THE FEDERAL JUDICIARY
INTRODUCTION
• Foreign visitors are often
amazed at the power of
American judges.
• 1834: French aristocrat
Alexis de Tocqueville wrote:
“If I were asked where I place
the American aristocracy, I
should reply without
hesitation … that it occupies
the judicial bench and bar…
Scarcely any political
question arises in the United
States that is not resolved,
sooner or later, into a judicial
question.”
INTRODUCTION
• A century later, British
political scientist
Harold J. Laski
observed, “The respect
in which federal courts,
and above all, the
Supreme Court are
held is hardly
surpassed by the
influence they exert on
the life of the United
States.”
INTRODUCTION
• Why do judges play
such a central role in
our political life.
• Chief John Marshall in
1803 successfully
claimed for judges the
power of judicial
review, that is, the
power to authoritatively
interpret the
Constitution.
INTRODUCTION
• Justice Felix Frankfurter
suggested tersely: “ The
Supreme Court is the
Constitution.”
• Judges – and not those on
the Supreme Court – are
also asked to resolve
disputes involving billions
of dollars, decide conflicts
among competing interest
groups, supervise the
criminal justice system,
and make rules affecting
the lives of millions of
people.
INTRODUCTION
• Judges not only settle
legal conflicts but in
some cases have
overseen the operation
of schools, prisons,
mental hospitals, and
complex businesses.
• Sometimes they decide
the details of how these
institutions should be
run.
• Still, the scope and
nature of judicial power
limit the role of judges.
THE SCOPE OF JUDICIAL POWER
• The American judicial system rests on the adversary
system.
• A court of law is a neutral arena in which two parties
argue their differences and present their points of view
before an impartial arbiter.
• The adversary system is based on the fight theory, which
holds that arguing over law and evidence, which may or
may not arrive at the truth, guarantees fairness in the
judicial system.
• The adversary system thus imposes restraints on the
exercise and scope of judicial power.
THE SCOPE OF JUDICIAL POWER
• Judicial power is essentially passive and reactive.
• Judges cannot instigate cases.
• Also not all disputes are within the scope of judicial power.
• Judges decide only justiciable disputes – lawsuits that
grow out of actual controversies and are capable of
judicial resolution.
• Judges do not use their power unless there is a real case
or controversy.
• It is not enough for a judge merely to have a general
interest in a subject or to believe that a law is
unconstitutional.
THE SCOPE OF JUDICIAL POWER
• The party bringing a lawsuit (the plaintiff) must have
standing to sue; this means that the plaintiff must have
sustained or be in immediate danger of sustaining a direct
and personal injury.
• Plaintiffs may not raise hypothetical issues; they must
have a real dispute and opposing interests with another
party.
• Traditionally, individuals had to show actual monetary
damage in order to gain standing to sue.
• But in recent decades, the Supreme Court has granted
standing to individuals who claim nonmonetary injuries
that are shared by others.
THE SCOPE OF JUDICIAL POWER
• The Supreme Court has said that aesthetic and
environmental well-being are important factors in the
quality of life and the fact that environmental interests are
shared by many rather than a few does not make them
less deserving of legal protection.
• Individuals must still claim a personal injury – the
violation of a constitutional or other legal right – and show
a “personal stake in the outcome.”
• But they may now bring suits over environmental
damages, defective consumer products, and other
matters that affect interest groups and large numbers of
people.
THE SCOPE OF JUDICIAL POWER
• A related and
increasingly important
development is the sue
of class action suits, in
which a small number of
persons represent all
other people similarly
situated – a suit on
behalf of all students in a
university, for example,
or all persons who
smoke a particular brand
of cigarettes.
THE SCOPE OF JUDICIAL POWER
• These lawsuits may force
major changes in public
policy – governing, for
example, the operation of
prisons – and business
practices, such as
marketing of defective and
harmful products.
• In recent years, tobacco
companies, drug mfgs.,
and financial institutions
have confronted a series
of class action lawsuits
and have been ordered to
pay damages.
THE SCOPE OF FEDERAL POWER
• When individuals sue
• But only the govt., may
each other over a traffic
accident, for instance,
they file suits under civil
law and seek monetary
awards.
• The govt., may also
bring civil lawsuits
against individuals and
business.
prosecute individual
crimes, like carjacking,
as defined in state and
federal criminal law.
• Persons accused of
crimes are guaranteed
certain rights in the Bill
of Rights and must be
accorded the due
process of law.
• If convicted =
imprisonment or
sentenced to death.
THE SCOPE OF FEDERAL POWER
• Judges decide cases; they
• Prosecutors negotiate with
do not prosecute people
for allegedly committing
crimes.
• Prosecutors decide
whether to charge an
offence and which offense
to charge.
• They have largely
unreviewable discretion,
so long as they have
probable cause to believe
that the accused has
committed an offense.
the lawyers for
defendants and often
work out a plea bargain,
whereby defendants agree
to plead guilty to a lesser
charge to avoid having to
stand trial and face
sentence for a more
serious offense.
• Prosecutors also make
recommendations to
judges about what
sentences to impose.
THE SCOPE OF JUDICIAL POWER
• Federal Level: The job of
• U.S. attorneys serve four-
prosecution falls to the
Dept. of Justice: the
attorney general, the
solicitor general, the 94
U.S. attorneys, and some
1,200 assistant attorneys.
• The President, with the
consent of the Senate,
appoints a U.S. attorney
for each district court.
year terms but may be
dismissed by the President
at any time.
• These appts., are of great
interest to Senators, who
exercise significant
influence over the
selection process.
• Since U.S. attorneys are
almost always members of
the President’s political
party, it is customary to
resign if the opposition
party wins the WH.
THE SCOPE OF JUDICIAL POWER
• The attorney general, in consultation with the U. S.
attorney in each district, appoints assistant attorneys.
• Some districts only have one; the largest the Southern
District of New York, has more than 65.
• These attorneys, working with the U.S. attorney and
assisted by the FBI and other federal law enforcement
agencies, begin proceedings against those alleged to
have broken federal laws.
• They also represent the USA in civil suits.
THE SCOPE OF JUDICIAL POWER
• Courts cannot solve all
disputes.
• Some raise political
questions that would
require the use of
methods not suitable for
a court, for which there
is no legal remedy or
which the Const.,
explicitly assigns to
Congress or the
president to decide.
THE SCOPE OF JUDICIAL POWER
• Such is the case with
many questions arising
from foreign affairs:
• Which of two competing state
govts is the proper one?
• Which group of officials of a
state or foreign nation should
the USA recognize as the
govt.?
• When the President sends
the military into international
conflicts with congressional
authorization, has the
constitutional provision that
only Congress can “declare
war” been violated?
THE SCOPE OF JUDICIAL POWER
• The political question
doctrine is admittedly
circular, and the SC
ultimately decides what is
and is not a “political
question.”
• In 2000, for instance, most
observers thought that the
SC would refuse to allow
itself or the federal courts
to become involved in
deciding which votes from
FL should be counted in
the presidential election.
THE SCOPE OF JUDICIAL POWER
• There is hardly
anything more political
than a presidential
election.
• Also, the Const.,
specifically charges
Congress with the
responsibility for
counting electoral
votes.
THE SCOPE OF JUDICIAL POWER
• Nonetheless, the SC
accepted the case in
Bush v. Gore,
deliberated promptly,
and by a bare 5-4
majority stopped the
recount of votes.
• The four dissenters
contended that the
matter should have been
left to the political
branches to decide.
TYPES OF LAWS
• Statutory Law: Law that
comes from authoritative and
specific lawmaking sources,
primarily legislatures but also
including treaties and
executive orders.
• Common Law: Judge-made
law. The common law
continues to develop
according to the rule of stare
decisis, which means “let the
decision stand.” This is the
rule of precedent, which
implies that a rule
established by a court is to
be followed in similar cases.
• Equity Law: Law used
whenever common law
remedies are inadequate.
For example, if an injury
done to property may do
irreparable harm for which
money damages cannot
provide compensation, under
equity a person may ask the
judge to issue an injunction
ordering the offending person
not to take the threatened
action. If the wrongdoer
persists, he or she may be
punished for contempt of
court.
TYPES OF LAWS
• Const., Law:
• Administrative Law:
Statements interpreting
the Const., that have
been given SC approval.
• Admiralty and Maritime
Law: Law applicable to
cases concerning
shipping and waterway
commerce on the highs
seas and on the
navigable waters of the
USA.
Law relating to the
authority and procedures
of admin., agencies as
well as to the rules and
regulations issued by
agencies.
• Criminal Law: Law that
defines crimes against
the public order and
provides for punishment.
TYPES OF LAWS
• Civil Law: Law that
governs the relations
between individuals and
defines their legal rights.
However, the govt., can
also be a party to a civil
action. Under the
Sherman Antitrust Act,
for example, the federal
govt., may initiate civil as
well as criminal action to
prevent violations of law.
JUDICIAL FEDERALISM
JUDICIAL FEDERALISM
• Most countries have a unitary judicial system.
• But the USA has a dual judicial system of federal and
state courts.
• Along side of the federal judiciary, each state maintains a
judiciary of its own, and many municipalities have judicial
systems as complex as those of the states.
• Within both federal and state systems, judicial power is
further divided between trial courts and one or more levels
of appellate courts, which hear appeals from lower courts.
• The federal and state courts are related, but not in a
superior-inferior hierarchy.
JUDICIAL FEDERALISM
• State courts primarily
interpret and apply their
state constitutions and law.
• When their decisions are
based solely on state law,
their rulings may not be
appealed to or reviewed by
federal courts.
• Only decisions that raise a
federal question, involving
the application of the BofR
or other federal law, are
federal courts able to
review.
JUDICIAL FEDERALISM
• Fed., courts have writ of
habeas corpus
jurisdiction – the power
to release persons from
custody if a judge
determines that they are
not being detained
constitutionally – and
may review criminal
convictions in state
courts for violations of
the fed., constitutional
and legal rights of the
accused.
JUDICIAL FEDERALISM
• Other than the original
jurisdiction the Const.,
vests directly in the SC, no
federal court has any
jurisdiction except that
granted to it by an act of
Congress.
• Congress also determines
whether the judicial power
of the USA is exercised
exclusively by fed., courts
or concurrently by both
fed., and state courts.
JUDICIAL FEDERALISM
• Most litigation occurs in state courts, which annually face
tens of millions of civil and criminal cases.
• The type of litigation in state courts also tends to differ
from that in federal courts.
• Apart from criminal cases, the largest portion of state
court cases involves economic issues – state regulation of
public utilities, zoning and small business, labor relations,
natural resources, energy, and environment.
• Litigation varies from state to state depending on the size
of population, urbanization, and the economy.
JUDICIAL FEDERALISM:
MASSACHUSETTS COURTS
THE FEDERAL JUDICIAL SYSTEM
THE FEDERAL JUDICIAL SYSTEM
• Article III of the Constitution states: “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 establishment.”
• Courts created to carry out this judicial power are called
Article III or constitutional courts.
• Congress may also establish Article I or legislative
courts – courts, for instance, to handle bankruptcies and
veterans’ appeals – to carry out the legislative powers the
Const., has granted it.
THE FEDERAL JUDICIARY
• The main difference
between a constitutional
court and legislative
court is that the judge of
a legislative court need
to be appointed to “hold
their Offices during good
Behavior,” and may be
assigned other than
purely judicial duties,
such as supervising tax
collections.
• Constitutional court
judges basically have
lifetime appointments,
subject to removal by
impeachment.
• Only 11 federal judges
have been impeached
by the House of
Representatives.
• 7 have been convicted
and removed by the
Senate.
THE FEDERAL JUDICIARY
• The Const., requires a
SC.
• The SC is a necessity
of the national govt., is
to have the power to
make and enforce laws
that take precedence
over those of the
states.
THE FEDERAL JUDICIARY
• The lack of a SC to
maintain national
supremacy, ensure
uniform interpretation
of national legislation,
and resolve conflicts
between states was
one of the glaring
weaknesses of the
govt., under the
Articles of
Confederation.
THE FEDERAL JUDICIARY
• Congress decides whether there will be other courts in
addition to the SC.
• The First Congress, in the Judiciary Act of 1789, divided
the nation into circuits (geographical areas) and created
lower courts for each.
• Today the hierarchy of federal courts of general
jurisdiction consists of district courts, courts of appeals,
and the Supreme Court (refer to chart).
THE FEDERAL JUDICIARY
• In cases affecting ambassadors, other public ministers,
and consuls and in cases in which a state is a party, the
S.C., had original jurisdiction – the authority of a court
to hear a case “in the first instance.”
• In all other cases, the S.C., has appellate jurisdiction –
power to review decisions of other courts and agencies –
as determined by Congress.
• Of course, the S.C., has final word on the constitutionality
of laws passed by Congress.
JURISDICTION OF FEDERAL COURTS
• Fed., courts can hear and decide cases or controversies
in law and equity in the following circumstances:
• 1. If they arise under the Constitution, a federal law, or treaty.
• 2. If they arise under admiralty and maritime laws.
• 3. If they arise because of a dispute involving land claimed under
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titles granted by two or more states.
4. If the USA is a party to the case.
5. If a state is a party to the case (but not if the suit was begun or
prosecuted against a state by an individual or a foreign nation.)
6. If they are between citizens of different states (Congress has
chosen to limit this diversity jurisdiction of fed., courts to cases in
which the amount in controversy exceeds $50,000).
7.If the affect the accredited representatives of a foreign nation.
THE FEDERAL JUDICIARY: THE
DISTICT COURTS
THE FEDERAL JUDICIARY: THE
DISTRICT COURTS
• Although the SC
• Each state has at least
receives all the
attention, the
workhorses of the
federal judiciary are
the district courts.
• These courts hear
hundreds of thousand
civil cases and tens of
thousands of criminal
cases per year
one district court.
• Larger states have as
many as the demands
of judicial business
and the pressure of
politics demand.
• MA., has 2.
• RI has 1.
• No state has more
than 4.
THE FEDERAL JUDICIARY: THE
DISTRICT COURTS
• There are 665 judges in
94 district courts, located
in each of the 50 states,
the District of Columbia,
and Puerto Rico.
• Each federal circuit has
at least one district judge
but may have as many
as 99.
• MA. = 13
• RI = 3
THE FEDERAL JUDICIARY: THE
DISTRICT COURTS
• The district courts are
• Otherwise, district
the trial courts of original
jurisdiction.
• They are the only federal
courts that employ
grand juries and petit
juries.
• When cases tried
before district judges
involve citizens of
different states, judges
apply the appropriate
state laws.
judges are concerned
with federal laws.
• For example, they
decide cases involving
crimes against the USA
– suits under the
national revenue, postal,
patent, copyright,
trademark, bankruptcy,
and civil rights laws.
THE FEDERAL JUDICIARY: THE
COURTS OF APPEALS
THE FEDERAL JUDICIARY: THE
COURTS OF APPEALS
• The decisions of district courts may be appealed and
reviewed by federal courts of appeals, although
reapportionment and voting rights cases decided by three
judge panels are taken directly to the SC.
• Courts of Appeals are located in 11 judicial circuits that
include all states and U.S. territories.
• A 12th is located in the District of Columbia and hears the
largest number of cases challenging federal statutes,
regulations, and administrative decisions.
• The 13th appellate court is the Court of Appeals for the
Federal District, located in D.C. and has national
jurisdiction, though it primarily deals with appeals in
patent, copyright, and international trade cases.
THE FEDERAL JUDICIARY: THE
COURTS OF APPEALS
THE FEDERAL JUDICIARY: THE
COURTS OF APPEALS
• The largest circuit is the 9th, with 28 circuit judges and 99
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district judges.
It is geographically the size of Western Europe and
contains 20% of the U.S. population.
Each court of appeals consists of 6 to 28 permanent
judgeships (179 in all).
The First Circuit, which includes New England and Puerto
Rico has 8 judges.
These courts normally hear cases in panels of 3 judges.
But in especially important and controversial cases, all
judges may be present; that is, they sit en banc.
They annually hear more than 50,000 appeals.
THE FEDERAL JUDICIARY: THE
COURTS OF APPEALS
• Although the courts of appeals have only appellate
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jurisdiction, they are powerful policy makers.
Fewer than 1% of their decisions are appealed to the SC.
As the policy-making role of federal courts has become a
prominent political issue, more attention has been
focused on these courts and the judges who serve them.
One current controversy is the growing failure of appellate
courts to publish their opinions, due to their growing
caseloads, and whether published opinions are binding
precedents.
Another controversy revolves around whether the number
of judges should be increased to keep pace with rising
caseloads.
THE POLITICS OF APPOINTING
FEDERAL JUDGES
THE POLITICS OF APPOINTING
FEDERAL JUDGES
• The selection of federal judges has always been a
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significant part of the political process.
It makes a difference who serves on the federal courts. (?)
As the courts play an even more important role in the
political process and as more and more interests –
women, other minorities for example – participate in that
process, judicial selection politics has come front and
center on the political stage.
The President selects federal judges with the advice and
consent of the Senate.
Political reality imposes constraints on the president’s
discretion, so the selection of a federal judge is actually a
complex bargaining process.
THE POLITICS OF APPOINTING
FEDERAL JUDGES
• The principal figures
involved are the
candidates, president,
and the “subpresidency
for judicial selection,
consisting of key
members of DoJ, U.S.
senators, the ABA, party
leaders, and,
increasingly interest
groups.
• In addition, recent
presidents have inserted
the WH much more
directly into the process
than their predecessors
did.
• DoJ officials and key WH
staff meet often to
review proposed
candidates and present
recommendations to the
President.
THE POLITICS OF APPOINTING
FEDERAL JUDGES
• Before the WH submits
names of nominees for
federal judgeships, it
observes the practice of
senatorial courtesy –
the custom of submitting
the names of
prospective appointees
for approval to the
senators from the states
in which the appointees
are to work.
• Senatorial courtesy does
not extend to nominees
to the SC since they
have national
jurisdiction.
• Liberal and conservative
interest groups also play
a role in the selection
and confirmation of
federal judges. (?)
THE POLITICS OF APPOINTING
FEDERAL JUDGES
• President Obama has
appointed 173 federal
judges:
• 2 SC Justices (two women
– Justice Sotomayor and
Justice Kagan)
• 30 Courts of Appeals
• 141 District Courts
• 31 nominations are
awaiting Senate action.
• There are currently 15
vacancies on the Courts
of Appeals
• There are currently 55
vacancies on the District
Courts.
• There are 19 anticipated
vacancies during
President Obama’s
second term.
THE POLITICS OF APPOINTING
FEDERAL JUDGES
• Factors contributing to
the selection and
confirmation process:
• **The Role of Judicial
Philosophy: Key
questions:
• The Role of Party
• Does the nominee
• The Role of Gender
believe in judicial selfrestraint?
• Does the nominee
believe in judicial
activism?
• The answers to these
questions can derail a
nominee’s chances.
• The Role of Race
• The Role of Ideology
• The Role of Judicial
Philosophy
DO JUDGES MAKE LAW?
• Do judges make law?
• NH Justice Jeremiah
Smith said: “Do judges
make law? Course they
do. Made some myself.”
• Judges are not that
forthcoming about
making law.
• For many it is disturbing
that judges make law.
• Why?
DO JUDGES MAKE LAW?
• Many people equate a judge’s role with that of a referee
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because of their role in trials and the adversary system.
We expect referees to be impartial and disinterested,
treating both parties as equals.
We expect them to apply rules, not make them.
Laws are not made, however, in the same way as rules of
a sport, and therein lies the answer to our question.
Not only do judges make law, but they must!
Legislatures make law by enacting statues, but judges
must apply the statues to concrete situations.
Laws are written in broad language and terms.
Courts must judge their application in concrete cases.
DO JUDGES MAKE LAW?
• The problems of
interpreting and
applying laws are
intensified when
judges are required to
apply our 224 year old
Constitution.
• The Constitution is
written in full of
generalizations.
• Some examples:
• “unreasonable search
and seizures”
• “Commerce among
several states.”
• “due process of law.”
• “equal protection of the
laws.”
DO JUDGES MAKE LAW?
• Recourse to the intent of the framers or to
the words of the Const., may not help
judges facing cases involving multinational
corporations or the Internet.
• The framers could never foresee the
incredible advances the country would
make.
ADHERENCE TO PRECEDENT
ADHERENCE TO PRECEDENT
• Just because judges
make policy, they are not
free to do whatever they
wish.
• They are subject to a
variety of limits on what
they decide – some
imposed by the political
system.
• Some imposed by higher
courts and the legal
profession.
ADHERENCE TO PRECEDENCE
• Among these is the
policy of stare decisis –
the rule of precedent.
• Stare decisis pervades
our judicial system and
promotes certainty,
uniformity, and stability
in law.
• Judges are expected to
abide by previous
decisions of their own
courts and by rulings of
superior courts.
ADHERENCE TO PRECEDENT
• Although adherence to
precedent is the norm, it
is very restrictive.
• Judges may distinguish
between precedents
because of differences
in the context of cases,
and may questions of
law have conflicting
precedents that can be
used to support a
decision for either party.
ADHERENCE TO PRECEDENT
• The doctrine of stare
• Since 1789, the SC has
decisis is less controlling
in the field of
constitutional law.
• Because the Const., is
binding, the SC can
reverse a decision it no
longer wishes to follow,
as it has done hundreds
of times.
reversed 217 of its own
decisions.
• It has overturned more
than 160 acts of
Congress.
• More than 960 pieces of
state legislation and
state constitutional
provisions.
• And more than 115 city
ordinances.
THE SUPREME COURT AND HOW IT
OPERATES
THE SUPREME COURT AND HOW IT
OPERATES
• The Supreme Court’s term runs from the first Monday in
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October through the end of June.
The justices listen to oral arguments for two weeks from
October to April.
They then adjourn for two weeks to consider cases and to
write their opinions.
By agreement, six justices must participate in each
decision.
Cases are decided by a majority vote out of 9.
In the case of a tie, the decision of the lower courts is
sustained, although on rare occasions it may be reargued.
THE SUPREME COURT AND HOW IT
OPERATES
• The members of the current Supreme Court are:
• Chief Justice John Roberts
• Associate Justice Antonin Scalia
• Associate Justice Arthur M. Kennedy
• Associate Justice Clarence Thomas
• Associate Justice Ruth Bader Ginsburg
• Associate Justice Stephen G. Breyer, Jr.
• Associate Justice Samuel Alito, Jr.
• Associate Justice Sonia Sotomayor
• Associate Justice Elena Kagan
POWERS OF THE CHIEF JUSTICE
• The chief justice of the
SC., is appt., by the
president upon
confirmation by the
Senate.
• Yet because the CJ heads
the entire federal judiciary,
this method of appt., gives
him greater visibility than if
selected by rotation of
fellow justices.
• In the entire history of the
SC, all CJ’s have been
men.
THE POWERS OF THE CHIEF JUSTICE
• The CJ has special
administrative
responsibilities in
overseeing the operation
of the judiciary, such as
assigning judges to
committees, responding to
proposed legislation that
affects the judiciary, and
delivering the Annual
Report on the State of the
Judiciary.
• But within the SC, the CJ
is only “first among
equals,’ even though
periods in Court history are
often named after the chief
justice. (The Roberts
Court).
• The ability of the CJ to
influence the Court has
varied considerably.
• Like the presidency, the
amount of influence a CJ
would have depends on
the person holding the
office.
WHICH CASES REACH THE SUPREME
COURT
WHICH CASES REACH THE SUPREME
COURT
• When citizens vow to take their cases to the SC even if it
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costs their last penny, they underestimate the difficulty of
securing SC review and misunderstand the Court’s rule.
The rules for appealing a case are established by the SC
and Congress.
Until 1988, when Congress passed the Act to Improve
Administration of Justice, the SC was obliged by law to
review a large number of appeals.
Today, however, almost all appeals come to the Court by
means of a discretionary writs of certiorari, a formal
petition used to bring a case before the SC.
These petitions may be denied by the Court.
WHICH CASES REACH THE SUPREME
COURT
• Since the SC’s docket is
now largely discretionary, it
has the power to set its
own agenda and to select
which cases it wishes to
review.
• As a result, the justices
decide fewer than 100 of
the 9,000 cases appealed
to them annually.
• That is half the number of
cases decided annually
two decades ago.
WHICH CASES REACH THE SUPREME
COURT
• The crucial factor in determining
whether the SC reviews a case
is its importance to the operation
of the governmental system as a
whole.
• The SC will review a case only if
the claim involves a substantial
question of federal law that has
broad public significance – what
kinds of affirmative action
programs are permissible,
whether doctors have a right to
doctor-assisted suicide, other
what conditions women may
have an abortion, whether gays
can be married ect.
WHICH CASES REACH THE SUPREME
COURT
• The Court also tends to
review cases in which
rulings among the courts
of appeals are in conflict,
and by deciding a case,
the SC establishes
which ruling to follow.
• Or a case may raise a
constitutional issue on
which a state supreme
court has presented an
interpretation with which
the Court disagrees,
WHICH CASES REACH THE SUPREME
COURT
• The SC grants cases based on the rule of four.
• If four justices are sufficiently interested in a petition for a
writ of certiorari, it will be granted and the case brought up
for review.
• Denial of a writ of certiorari does not mean that the
justices agree with the decision of the lower court, nor
does it establish precedent.
• Refusal to grant a review may indicate all kinds of
possibilities.
• The justices may wish to avoid hot issues, or the SC may
be divided on an issue that is not yet prepared to take a
stand..
WHICH CASES REACH THE SUPREME
COURT
• The SC may want to let an issue “percolate” in the federal
courts so that the SC may benefit from their rulings before
it decides.
• The SC tends to take cases on which two or more
appellate courts have rendered conflicting rulings on an
issue, in order to resolve their conflict and to provide
uniformity to the law.
• After a case is granted review, each side prepares written
briefs presenting legal arguments, and historical
background for the justices and their law clerks to study
and on the basis of which to render their decisions.
THE ROLE OF THE U.S. GOVT., IN
SUPREME COURT CASES
THE ROLE OF THE U.S. GOVT., IN
SUPREME COURT CASES
• Attorneys on the DofJ
and from other fed.,
agencies participate in
more than half of that
the SC agrees to decide.
• Of special importance is
the solicitor general
(SG) who represents the
fed., govt., before the
SC.
• The current SG is
Donald Verrilli.
THE ROLE OF THE U.S. GOVT., IN
SUPREME COURT CASES
• When the SG petitions
the SC to review a
decision of a lower
court, the SC is likely
to do so.
• That is because no
appeal may be taken
on behalf of the US to
any appellate court
without the approval of
the SG.
THE ROLE OF THE U.S. GOVT., IN
SUPREME COURT CASES
• The SG also files amicus
curiae (“friend of the court)
briefs in cases in which
the govt., is not a party.
• This guarantees that the
DofJ is represented if a
suit questions the
constitutionality of an act
of Congress or the
executive branch.
• The SG may also use
these briefs to bring to the
SC’s attention of the
current administration.
THE ROLE OF THE U.S. GOVT., IN
SUPREME COURT CASES
• Individuals, interest groups, and organizations may also
file amicus curiae briefs if they claim to have an interest in
the case and to have information of value to the SC.
• An amicus curiae brief may help the justices by
presenting arguments or facts that the parties to the case
have not raised.
• In recent decades, interest groups have increasingly filed
amicus curiae briefs in an effort to influence the SC and to
counter the positions of the SG and the government.
• Interest groups may also issue amicus curiae briefs
before the SC grants a writ of certiorari in order to
encourage the SC to review the case.
HOW THE SUPREME COURT
DECIDES CASES
HOW THE SUPREME COURT
DECIDES CASES
• Once the justices receive briefs from each side, a case is
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set for oral arguments – usually in three to four months.
As a rule, counsel for each side is allowed 30 minutes to
present their case.
The entire process is informally forma.
Justices talk among themselves or consult briefs or books
during oral arguments.
Justices frequently interrupt lawyers to ask questions and
request additional information.
Hence the 30 minute limit is problematic, especially if the
SG participates, since his 10 minutes come out of the time
of the two parties before the court.
HOW THE SUPREME COURT
DECIDES CASES
• Once oral arguments are completed, the justices meet in
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private conference.
Each brings to the meeting a red leather book in which the
cases and the votes of the justices are recorded.
These conferences are held in secret.
They are usually a collegial but vigorous give-and-take.
The CJ presides, usually opening the discussion by stating the
facts, summarizing the questions, and suggesting how to
dispose of each case.
Each justice, in order of seniority, then gives his or her views
and conclusions.
Recently, the justices have not bothered with formal votes
because their votes are clear from their discussion of the case.
HOW THE SUPREME COURT
DECIDES CASES
• The SC announces and
explains its decisions in
opinions of the Court.
• Opinions generally state
the facts, present the
issues, and explain the
reasoning of the Court.
• These opinions are the
SC’s method of expressing
its views to the world.
• Their primary function is to
instruct judges of state and
federal courts how to
decide similar cases in the
future.
HOW THE SUPREME COURT
DECIDES CASES
• Opinions of the SC are delivered by a justice but do not
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reflect his or her thinking alone.
The opinions must explain the reasoning of the majority of
justices.
Consequently, opinions of the SC are negotiated
documents that require the author to compromise and at
times bargain with the other justices to attain agreement
on an opinion.
When voting with the majority the CJ decides who will
draft the opinion.
When the CJ is in the minority, the senior justice among
the majority makes the assignment.
HOW THE SUPREME COURT
DECIDES CASES
• A justice is free to write a
• If a justice agrees with
dissenting opinion.
• These opinions quite
common, as justices
hope that some day
these dissenting
opinions will command
the majority of the Court.
• (Justice John Harlan: In
Plessy v. Ferguson)
the majority on how the
case should be decided
but differs on the
reasoning, that justice
can write a concurrent
opinion.
• Writing the opinion of the
Court is difficult work.
• It must win the support
of at least 4 – and more
if possible – intelligent,
strong-willed persons
HOW THE SUPREME COURT
DECIDES CASES
• The two weapons justices
can use against their
colleagues are their votes
and the threat of writing a
dissenting opinion
attacking the majority’s
opinion.
• If the SC is closely divided,
one justice may be in a
position to demand that a
certain point or argument
be included in, or removed
from, the opinion of the
Court as the price of his or
her vote.
HOW THE SUPREME COURT
DECIDES CASES
• In the past, justices would
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read their opinions from the
bench on “opinion days.”
Now they give only brief
summaries of the decision
and opinions.
Copies are made available to
the press and public.
The opinions are published in
the official United States
Supreme Court Reports.
Since April 2003, opinions
have been available on the
SC’s website:
www.supremecourtus.gov.
WHAT HAPPENS AFTER THE COURT
DECIDES?
• Victory in the SC does not
• Decisions whose enforcement
necessarily mean that winning
parties get what they want.
• The SC does not implement its
own decisions.
• It remands the case, sending it
back to the lower court with
instructions to act in accordance
with it opinion.
• The lower court has
considerable leeway in
interpreting the SC’s mandate
as it disposes of the case.
requires only the action of a
federal agency usually become
effective immediately.
(Nixon/Tapes)
• The impact of a particular SC
ruling on the behavior of
individuals who are not
immediately parties to a lawsuit
is uncertain.
• The most important rulings
require a change in the behavior
of thousands of administrative
and elected officials.
• Some decision are simply
ignored. School Prayer/School
Desegregation)
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• An independent judiciary is one of the hallmarks of a free
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society.
As impartial dispensers of equal justice under the law, judges
should not be dependent on the executive, the legislature,
parties to a case, and the electorate.
But judicial independence encounters problems when a
democratic society decides to allow some judges to make
policy.
Perhaps in no other society do the people resort to litigation as
a means of making public policy as much as in the USA.
The involvement of courts in politics exposes the judiciary to
political criticism.
The SC has always been criticized for engaging in “judicial
legislation.”
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• Some people contend that the courts have a duty to
protect the interests of the public. (?)
• Defenders of this activist judicial role argue that if
Congress, the WH, and the state legislatures are unwilling
or unable to resolve pressing problems when people are
denied justice and their constitutional rights, then the
courts must address those problems.
• Critics of judicial activism argue that the federal courts in
their zeal to protect the people have become unhinged
from their political moorings in the political and
constitutional system.
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• Even if the courts
make the “right”
decisions, these critics
argue, it is not right for
them to take over the
legislative function of
elected
representatives.
• Courts should exercise
self-restraint.
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• Others claim that the
debate between judicial
activism and judicial
restraint oversimplifies
the choices.
• Judges, they argue,
should take a leadership
role in some areas but a
restrained role in others.
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• These critics stand with
CJ Harlan E. Stone who
argued that the courts
have a special duty to
intervene:
• 1. whenever legislation
restricts the political
process by which decisions
are made.
• 2. whenever legislation
restricts the rights of
minorities.
• 3. when guarantees of the
Bill of Rights are violated.
JUDICIAL POWER IN A
CONSTITUTIONAL DEMOCRACY
• In all other areas, the
political process should
be allowed to work, and
judges should not set
aside legislation or
interfere with
administrative agencies
merely because they
would prefer some other
policy or even some
other interpretation of
the Constitution.