JUDICIARY
Two Court Systems in the United
States (Judicial Federalism)
A. Federal Judiciary System
B. 50 State Judiciary Systems
 Majority of cases heard in state
system
Dual Sovereignty Doctrine
• State and federal authorities can prosecute
the same person for the same conduct.
• DOES NOT violate the double jeopardy
portion of the 5th Amendment because the
person is technically being tried for two
different crimes, one at the federal level and
one at the state level.
FEDERAL COURTS (Created
under Articles III and I)
Two types of Federal Courts
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Constitutional Courts:
Article III
Supreme Court
District Courts (94)
Courts of Appeals (13)
Court of International Trade
Legislative (Special) Courts:
Article I
Specialized purpose
Created by Congress
Fixed terms
Court of Military Appeals, Court of Claims, and Tax
Court
Constitutional Courts
Courts created under Article III:
• US Supreme Court
• US District Courts
• Courts of Appeals
• Court of International trade
Significant SCOTUS Chief Justices
John Marshall (1801-1835)
• (Marbury v Madison) Judicial Review:
• 1800 Election: Jefferson beat Adams
• Secretary of State Marshall did not deliver all the
appointments (incl. Marbury). Left it to Madison (new
SOS) to do it
• Madison refused and Marbury sued and brought case to
Supreme Court directly under Judiciary Act of 1789
• SC said Jefferson was wrong not to deliver
appointments, but the Judiciary Act of 1789
contradicted separation of powers and the Supreme
Court did not have the power to require commissions to
be delivered
Nine Old Men
• Conservatives on SC viewed government
intervention in the economy as unconstitutional
• Ruled National Industrial Recovery Act as
unconstitutional via Schechter Poultry Corporation
v. United States b/c it regulated business that was
not interstate.
• Court Packing: FDR wanted to add a justice for
every justice over the age of 70
• Congress did not act on this
• A conservative justice, Owen Roberts, started
changing his votes (“switch in time that saved nine”)
Warren Court (1953-1969)
• Very liberal court
• Brown v. Board of Education: segregation in public
schools is unconstitutional
• Griswold v. Connecticut: General right to privacy
• Engel v. Vitale: public schools cannot have official
prayer
• Abington School District v. Schempp: public
schools cannot have mandatory Bible readings
• Mapp v Ohio: many guarantees of the Bill of Rights
apply to the states
• Miranda v. Arizona: have to be advised of rights
• Gideon v. Wainwright: Right of retaining a court
appointed attorney for those too poor to pay for one
Burger Court (1969-1986)
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Narrowed defendants’ rights
Conservative Court, but….
Roe v. Wade: right of privacy/abortion
United Steel Workers of America v.
Weber (1979): Upheld affirmative action
• United States v. Nixon(1974): Executive
privilege is limited
Rehnquist Court (1986-2005)
• Very conservative
• “The Lone Ranger”– often the only dissenter during
the Burger Court
• Federalism Doctrine: States’ rights should be
respected
• Bush v. Gore (2000)—very active/interventionist
court
John Roberts (2005- present)
• 5-4 split on the court currently. (Some say
4-4-1 split)
Supreme Court
Only federal court that has both original and
appellate jurisdiction (overwhelming majority
of its cases are appeals)
A. Federal CourtsConstitutional Courts:
Supreme Court:
Judicial Review
• Supreme Court can declare laws
unconstitutional
• Marbury v. Madison
• Dred Scott (1857): Missouri Compromise
unconstitutional;Slaves are property, not
citizens
A. Federal CourtsConstitutional Courts: Supreme Court:
Original Jurisdiction
• Case originates in Supreme Court
• “Special Master” appointed to hear case and
to recommend decision
• Only 2 or 3 cases a year
• Involves:
Two or more states
United States and a state
Foreign ambassadors and other diplomats
State and citizen of another state (if begun by
a state)
A. Federal CourtsConstitutional Courts: Supreme Court:
Appellate Jurisdiction
• Appeals from lower federal and state courts
• Must have standing to sue:
Personal injury
Not hypothetical
Other appeals exhausted
Not moot: still relevant
Ripeness
Justiciable disputes: capable of being settled as
a matter of law rather than on other grounds as
is commonly the case in legislative bodies
B. Federal CourtsConstitutional Courts:
U.S. District Courts
• 94 (Number of courts depends on size of state)
• At least one judge per court (most cases heard by only
one judge)
• Voting rights and redistricting cases are heard by
more than one judge
• Judge presides over case with or without juries
• U.S. Attorney:
 1/district
 Nominated by president, confirmed by Senate
 Serve at discretion of president
 Prosecute violations of federal law and represent US
government in civil cases
B. Federal CourtsConstitutional Courts:
U.S. District Courts
• “80% of federal cases that come before federal
judges are tried in federal district courts”
• Hear both civil and criminal cases
• Original jurisdiction—does not hear appeals
• US Attorney: 1/district; nominated by president
B. Federal CourtsConstitutional Courts:
U.S. District Courts :
Original Jurisdiction
• Federal Crimes
• Civil Suits under federal law
• Civil suits between citizens of different
states (greater than $50,000)
• Admiralty and maritime disputes
• Bankruptcy
• Federal administrative agencies’ actions
• Other matters assigned by Congress
C. Federal CourtsConstitutional Courts:
Courts of Appeals
• 13 circuits
• Regional courts hearing appeals from their
circuit
• Cases heard by panel of three judges
• Over 50,000 cases a year
• “Gatekeepers” to the Supreme Court
• Created to relieve Supreme Court of hearing
most appeals
• Appellate/not original jurisdiction
D. Federal CourtsConstitutional Courts:
Court of International Trade
• Nine judges
• Civil cases arising from tariff and other
trade-related laws
Legislative Courts
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Created by Congress for specialized purposes
United States Court of Military Appeals
Federal Bankruptcy courts
Judges do not hold lifetime appointments
Selecting Judges
• Nominated by President
• Senate Confirmation
• Senatorial Courtesy/Blue Slips: nominees are not
confirmed if opposed by a senator of the president’s
party from the state of the nominee’s residence
• Litmus Test
• From FDR to Bush, every president has appointed
over 90% of lower federal court judges from his own
party
• Federal constitutional judges appointed for life
• Supreme Court justices are “as independent as hogs
on ice”
Constitutional Approaches
Strict-Constructionist (Judicial Restraint):
• Judges should stick to what is “stated or clearly
implied” in Constitution
• Before 1937, liberals objected to judges interpreting
the due process clauses of 5th and 14th amendments
to strike down laws passed to protect labor and
women and to keep national governments regulated;
people have freedom to contract to work as many
hours as they want; federal government cannot
overreach its authority to strike down state laws
• By the time of Nixon, tend to be conservative due to
issues of abortion, prayers in public school, capital
punishment and not hindering law enforcement
Constitutional Approaches
Activist (Judicial Activism): Interpret
Constitution based on general principles
• Tend to be liberal today, but not always….
• Some conservatives favor activism because:
They want to reverse precedents on civil rights
and protect property rights from government
regulation
• Some liberals favor restraint because:
They believe democratic self-governance will
do better when judges stay out of policy
debates
Jurisdiction of Federal Courts
Federal-Question Cases:
Arising under the Constitution
US laws
Treaties
Diversity Cases:
Citizens of different states
How does the Supreme Court decide what cases to hear?
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Rule of 4: at least four judges must agree that
the Court should hear a case
Writ of Certiorari: order made by the Supreme
Court to a lower court, requesting the records
of a particular trial for its review.
If a writ is granted, lower court send transcript
of case to the Supreme Court
How does the Supreme Court decide what cases to hear?
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If the writ is denied, decision of lower court
stands, but this does not set precedent (court
might be too divided on issue or it is a
“political hot potato”)
Justices only hear 100/8,000 cases appealed
to them
The vast majority of cases come from State
courts of last resort (state high courts) and
federal appellate courts.
How does the Supreme Court decide what cases to
hear?
The appeal is heard based on the following criteria:
1) If a court has made a decision that conflicts
with precedent.
2) If a court has come up with a new question.
3) If one court of appeals has made a decision
that conflicts with another.
4) If there are other inconsistencies between
courts of different states.
How does the Supreme Court decide what cases to
hear?
The appeal is heard based on the following criteria:
5) If there is a split decision in the courts of
appeals.
6) Highest court has either supported an
unconstitutional state law or determined a
federal or state law is unconstitutional
At the Supreme Court
• First Monday in October through end of June
• Listen to oral arguments two weeks each month from
October to April
• Adjourn for two weeks to write opinions
• Six justices must participate in each case (by
agreement not by law)
• If there is a tie, decision of lower court stands, but very
rarely, the case is retried
• Take seats at 10am by seniority, Chief Justice in
center
• Each side speaks for only 30 minutes (given 5 minute
warning
At the Supreme Court
• Briefs: written documents supporting case submitted
before oral arguments
• Amicus Curiae Briefs: “friends of the court” (interested
parties, interest groups) may submit briefs if given
permission
• Oral Arguments
• Conference: justices meet in secret to discuss case
• Majority opinion (Opinion of the Court): chief justice
selects who writes opinion if he is in majority;
otherwise senior justice decides
• Drafts are circulated until a majority agree with it
At the Supreme Court
• Per Curiam Opinions- short, unsigned opinions.
Most of the time these will be unanimous
decisions that require minimal explanation. DO
NOT HAVE TO BE UNANIMOUS.
• Dissenting opinions: “an appeal to the brooding
spirit of the law, to the intelligence of a later
day”—CJ Charles Evan Hughes
• Concurring opinions
Solicitor General: represents USA in all cases
in which it is a party
Enforcement of Supreme Court Decisions
• Decisions are remanded (sent back) to lower
court with instructions
• If decision involves federal agency, the action is
usually very quick
• Difficult to change behavior of administrative
and elected officials (e.g., prayer in schools,
desegregation)
• Most difficult to enforce when many different
agencies or people are involved (e.g., new rules
on warrantless searches) because it takes a
long time for decision to filter down
Factors Constraining Federal Judges
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Constitution
Precedent (stare decisis)
Statutory law
Legal thought as found in books and law
reviews
Opinions of other courts
Interest groups
Public opinion
Media opinion
Factors Constraining Federal Judges
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Views of colleagues
Views of law clerks
Contemporary events and social environment
Traditions of the law
Actions of the legislature, past and future
Actions of the executive, past and future
Limitations of time and staffing
Financial constraints on
getting to Federal Court
• In forma pauperis: without funds
• Fee shifting: plaintiff collects its costs
from defendant if defendant loses
Non-Financial constraints on
getting into federal court
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Standing
Real controversy
Actual damage or harm
Not just being a taxpayer
Sovereign Immunity (Government
must consent to be sued)
State Courts
• Interpret state laws
• Cannot rule on federal laws