By Loren Miller
U.S. SUPREME COURT, 1790
New York City
U.S. SUPREME COURT TODAY
Washington, D.C.
http://www.oyez.org
ARTICLE III
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 WEAKEST BRANCH?
The federal judicial system was
expected to be the weakest branch
of the government and early
presidents had a difficult time
finding people who would serve on
the Supreme Court as there was
little to do.
1790 – 0 cases
1791 – 2 cases
1792 – 5 cases
THE WEAKEST BRANCH?
The judicial branch became more of
a “co-equal” branch when John
Marshall became Chief Justice.
JUDICIAL REVIEW
The principle that the courts have
the power to strike down legislative
and executive acts that are
unconstitutional.
Hylton v. U.S. (1796)
Marbury v. Madison (1803)
Number of Federal Laws Declared
Unconstitutional
1798-1864
1864-1900
1901-1910
1911-1920
1921-1930
1931-1940
1941-1952
1953-1969
1970-1986
1987-2004
2005-2014
2
21
9
11
13
14
3
23
33
39
12
TOTAL
180
Number of State Laws Declared
Unconstitutional
1790-1859
1860-1909
1910-1929
1930-1939
1940-1959
1960-1979
1980-1999
2000-2011
TOTAL
36
182
258
92
127
346
226
40
1,307
TYPES OF LAW
Constitutional Law • Litigation abounds:
– A D.C. judge sued his
• Statutory Law
drycleaner for $54 million
•
–
Civil Law
– Criminal Law
•
Administrative Law
• Common Law
• Natural Law
for losing his pants
– Schools that now ban
running at recess
– The teacher sued for
repositioning a student’s
hands on a flute
A Hazard of Texting
COMMON LAW
Strictly speaking, common law must be:
1) Unwritten and
2) Traced back to England
Today, common law means that legal decisions
build from precedent established in previous
cases and apply commonly throughout the
jurisdiction of the court.
Administrative Agencies
Federal Trade Commission: regulation of advertising
and telemarketing.
Federal Communications Commission: regulates the
broadcast, cable, satellite, and telephone industries.
Federal Election Commission: regulates political
campaign contributions and expenditures.
Food and Drug Administration: regulates
prescription drug and medical product advertising.
Administrative Rules
# of pages in Federal Register
(in thousands)
350
300
CASELOADS IN FEDERAL
COURTS In Thousands
250
200
CIVIL
150
CRIMINAL
100
50
0
1970
1980
1990
2000
2010
2015
1000
900
CASELOADS IN TEXAS
COURTS In Thousands
800
700
600
CIVIL
500
CRIMINAL
400
300
200
100
0
1990
2000
2010
HOW TO INTERPRET THE
LAW
•
•
•
•
Doctrine of Original Intent
Literalism or Absolutism
Stare Decisis
Balancing Approach
• Can judges interpret the law “value
free”??
– Judicial Activism: go beyond the words of the
law to consider the societal implications of the
decision (one who overturns a law)
– Judicial Restraint: should not go beyond the
clear words of the law.
HOW TO INTERPRET THE
LAW
The law, in its majestic impartiality,
forbids the rich as well as the poor to
sleep under bridges, to beg in the
streets, and to steal bread.
Jacques Thibault, French Nobel
Prize Winning Writer, 1894
INTERPRET THESE TEXAS LAWS
• At one time it was illegal to own a copy
of the Encyclopedia Britanica in the
state—because that publication
contained a formula for making liquor.
• Up to a felony charge can be levied for
promoting the use of, or owning more
than six female pleasure devices.
INTERPRET THESE TEXAS LAWS
• There was a state law that prescribed
that when two trains met at a railroad
crossing, each had to come to a full
stop, and neither could proceed until the
other had gone.
• Criminals must give their victims 24
hours notice, either orally or in writing,
to explain the nature of the crime to be
committed.
JUDICIAL SYSTEM, 1790
Created by the
Constitution
Created by the
Judiciary Act
of 1789
Supreme Court
3 Circuit Courts Of
Appeal
13 District Courts
FEDERAL COURT SYSTEM
Original
Jurisdiction
U.S. Supreme Court
(8,200 appeals)
Legislative
Courts
Federal Regulatory
and Administrative
Agencies
2014
13 U.S. Courts Of
Appeals (179
Judges)
(56,000 cases)
94 U.S. District
Courts (677 Judges)
(361,000 cases)
ARTICLE I COURTS
SPECIALIZED COURTS
• Article I, Section 8 -- the necessary
and proper clause Is used by
Congress to create legislative courts
– Tax Court (19 judges; 15 year terms)
– Court of Appeals for Veterans Claims (7
judges; 15 year terms)
– Court of Military Appeals (5 judges; 15
year terms)
– U.S. Claims Court (16 judges; 15 year
terms)
ARTICLE I COURTS
SPECIALIZED COURTS
• Recent Courts:
– Foreign Intelligence Surveillance Court
• A secret court formed to hear government
requests for warrants to conduct surveillance
on suspected spies. Judges are “borrowed”
from the district court.
• If the judge denies the government’s request,
then the government may appeal to the
Foreign Intelligence Surveillance Court of
Review. Judges are “borrowed” from the
courts of appeals.
APPELLATE COURTS
Patents and
International Trade
FEDERAL & STATE COURTS
To U.S.
Supreme
Court
State Courts of Last Resort
(95,000 cases)
State Intermediate Courts
of Appeal
(300,000 cases)
State Trial Courts
2014
(14 million filings)
The Number of Supreme
Court Opinions
Acetate CT–2
FEDERAL JURISDICTION
• SUBJECT MATTER
(What is involved)
U.S. CONSTITUTION
FEDERAL LAWS
Civil & Criminal
TREATIES
ADMIRALTY LAW
• PARTIES (Who is
involved)
STATE V. STATE x
REP. OF FOREIGN
COUNTRY x
U.S. GOVERNMENT
DIVERSITY OF
CITIZENSHIP
JUSTICIABILITY
• Ripeness: is it too early for the Court to decide the case?
• Mootness: is it too late for the Court to decide?
• Venue: is this Court the right one (jurisdiction)
• Political Question: is the subject matter appropriate for
the Court to decide at all
• Standing: does the participant have a stake in the matter
OPINIONS IN THE
SUPREME COURT, 2012-13
TYPE OF CASE
•
NUMBER OF CASES
•
Original jurisdiction
Civil actions from lower federal courts
Federal criminal and habeas corpus cases
Civil actions from state courts
State criminal cases
•
TOTAL
•
•
•
0
48
18
6
6
78
JUDICIARY ACT OF 1925
• Prior to 1925, the Supreme Court was
required to “hear” all cases properly
brought before them
• Since 1925, the Supreme Court only
hears “cases of national importance”
THE ACCEPTANCE
PROCESS
•
Original Jurisdiction
–
•
very few cases begin at the Supreme
Court
Appellate Jurisdiction
–
party must apply for a “writ of
certiorari” (a cert)
WHY ACCEPT??
% Reversed By Supreme Court
WHY ACCEPT??
When the federal government (solicitor general) is the party
asking for review.
When there is a conflict between circuits.
When the circuit court decision was not unanimous.
When the case involves civil rights and civil liberties.
When the justices are interested in the subject matter.
When numerous interest groups show significant social or
political interest.
ACCEPTANCE PROCESS
Approximately 7,500
cases are appealed
to the Court
Recommendations
are considered
in Conference
Law Clerks screen
appeals & submit
recommendations
to justices
Discuss List
Rule of Four
Review denied for
more than 99% of
cases
SUPREME COURT CASE
LOADS, 1930-2010
DECISION-MAKING
PROCESS
Class Action
Court’s docket
(80-125 cases)
Judicial
Conference
Public
Opinion
Influence of
Executive Branch
Lower Court
Rulings and
Precedents
Briefs submitted by
both sides; amicus
curiae briefs filed
Opinion drafted
and
circulated
Internal Politics of Court
Oral
Argument
Decision
Announced
JUDICIAL CONFERENCE
In the conference a preliminary vote is taken with
the Chief Justice voting last.
If the Chief Justice is in the majority, then s/he
will assign someone (maybe himself) to write the
“Opinion of the Court.” If the Chief Justice is not
in the majority, then the Justice with the most
seniority who is in the majority will write the
opinion. This opinion is circulated to all the
Justices.
JUDICIAL CONFERENCE
Any Justice in the minority may write a
“Dissenting Opinion,” which is also circulated to
all of the Justices.
If a Justice in the majority agrees with the
Opinion of the Court but for reasons other than
those stated in the Opinion of the Court, s/he may
write a “Concurring Opinion,” which is also
circulated to all of the Justices.
HOW LONG DOES IT TAKE?
Days from Oral Argument to Decision, 2012
Mean = 94
Unanimous Decisions
JUDICIAL RECRUITMENT
•
•
•
Judicial recruitment in the United
States is unlike the selection process
of most western democracies.
Western democracies treat being a
judge as a distinct profession
requiring specialized training.
Judicial selection in the United
States is a political process with few
formal requirements.
% Appointed by President
50
45
39
44
22
44
37
32
13
2013
00
00
% OF JUDGESHIPS FILLED BY
PRESIDENT
00
00
00
00
00
50
00
45
39
44
22
38
37
32
00
13
0
2014
36
CONFIRMATION DELAY
(in Days)
23%
Background of Supreme
Court Justices to 2015
•
Religious Affiliation:
–
–
Protestant
Roman Catholic
Jewish
Unitarian
–
No Affiliation
–
–
•
83
14
7
7
1
Age on Appointment:
–
–
–
–
Under 40
41-50
51-60
61-70
5
33
60
14
Background of Supreme
Court Justices to 2015
•
Religious Affiliation:
–
–
–
–
–
–
–
–
–
Roberts
Scalia
Kennedy
Kagan
Sotomayor
Thomas
Ginsburg
Breyer
Alito
Roman Catholic
Roman Catholic
Roman Catholic
Jewish
Roman Catholic
Roman Catholic
Jewish
Jewish
Roman Catholic
Background of Supreme
Court Justices to 2015
•
Educational Background:
–
•
96
16
Gender
–
–
•
College Graduate
Not a College Graduate
Male
Female
108
4
Race:
–
–
–
Caucasian
African American
Hispanic
109
2
1
Background of Supreme
Court Justices to 2015
•
Law School of Current Justices
–
–
–
–
–
–
–
–
–
Roberts
Alito
Kagan
Garland (?)
Kennedy
Sotomayor
Thomas
Ginsberg
Breyer
Harvard
Yale
Harvard
Harvard
Harvard
Yale
Yale
Columbia
Harvard
Background of Supreme
Court Justices to 2015
•
Party Affiliation:
–
Federalist (to 1835)
13
– Democratic Republican (to 1828) 7
– Whig (to 1861)
1
– Democrat
46
– Republican
44
– Independent
1
Background of Supreme
Court Justices to 2015
•
Party Affiliation:
–
Roberts
– Kagan
– Garland (?)
– Kennedy
– Thomas
– Ginsburg
– Breyer
– Alito
– Sotomayor
G.W. Bush
Obama
Obama
Reagan
G. Bush
Clinton
Clinton
G.W. Bush
Obama
R
D
D
R
R
D
D
R
D
WHAT’S IT TAKE TO BE A
FEDERAL JUDGE?
•
District Judge
–
•
role of senatorial courtesy
Judge, Circuit Court of Appeals
Party Affiliation of District Judges
President
Party
% Same Party
Nixon
Republican
93%
Ford
Republican
79%
Carter
Democrat
91%
Reagan
Republican
92%
Bush
Republican
89%
Clinton
Democrat
88%
Bush
Republican
83%
Obama
Democrat
86%
*Through 2012
WHAT’S IT TAKE TO BE A
SUPREME COURT
JUSTICE?
•
Overriding Considerations
–
–
•
political party
political ideology
Other Variables
–
age
– geography
– gender
– race
– religion
FEDERAL COURT
APPOINTMENTS (%)
2014
FEDERAL COURT NOMINEES
BY RACE
2013
FEDERAL COURT NOMINEES
BY GENDER
2013
THE SUPREME COURT OVER TIME
% Conservative Votes
SUPREME COURT TRIVIA
•
•
•
•
•
•
Longest Serving: William O. Douglas, 36
years
1st Catholic: Roger Taney, 1836-1864
1st Jew: Louis Brandeis, 1916-1939
1st Black: Thurgood Marshall, 1967-1991
1st Woman: Sandra Day O’Connor, 1981-2006
1st Hispanic: Sonia Sotomayor, 2009-