Introduction to the Federal Courts
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Judicial power is passive
A. Courts cannot reach out and “take” cases. Cases must come to them.
B. There must be an actual case (“controversy”) for a court to make a ruling. Courts cannot
“create” cases.
C. Only those with standing may challenge a law or gov’t action, i.e. only one who has sustained or
is near sustaining an “injury” may bring a case to court. One cannot challenge a law simply
because one does not happen to like it.
Judicial law-making
A. judges, contrary to what some may think, are not simply impartial referees who only carry out
the law. Judges ​interpret​ the law, and in so doing in fact ​make​ law. It is necessary that they
make law because:
1. statutes are often broadly-worded, unclear, or contradictory
2. The Constitution is certainly broadly-worded, and requires interpretation.
3. Thus, interpretation of statutes and the Constitution is, in effect, making law:
B. Evidence of judicial law-making
1. courts have ruled > 1000 state laws as being unconstitutional
2. courts have ruled > 1000 federal laws as being unconstitutional
3. The Supreme Court has reversed itself >200 times since 1810
Jurisdiction: 4 types
A. Exclusive: sole authority of a federal court to try a case
B. concurrent: authority of both a federal and a state court to try a case
C. original: authority of a court to first try a case
D. appellate: authority of a court to hear a subsequent appeal.
Jurisdiction of federal courts.
A. the Constitution, a federal law, or a treaty. Federal courts may try a case if it involves:
B. Admiralty law (matters on high seas) or maritime law (matters on land but relating to water)
C. disputes between two or more states
D. the U.S. government as a party
E. citizens of different states
F. ambassadors or diplomats
Dual system of courts: In our federal system, we have both federal and state courts.
A. Article III of the Constitution deals with the judiciary, and creates a Supreme Court while also
giving Congress the power to create “inferior” courts​. These three levels of courts from the
main basis of our federal courts system.
B. Judges in these courts hold life terms. FEDERALIST #78
C. The three levels
1. District Courts
a) 90% of federal cases handled hear
b) 94 courts, ~ 600+ judges
c) tried by a judge and jury
d) use a grand jury to issue indictments (orders that charge an individual with a
crime. Does not mean that one is guilty; it merely means that one will be tried.)
e) original jurisdiction
f) appealed to Court of Appeals
2. Court of Appeals (Circuit Court)
a) 12 of these, spread out
b) 156 judges trying >18,000 cases a year
c) cases tried by a panel of 3 judges
d) appellate jurisdiction
e) appealed to the Supreme Court
3. Supreme Court - covered later
Federal Judges
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Appointed by the President on the “advice and consent” of the Senate
Article III - ​hold their office during good behavior, i.e. for life​. They can be impeached and removed
by Congress, however, it is very rare.
Factors affecting the selection of federal judges.
A. Senatorial Courtesy: When appointing District Court, the President must consult with eh two
Senators from the state in which they are to be appointed.
B. Senate Judiciary Committee
1. screens the nominees, and sends a recommendation to Senate floor for approval or
rejection
2. in recent years, has given more scrutiny to appointments, particularly those at the
Supreme Court level. Bork and Thomas leading to Souter nomination
3. the committee held up confirmation of many of Clinton’s lower court judges for months,
and even years (44 months in one case). Use of holds.
C. Senate: Majority vote needed for confirmation​. Has refused to act upon, or has rejected,
~21% of Supreme Court nominees in the 20th century.
D. Political Parties: judges are generally from the same political party as the President.
E. Diversity:
1. Race
a) mostly white
b) Carter appointed more minorities than all the previous Presidents combined.
Clinton also appointed numerous minorities to the fed. bench
2. Gender:
a) mostly male
b) Carter appointed more women than all the previous Presidents combined. 25% of
Clinton’s appt. female
F. Age: since judges have lifetime appointments, judges may live on long after the Presidents who
appoint them leave office. ​President’s influence continues after they leave office. Most
lasting thing a president can do.
G. Ideology:
1. Presidents generally try to appoint people of similar philosophy.
2. This is difficult to ensure, however:
a) predicting future behavior on the part of judges is at best an imperfect science
b) new issues may arise which the President could not have possibly considered
c) since judges have life terms, Presidents can do nothing about decisions they do
not like
d) approx. 25% of Supreme Court judges “stray” from the philosophy that had been
anticipated by the Presidents who appointed them.
3. Ideology also can affect the decision of a judge to retire, e.g. a judge may want to delay
retiring until there is a President with a more favorable philosophy.
H. Number of judges: ​Congress can increase or decrease the number of courts and judges.
The Supreme Court
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Background
A. Only court mentioned in Const.
B. Consists of 8 Associate Justices and 1 Chief Justice.
1. number of Justices is set by Congress
2. When position of Chief Justice is vacant, the President can appoint someone already on
the Court or someone who is not on the Court
3. Highest court in the land -- court of last resort
4. Key powers:
a) Power of judicial review
b) Power to interpret broadly-worded laws of Congress and the Constitution
c) Power to overrule earlier Supreme Court decisions
Jurisdiction
A. Original - in cases involving:
1. States
2. Ambassadors
B. Appellate - in cases from:
1. Courts of Appeals
2. State supreme courts
C. Cases from appellate jurisdiction are far more numerous than from original jurisdiction
How cases reach the Supreme Court
A. Thousands of requests are made for Supreme Court decisions, but ​relatively few requests are
granted. ~80-90 per year
B. Rule of 4​:​ In order for the Court to decide a case, 4 Justices must agree to do so​. Denying
a decision may mean any number of things:
1. case lacks a substantial fed issue
2. party lacks standing
3. SC agrees with a lower court
4. cas is a “political hot potato” that the SC does not want to touch
C. When a party request a Supreme Court decision, it files a petition for a ​writ of certiorari​.
These petitions are screened by the Court’s law clerks, and then reviewed by the Justices on
the Rule of 4 basis.
D. When the Justices accept a case, they then decide whether to ask for more information and oral
arguments from the attorneys or whether to decide the case quickly on the basis of the
attorneys briefs. Cases decided without further information are announced with a ​per curiam
opinion​. This is a very brief unsigned statement of the Court’s decision.
Supreme Court at Work
A. Term begins on first Monday in Oct. and continues to the end of June
B. Hears cases from Mon-Thurs. Quorum of 6
C. Before oral arguments, the Justices read the attorneys’ briefs
D. Justices also read ​amicus curiae​ briefs
E. Justices hear 30” oral arguments from each side
F. at the Friday conference, Justices discuss the cases
G. Simple majority needed for decisions. In case of ties, previous court decisions stands.
H. Written opinions:
1. Types:
a) unanimous: expresses opinion of all 9 Justices.
V.
b) majority: expresses opinion of majority
c) dissenting: expresses opinion of minority. If the Court later overturns itself, it may
draw upon a minority opinion for its reasoning
d) Concurring:written by a Justice who agrees with majority’s conclusions, but for
different reasons
2. Assigning of opinion
a) If Chief Justice voted with the majority, he assigns someone in the majority to
write the opinion
b) If the C.J. is the minority, the most senior Justice among the majority assigns the
opinion
3. Politics of opinion-writing
a) assigning the opinion is a key power of the CJ: it enable the CJ to get the right
“slant” on the issue
b) majority opinion writer must be careful not to alienate the others in the majority
4. Purposes of opinions
a) communicate the Court’s reasoning to the public
b) esta. precedents for future cases -- importance of stare decisis
c) drop “hints” that Congress, the state or the President should take certain actions
Possibility of evading Court decisions: The Supreme Court is the highest court in the land, but it is
possible of evading Court decisions:
A. Amending the Constitution​. The Court cannot strike down something as unconstitutional if it
is in the Constitution
B. The executive branch (Trail of tears) and state government (desegregation and school prayer)
may simply not carry out the decision.
Judicial Activism v. Judicial Restraint
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Judicial Activism
A. Philosophy that the courts should take an active role in solving social, economic, and
political problems
B. Examples of judicial activism:
1. Striking down a Texas law that banned flag burning in Texas v. Johnson
2. Striking down the Gun Free School Zone Act in US v. Lopez
3. Striking down the line item veto in Clinton v. NY
Judicial Restraint
A. Philosophy that the courts should allow the states and the other two branches of the
federal government to solve social, economic, and political problems.
B. Federal courts should act only in those situations where there are clear constitutional questions
C. Courts should merely interpret the law rather than make law. Suggests that ​courts should
follow original intent of the Founders​.
Historical Developments: Every side complains of judicial activism of the other
A. Prior to 1937, liberals complained about the conservative Court being too activist when it struck
down various reform-minded laws (e.g. minimum wage, banning child labor)
B. FDR responded with his “Court-packing” attempt in 1938 → failed
C. Now, it was the conservatives who began to complain about the liberal Court being too
activist, especially with the advent of the Warren Court (1954-69)
1. rights of the accused - Miranda warnings
2. civil rights - Brown v. Board
IV.
3. civil liberties - Prohibiting prayer in public school (Engle v. Vitale)
D. The ​Burger Court (1969-86)​ was less activist than the Warren Court, but still upset
conservatives with decisions such as ​Roe v. Wade and UC Regents v. Bakke​.
E. The Rehnquist Court (1986-2005) was accused by liberals of being too activist -- when it
overturns liberal precedents, liberals accuse the Court of being excessively activist, e.g.:
1. overturning Gun Free School Zones Act
2. overturning Florida Supreme Court decisions in election of 2000
3. overturning California’s Proposition 215 that legalized medical use of marijuana
Restraints on judicial power
A. Courts can make decisions, but cannot enforce them
B. Courts cannot reach out and take cases, but must wait for the cases to come to them
C. Courts can rule only on real, live controversies. They cannot “create” cases.
D. Presidential appointments of judges
E. Congress
1. Senate confirmation of judges
2. impeachment and removal
3. increasing the number of courts and judges
4. passing constitutional amendments
5. repassing a law that was unconstitutional in hopes that the Supreme Court will change
its mind
6. determining the jurisdiction of the courts
F. Stare decisis
G. Existing laws
H. The Constitution
I. Public opinion: The Supreme Court probably does not “follow the election returns” in the short
run because the Justices were appointed by previous Presidents for life terms. In the long run,
however, the Court will probably reflect public opinion because the Justices are appointed by
Presidents who were elected by the people.