Pump Primer
15
Assess the role of unelected courts and the
scope of judicial power in American
democracy
The Federal Courts
15
Video: The Big Picture
15
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Edwards_Ch15_The_Federal_Court
s_Seg1_v2.html
Learning Objectives
15.1
15.2
15
Identify the basic elements of the
American judicial system and the
major participants in it
Outline the structure of the federal
court system and the major
responsibilities of each component
Learning Objectives
15.3
15.4
15
Explain the process by which judges
and justices are nominated and
confirmed
Describe the backgrounds of judges
and justices and assess the impact
of background on their decisions
Learning Objectives
15.5
15.6
15
Outline the judicial process at the
Supreme Court level and assess the
major factors influencing decisions
and their implementation
Trace the Supreme Court’s use of
judicial review in major policy
battles in various eras of American
history
Learning Objectives
15.7
15
Assess the role of unelected courts
and the scope of judicial power in
American democracy
Biblical Integration
15
Assess the role of unelected courts and the
scope of judicial power in American
democracy
Video: The Basics
15
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg2_Judiciary_v2.html
Nature of the Judicial System
 Criminal Law
 Tort Law (Civil)
 Participants in the Judicial System
15.1
Criminal and Civil law
15.1
 Criminal Law
 The government charges an individual with
violating specific laws.
 Punishment for crimes against society (or
public order)
 Tort (Civil) Law
 Involves a dispute between two parties (one
of whom may be the government itself) over
a wide range of matters
Participants in the Judicial
System
 Litigants
Plaintiff - bring charges
Defendant - one being charged
Actual disputes, no hypothetical cases
Standing to sue - must be an injured party
Class action suits - a small group to sue on behalf of a
larger group
 Justifiable disputes – must be solvable by legal
methods





15.1
Participants in the Judicial
System
 Attorneys
Large profession; 1 million attorneys
Not only for the rich anymore
 Groups
Sometimes choose to represent a plaintiff to
test the constitutionality of a law
Amicus curiae briefs or “friend of the court”
 An attempt to get their point of view
across
15.1
Linda Brown
15.1
Linda Brown was
handpicked to be the
plaintiff in the famous
Brown v. Board of
Education case that
successfully
challenged the
constitutionality of
school segregation.
15.1 In which type of case can the
defendant receive imprisonment as a
punishment?
a. Criminal
b. Civil
c. Class action
d. All of the above
15.1
15.1 In which type of case can the
defendant receive imprisonment as a
punishment?
a. Criminal
b. Civil
c. Class action
d. All of the above
15.1
Structure of the Federal
Judicial System
 Constitutional Courts
 Legislative Courts
 District Courts
 Courts of Appeals
 Supreme Court
15.2
Structure of the Federal
Judicial System
15.2
 Constitutional Courts
 Article III courts created by Judiciary Act of
1789.
 Legislative Courts
 Article I courts created by Congress for
special purposes.
 Judges have fixed terms and lack protections
against removal or salary reductions.
FIGURE 15.1: Organization of the federal
court system
15.2
District Courts
15.2
 Organization and jurisdiction
91, at least one in each state
Judges per court 2-28 = Total 675
Original jurisdiction only
Hold trials and impanel juries
One judge, occasionally 3
2% of criminal cases; 1% of civil cases
• 309,000 cases in 2010
 Majority of cases involve state law and are tried in state courts






Courts of Appeals
15.2
 Review district court decisions
 Errors of procedure and law
 Don’t hear testimony or retry cases
 75% of 55,000 cases come from district
courts
 Review and enforce IRC orders
 12 circuits, serving at least 2 states
• 6-28 judges per circuit; 179 total
• 3 judges per case; en banc (by all the judges
of that court) occasionally
 Set precedent
FIGURE 15.2: The federal judicial circuits
15.2
Supreme Court
 Unique responsibilities
 Resolving conflicts among states
 Maintaining national supremacy in law
 Ensuring uniformity in interpretation
 Composition
 9 Justices
• 8 associate justices; 1 chief justice
15.2
Supreme Court
15.2
 Controls its docket
 Picks and chooses what cases it will hear
 Receives 10,000 appeals/year
• Most cases are appeals from lower federal
courts, some losers in state courts
 Only hears about 80 cases/year
 Appeals must involve a substantial federal
question
FIGURE 15.3: How cases reach the Supreme
Court
15.2
TABLE 15.1: Sources of full opinions in the
Supreme Court, 2010-2011
15.2
15.2 How many cases does the
Supreme Court hear per year?
a. 100
b. 50
c. 80
d. 10,000
15.2
15.2 How many cases does the
Supreme Court hear per year?
a. 100
b. 50
c. 80
d. 10,000
15.2
Politics of Judicial Selection
 Lower Courts
 Supreme Court
15.3
Lower Courts
15.3
 Senatorial courtesy
 Unwritten tradition for district court judgeships
 Senate does not confirm nominees opposed by
the senator of the president’s party from the
state in which the district court is
 DoJ and background checks
 President chooses from survivors of the
background check
 Nominee suggested by a senator is on the list,
the president must choose this person
 In effect makes the Senate both the
nominating and approving body
Lower Courts
 Politics of judicial selection
 Partisan divide growing
 Interest groups increasingly active
 Lobbying against candidates who don’t
share their ideology
15.3
Supreme Court
 Vacancies infrequent
 Some presidents never get to fill a position
 President nominates & Senate confirms
 Chief justice vacancy unique
 Elevate an associate justice or nominate
someone from outside the Court
 Senatorial courtesy not relevant
 Court justices do not serve in districts or
circuits
15.3
Supreme Court
 Partisan balance in Senate key
 Senate Judiciary Committee
• Confirmation process,
• Holding hearings - grills candidates on
their judicial philosophy and dissects
their past
• Highly political
• Filibuster
» To prevent confirmation
» Key to confirmation – president’s
party holding 60 seats = cloture
15.3
TABLE 15.2: Unsuccessful Supreme Court
nominees since 1900
15.3
Elena Kagan
Elena Kagan is the junior justice on the Court,
having been nominated by President Obama in
2010. As is typical in modern times, she was
confirmed by a vote along party lines
15.3
15.3 How is the chief justice chosen?
15.3
a. Voted on by the other 8 justices
b. The most senior justice gets the position
c. Nominated by president, confirmed by
Senate
d. Picked by the Senate Judiciary
Committee
15.3 How is the chief justice chosen?
15.3
a. Voted on by the other 8 justices
b. The most senior justice gets the position
c. Nominated by president, confirmed by
Senate
d. Picked by the Senate Judiciary
Committee
Backgrounds of Judges and
Justices
 Backgrounds
 Criteria for Selection
 Background Characteristics and
Policymaking
15.4
Backgrounds
 Criteria for Selection
 Competence
 Ethics
 Diversity
 Ideology – most important
 Not a legal requirement to be a lawyer
 Non-lawyer may not make it through
confirmation
15.4
Backgrounds
 Typical background
 White, male, lawyer
 Two African Americans
 Four women
 One Hispanic American
 Diversity v. ideology
 Older, 50s-60s
 Mostly Protestant
 12 Catholics – current court 6 Catholics
 Upper-middle class backgrounds
 Prominent lawyer or judge
15.4
Swearing in of Sonia Sotomayor
15.4
Sonia Sotomayor is
the first Hispanic
American to serve on
the Court.
As we can see, the
backgrounds of
federal judges are not
representative of
Americans
TABLE 15.3: Supreme Court justices, 2013
15.4
Criteria for Selection
15.4
 Geography
 Different regions of the country
 Not as important, other considerations are
more prominent today
 Religion
 Effort to have Jewish or Catholic Justice
 Ideology/partisanship
 Main criterion in use today
Background Characteristics
and Policymaking
15.4
 What presidents expect v. what they get
 Democratic expect nominees to turn the Court in
a liberal direction
 Republican expect nominees to move the Court in
a conservative direction
 Disappointed ¼ of the time
Background Characteristics
and Policymaking
15.4
 Diversity: More than a symbolic difference?
 Female judges are slightly more sympathetic to
charges of sexual discrimination
 African American judges are more sympathetic
to claims of racial discrimination
 Differences in judicial decision making can not be
attributed to any one characteristic, such as sex,
race, religion, or background
U.S. Supreme Court, 2013
(Front row L to R) Clarence Thomas, Antonino Scalia, John
Robert, Jr., Anthony Kennedy, Ruth Ginsberg
(Back row L to R) Sonia Sotomayor, Stephen Breyer, Samuel
Alito, Jr., Elena Kagan
15.4
15.4 What is the main criterion
presidents use to select judicial
nominees?
a. State where they are from
b. Religion
c. Race
d. Ideology
15.4
15.4 What is the main criterion
presidents use to select judicial
nominees?
a. State where they are from
b. Religion
c. Race
d. Ideology
15.4
Courts as Policymakers
 Accepting Cases
 Process of Decision Making
 Basis of Decisions
 Implementing Court Decisions
15.5
Accepting Cases
15.5
 First step in process
 10,000 appeals per year
 Justices meet in conference once a week
 Rely on law clerks to pass along the most interesting
cases
 Rule of four
 Four justices must vote in favor for a case to be heard
 Writ of certiorari
 Formal document that orders the lower court to send up a
record of the case for review
Accepting Cases
15.5
 Type of cases selected
 Civil liberties
 Discrepancies in interpretation of a law
 Solicitor general’s request
 Third ranking official in the DOJ
 In charge of the court appeals made by the
federal government.
 Decides what cases to appeal
 Review and modifies the briefs
 Represents the federal government before the
Supreme Court
 Submits amicus curiae (a-me-cus kūr-ree-i)
briefs
FIGURE 15.4: Obtaining space on the
Supreme Court’s docket
15.5
Process of Decision Making
 Oral arguments
 Briefs
 Amicus curiae briefs
 30 minutes for each side
 Opinion writing




Chief justice assigns opinion, if in majority
Explain legal reasoning
Concurring opinion
Dissenting opinion
15.5
William Rehnquist
15.5
FIGURE 15.5: Supreme Court’s decisionmaking process
15.5
Basis of Decisions
 Principle of stare decisis
 Respect for precedent
 Overturning precedent
15.5
Basis of Decisions
 Why do justices disagree?
 Ambiguity and vagueness
 Judicial philosophy
 Originalism
15.5
Video: Thinking Like a
Political Scientist
15.5
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg4_Judiciary_v2.html
Implementing Court Decisions
 Judicial implementation
 Interpreting population
 Implementing population
15.5
Virgil Hawkins
15.5
Implementing Court Decisions
 Judicial implementation
 Consumer population
15.5
15.5 What principle governs judicial
decision making?
a. Stare decisis
b. Ex post facto
c. Amicus curiae
d. Quid pro quo
15.5
15.5 What principle governs judicial
decision making?
a. Stare decisis
b. Ex post facto
c. Amicus curiae
d. Quid pro quo
15.5
Explore the Simulation: You
Are a Supreme Court Clerk
15.5
http://media.pearsoncmg.com/long/long_longman_media
_1/2013_mpsl_sim/simulation.html?simulaURL=10
Courts and Public Policy:
A Historical Review
 John Marshall and the Growth of Judicial
Review
 The “Nine Old Men”
 The Warren Court
 The Burger Court
 The Rehnquist and Roberts Courts
15.6
John Marshall and the Growth
of Judicial Review
 Marbury v. Madison (1803)
 Judicial review
 Court has power to interpret Constitution
15.6
Video: In Context
15.6
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg3_Judiciary_v2.html
The “Nine Old Men”
15.6
 Controversy over New Deal legislation
 Conservatives on Court did not want federal intervention
in economy
 Struck down FDR’s legislation
 FDR’s court-packing plan
 Get Congress to expand Court
 Congress refused
 “Switch in time that saved nine”
The Warren Court
 Most active Court




Chief Justice Earl Warren (1953-1969)
Brown was one of his first cases
Expanded rights of defendants
Prohibited school prayer
15.6
The Burger Court
 More conservative Court




Chief Justice Warren Burger
Roe v. Wade was one of its major decisions
Upheld affirmative action
Made Nixon turn over tapes
15.6
The Rehnquist and Roberts
Courts
 Even more conservative Courts





Chief Justice William Rehnquist
Conservative appointees dominate
Chief Justice John Roberts (2005)
Bush v. Gore (2000)
Highly activist conservative Court
15.6
15.6 What power of the Court was
established in Marbury v. Madison?
a. Control of its docket
b. Original jurisdiction
c. Judicial review
d. Affirmative action
15.6
15.6 What power of the Court was
established in Marbury v. Madison?
a. Control of its docket
b. Original jurisdiction
c. Judicial review
d. Affirmative action
15.6
Understanding the Courts
 Courts and Democracy
 Scope of Judicial Power
15.7
Courts and Democracy
 Where do courts fit in a democracy?
 Judges not elected
 Judges hard to remove
 Judges are from elite backgrounds
15.7
“Silent majority”
15.7
Courts and Democracy
 Not as insulated as it seems
 Framers relied on insulation
 Court does follow public opinion
15.7
Bilingual education
15.7
Scope of Judicial Power
 Are the courts too powerful?
 Judicial restraint
 Defer to legislatures
 Judicial activism
 Protect minorities
15.7
TABLE 15.4: Supreme Court rulings in which
federal statutes have been found
unconstitutional
15.7
Video: In the Real World
15.7
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Seg5_Judiciary_v2.html
15.7 Why could a powerful federal
15.7
judiciary be a problem in a
democracy?
a. Judges are unelected
b. Judges are appointed for life
c. Judges are usually from elite backgrounds
d. All of the above
15.7 Why could a powerful federal
15.7
judiciary be a problem in a
democracy?
a. Judges are unelected
b. Judges are appointed for life
c. Judges are usually from elite backgrounds
d. All of the above
Explore The Judiciary:
Who Are the Activist Judges?
15.7
http://media.pearsoncmg.com/long/long_edwards_mpslgi
a_16/pex/pex15.html
Discussion Questions
15
Why do we say that judges make policy?
How does the Supreme Court make policy?
Is the Court’s policymaking role a problem
in a democracy? Why or why not?
Video: So What?
15
http://media.pearsoncmg.com/ph/hss/SSA_SHARED_MED
IA_1/polisci/presidency/Edwards_Ch15_The_Federal_Court
s_Seg6_v2.html
Further Review:
On MyPoliSciLab
 Listen to the Chapter
 Study and Review the Flashcards
 Study and Review the Practice Tests
15