The Judicial Branch
Qualifications
• What makes a good Supreme Court Justice?
• Look in Article III of the Constitution. What
qualities does it list for justices?
• In Article II, Section 2, Clause 2, the
President is given the right to nominate
federal judges with the “advice and consent”
of the Senate. This means the closest thing to
a qualification for a judge is that he/she must
be able to be confirmed by the Senate.
Qualifications
• Why do you think the Founding Fathers did not
put any qualifications for Supreme Court
Justices in the Constitution?
What Makes a Good Supreme Court
Justice?
• In your table groups, designate one person to be the writer
• Create a chart with four qualities: “essential” (a judge must
have this qualification),“desirable” (not required, but good to
have), “undesirable” (no judge should have this quality),
“unnecessary” (irrelevant or not needed)
• Using the qualities listed, put each quality into one of the four
columns.
• MAKE SURE EVERYONE’S NAME IS ON THE CHART OR
YOU WILL NOT GET CREDIT!
• After finishing filling in your chart, create a personal
definition for what your group feels is a “qualified” justice
• You will be presenting your charts and qualities to the class.
What Makes a Good Supreme Court
Justice?
• Using the definitions from all the groups, let’s create a
class definition for a “qualified” justice.
• Judges in the Texas Courts are elected.
• Judges in the state’s two highest courts (Texas Supreme
Court for civil cases and Texas Court of Criminal Appeals
for criminal cases) must be U.S. citizens, at least 35 years
old, and have been a lawyer for at least 10 years.
• Do you think the US Supreme Court should also have
clear-cut qualifications? Why or why not?
• Do you think Supreme Court Justices should have to be
elected? Why or why not?
Recommending a Justice
• You are going to advise the President and recommend a
nominee to fill a vacancy in the U.S. Supreme Court
• Each group will get a different Judicial Biography
• Evaluate the backgrounds of your potential justices,
considering the qualities discussed before.
• The differences in profiles are small, so you will have to
weigh factors such as colleges and law schools attended,
legal careers outside the court system, gender, and
ethnicity.
• Each group is to select one of the people profiled in their
group and proceed to write justifications for their choice
using Memo to the President.
Actual Identify of the Profiles
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Chief Justice John Roberts
Justice John Paul Stevens
Justice Antonin Scalia
Justice Arthur Kennedy
Justice Clarence Thomas
Justice Ruth Bader Ginsberg
Justice Stephen Breyer
Justice Samuel Alito, Jr.
Justice Sonia Sotomayor
Retired Justice Sandra Day O’Connor
Retired Justice David Souter
Vocabulary to Know
• Jurisdiction: the power of a court to hear a case
• Original jurisdiction: a case begins in a court, being heard there
for the first time
• Appellate jurisdiction: a court can hear a case on appeal from a
lower court
• Concurrent jurisdiction: two or more courts have the right to
hear the same kind of case
• Exclusive jurisdiction: a court is the only court to have the right
to hear a case
• Civil case: no law is broken; a dispute over money, property,
rights, family law; a lawsuit
Vocabulary to Know
• Criminal case: a law is broken; someone is charged and will
be sentenced if convicted
• Felony: a criminal case where the punishment might include
a prison sentence
• Misdemeanor: a criminal case where the punishment is by
fine alone or time in jail
• Discretionary jurisdiction: a court is not required to hear
a case, but may do so if it chooses
• Mandatory jurisdiction: a court is required to hear a case
Vocabulary to Know
• Probate case: a case dealing with wills or
estates
• Juvenile: in Texas law, anyone age 16 and
under at the time a crime is committed; if a
serious crime is committed by a juvenile
(murder, rape, armed robbery) a hearing can be
held to certify the juvenile to stand trial as an
adult.
Federal Courts vs State Courts
• Federal:
▫ Most of the Supreme Court’s jurisdiction is
on appeal. Occasionally one state may sue
another and the Supreme Court will be the
first (and only) court to hear the case. Such
cases rarely occur.
Federal Courts Vs. State Courts
• State:
▫ In civil cases, several courts (Justice of the Peace, County, and
District) share jurisdiction in matters where the value in question is
between $200 and $10,000. This is called concurrent jurisdiction.
▫ The District Courts do not hear any cases on appeal.
• Texas splits jurisdiction over civil and criminal matters at the
highest court level: the Texas Supreme Court is the highest court
for civil cases and the Texas Court of Criminal Appeals is the
highest court for criminal cases.
• If a case is lost in either of these courts and involves an issue
under the U.S. Constitution, it can be appealed to the U.S.
Supreme Court. The U.S. Supreme Court can then decide
whether or not it wants to hear the case, but it is not required to
hear all of the cases that are appealed to it. On average, the Court
hears only 1 to 2% of cases sent to it.
Discuss at Your Table Groups
• The structure of both the federal and state
judicial branches determines jurisdiction
and function.
• - How are federal and state judges selected?
- What courts exist at the federal level and
what kind of cases are heard in each court?
- What courts exist at the state level and what
kind of cases are heard in each court?
Hamilton Quote
• Alexander Hamilton, writing in No. 78 of
The Federalist Papers, described the
Supreme Court as the “least dangerous”
of the three branches of the federal
government. Former Chief Justice
William Rehnquist wrote, “It has most
assuredly proved,” to be the “least
understood of the three branches.”
• What do you feel this means?
Separation of Powers
• What are the 3 branches of the government?
• Why do we have the powers separate with a
system of checks and balances?
• Why is this important?
Article III
• Article III:
▫ Section 1. 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 judges, both of the
supreme and inferior courts, shall hold their offices during good
behavior…
▫ Section 2. The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States, and
treaties made, or which shall be made, under their authority…
▫ In all cases affecting ambassadors, other public ministers and consuls,
and those in which a state shall be party, the Supreme Court shall have
original jurisdiction. In all the other cases before mentioned, the
Supreme Court shall have appellate jurisdiction…
• The details of the judicial branch are left up to Congress and this led
to a conflict between the branches early in our history.)
Marbury v. Madison
• When this case reached the Court for a decision,
the Supreme Court had not had heard very many
cases and was unsure of its exact power.
• The first Chief Justice, John Jay, managed to
serve as ambassador to Great Britain at the same
time.
Marbury v. Madison Decision
• The words of John Marshall on the duty of the court
to say what the law means and gave the Supreme
Court (and other federal courts) the power of
judicial review, or the ability to examine actions of
the other to branches to determine if they are
allowed under the Constitution.
• He infers this power for the Court from its power to
hear cases arising under the Constitution.
• When this case was over, the Supreme Court took its
place as a co-equal branch of government.
The First Amendment
• What rights are guaranteed by the First
Amendment?
• Are these rights absolute or should there be
limits on them at times?
▫ Rights have to be balanced against other rights.
Examples might include falsely shouting “fire” in
a crowded gymnasium; television cameras
intruding on the decorum of a trial; people
attempting to block traffic as part of a protest or
having a noisy demonstration outside the
windows of a school
Schenck v. United States
• This case involves alleged interference with the
draft in World War I.
• Remember many in America viewed the struggle
going on in Europe as Europe’s affair. The
decision to enter the war was not universally
supported.
• Espionage Act.
▫ Is it a fair to place a limitation on protest because
of wartime conditions?
Judicial Philosophy
• Judicial restraint: a belief that the courts should
defer to the actions of the legislative and
executive branches except in cases where those
actions are clearly unconstitutional
• Judicial activism: a belief that the courts are the
best branch for defending individual rights and
have an obligation to make decisions that set
new rules when the legislative and executive
branches have acted unfairly
Schenck v. US Decision
• From this case came two schools of thought on
protections of the Bill of Rights
• An “absolute test,” that the Constitution means
to tolerate no interference by government with
the people's freedoms, “absolutely none,” citing
the opening words of the First Amendment:
Congress shall make NO law…”
• The “balancing test,” which suggests that the
rights of the people to exercise their freedoms
had to be “balanced” against “compelling public
necessity.”
The First Amendment and Schools
• Mary Beth and John Tinker, seen in the
second photo, wore their black armbands to
school in Des Moines, Iowa, and were
suspended for doing so. Their parents sued
the Des Moines schools and the case went all
the way to the Supreme Court.
• They are just one example of many cases
involving the rights of students in public
schools. The lesson today will focus on four
First Amendment cases involving the rights
of students.
The First Amendment and Schools
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Each group will be assigned one of the cases
You will become the “expert” on that case
You will present your cases to the class
Make sure to tell us:
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Who
When
Where
Why
District of Columbia, et al, v. Dick
Anthony Heller
• On a separate sheet of paper, write what you
would decide on this case if you were a Supreme
Court Justice
• We will be comparing with the actual decision in
a few minutes
Miranda Rights
• What do you think your Miranda Rights are?
5th Amendment
• No person…shall be compelled in any criminal case to be a
witness against himself…
• At the time of Miranda’s case, there was confusion as to when
this right applied. For certain it covered interrogations under
oath (swear to tell the truth, the whole truth, and nothing but
the truth…) such as testimony in court or before a grand jury,
but whether someone had the right to remain silent at the
police station was not clear.
• Protection against self-incrimination applies only to
criminal cases. Someone brought to court in a civil case can
be made to testify. OJ Simpson could not be forced to take the
stand in his criminal murder trial in 1995, but in a later civil
trial for wrongful death, he did have to testify.
6th Amendment
• In all criminal prosecutions, the accused shall have the right…to
have the assistance of counsel for his defense.
• Again, at the time of Miranda’s case, this right was known to apply
to the courtroom, but whether it applied at the police station was
unclear.
• At the time of Miranda’s confession, there was no set standard
for explaining rights to a suspect.
• The warning of rights varied in law enforcement agencies
around the country, and sometimes is varied from suspect to
suspect within an agency. Since such a warning was not set, people
did not hear their rights being read on television crime shows or in
movies.
Group Work
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You are going to be put into groups, with each group responsible for certain information:
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Facts group – Explain what happened in the case. Who was Miranda? What was his crime?
What exactly was read to him at the time of his confession about his rights? What right was
missing from this?
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Issue group – There are two constitutional amendments involved in this case, the Fifth
Amendment and the Sixth Amendment. Formulate the constitutional issue for the case.
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Arguments for Miranda group – Give reasons why Miranda believed his rights had been
violated when his confession was obtained
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Arguments for Arizona group – Give reasons why Arizona believed they had acted correctly in
obtaining Miranda’s confession.
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Decision group – Explain what the Supreme Court decided in this case, covering the
following points about the decision: What was the vote in the case? Could Arizona use
Miranda’s confession against him? What changed about the application of the Fifth
Amendment’s protection against self-incrimination as a result of the decision? If a suspect
decides he wants to answer police questions, who has the burden of proof that the suspect
knew and understood his rights at the time of the confession? What rights must be read to
suspects before interrogation as a result of this case?
Judicial Activism
• Do you think judicial activism is a good thing or
a bad thing? Why?
Brown vs. Board of Education of
Tokpeka
• What is “separate but equal” mean?
• Plessy vs. Ferguson (1896)
▫ Laws requiring racial discrimination in public
places is acceptable as long as the facilities are
“separate but equal”
Brown vs. Board
• 1951 – class action suit against Board of
Education of Topeka, Kansas
▫ Thirteen Topeka parents on the behalf of their
twenty children
• Suit called for school district to reverse its policy
of racial segregation
▫ 1879 law permitted schools to maintain separate
elementary schools for black and white students
• Who was involved
• What constitutional question was asked
• Do you agree with the court’s decision?