminary vote and
decide who will write the
opinions in the case.
Step 6:
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The Opinions- what did they decide?
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The Majority Opinion- this becomes the precedentthe settled law by which all future cases are decided.
Who writes it?
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If the chief is in the majority, he decides. If the chief is in the
minority, the ranking justice in the majority decides.
Why is this significant?
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The opinion sets the “tone” and contains important
language. (i.e. Sandra Day O’Connor and undue burden
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The Dissenting Opinion- this is important
as it can potentially become the reason to
overturn precedent.
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Plessey v. Ferguson had one dissenting
opinion.
The Concurring Opinion- the opinion of
those agreeing with majority, but for
different legal reasons.