THE JUDICIARY
BRANCH
TYPES OF LAW
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Common Law
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Judge-made law
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Stare Decisis
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“let the decision stand”
“to stand on decided cases”
Precedent
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Rules that have been created by judges through their decisions
Every state based law on English common law except Louisiana
Previous court rulings
Judges obligated to apply
Can be overturned
Equity
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Judges issue orders preventing possible damage or to direct that
some action be taken
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Injunctions, cease and desist orders, restraining orders
TYPES OF LAW
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Statutory Law
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Constitutional Law
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Interpretation and application of US Constitution and state
constitutions
Case Law
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Legislation passed by Congress, state legislators, or city councils
Public can create through initiative and referendum
Ruled by supremacy policy
Collective decisions of the courts and their inherent legal
meaning
Administrative Law
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Rules and regulations that are issued by federal bureaucratic
agencies
TYPES OF LAW
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Civil Law
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Disputes between two private parties
Monetary damages are usually the punishment
Criminal Law
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Crimes against society
Government is the enforcer of criminal law/plaintiff
Accused is defendant
Violations range from misdemeanors to felonies
Burden of proof greater than in Civil cases
Penalties include probation, fines, imprisonment, or
execution
Majority of criminal and civil cases violate state law
and therefore tried in state courts
PARTICIPANTS
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Litigants
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Plaintiff-party that brings case to court
Defendant-party accused of violation
In court to
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Right a perceived wrong
Change an existing law
Sue for damages
Challenge actions of gov’t and corp.
Standing to sue-sincere interest in case and be in
danger of suffering injury or harm from the other
party
Class Action suits-group of people sue representing
any person who sustained the same injuries in the
same situations
PARTICIPANTS
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Interest Groups
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Understand power of courts to make public policy
Seek out strong litigants and cases
File amicus curiae briefs-”friend of the court”
Lawyers
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Defend and prosecute individuals
Translate policies into legal terminology
Enforce and challenge existing
statutes/laws/precedents
Legal Services Corporation-federally funded to help
poor with legal representation
PARTICIPANTS
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Judges
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Center of process
Neutral umpires who weigh the facts of a case
and guarantee that a court hearing is fair to
all concerned parties
Background
Federal judges-lawyers, white males, politically
active, middle aged, upper class, and Protestant
 State court-practicing attorneys, law-school
professors, former members of state legislatures or
Congress, more representative of American
population
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ORGANIZATION
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Dual Court System
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State and local courts
Majority of cases
 Hierarchy
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Lowest level-municipal, district, county, and police courts
Superior or circuit court-trial court
Appellate court
State supreme court
Special courts
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Domestic relations, wills, and estates
ORGANIZATION
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Dual Court System
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Federal Courts/Constitutional Courts
Exercise powers given in Article III of the
Constitution
 District Courts, intermediate courts of appeals,
Court of International trade, Foreign Intelligence
Surveillance court, and the US Supreme Court
 Judges appointed for life
 Congress given power to constitute lower courts
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Court of Federal Claims & Tax Court
Judges have fixed terms
ORGANIZATION
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Jurisdiction
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Authority of the court to hear, try, and decide a case
Federal court jurisdiction
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Exclusive jurisdiction
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Constitutional interpretation, violations of federal law,
questions of admiralty or maritime law, where litigants are
the United States, a sovereign state, or a citizen of a state
suing another state
Cases involving an ambassador, federal crime, infringement
of a patent, copyright, or an act of Congress can only be
heard in federal court
Concurrent jurisdiction
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Cases that may be tried in either state or federal court
ORGANIZATION
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Selection of federal, state, and local judges
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President appoints all federal judges
Senate confirms with a majority vote
Most appointees are the same political ideology as the
president
Senatorial Courtesy-senators from the presidents
party have veto on judges from their state
Senate Judiciary Committee holds hearings on the
nominees
Federal judges have lifelong appointment, but can be
impeached and removed if found guilty of criminal
offenses
Those that retire at 65 and have served for 15 years
receive a full salary the rest of their lives
ORGANIZATION
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Selection of federal, state, and local
judges
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State and local judges are selected by election
for fixed terms, or appointment by the
governor or mayor
Missouri Plan-judge is first appointed for a
fixed term and then must gain voter approval
to stay in office
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About 25 states use this method
US DISTRICT COURT
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Federal trial courts
Handle majority of federal cases
Original jurisdiction
Handle both criminal and civil cases
94 district courts
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Grand juries
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Indict individuals after determining there is enough evidence to justify a
trial
Jury trials
Number of judges depends on population
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Each state has at least one
One in each territory
One to 27
Single judges typically hear cases
Voting rights and anti-trust cases have a three judge panel
US DISTRICT COURT
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Federal crimes
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Civil cases
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Tampering with mail, counterfeiting, interstate threat,
bank robbery, kidnapping, tax evasion, treason
US government named as a party
Bankruptcy
Key personnel
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Magistrates-appointed by judges to an 8 year term,
variety of duties including; issuing warrants and
setting bail
Bankruptcy judges
US attorneys-prosecutors for the government
US marshals-four year terms, concerned with arrest
procedures and implementation of judicial orders
US COURT OF APPEALS
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Designed to relieve the burden of Supreme Court cases
Most losing litigants appeal
13 courts
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US Court of Appeal for the Federal Circuit
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One in each of the 11 judicial circuits (regions)
One for the District of Columbia
Specializes in customs and patent appeals
Designed to accelerate appeals-National jurisdiction
Panel of three judges hear most cases
Do not retry cases, but review records of the lower court
proceedings and evaluate arguments about legal
questions raised
Can uphold the lower courts ruling, modify part of its
ruling or remand (send back) a case to the trial court for
additional review
Review about 55,000 cases a year
US COURT OF INTERNATIONAL
TRADE
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Established in 1890
Nine judges
Deals with disputes from tariff and trade
issues
Civil law
Heard in key port cities around the nation
US FOREIGN INTELLIGENCE
SURVEILLANCE COURT
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Established in 1978
Originally composed of 7 judges,
expanded to 11 judges by the Patriot Act
Hears requests from the FBI, National
Security Agency, and other intelligent
organizations for surveillance warrants to
investigate possible foreign subversives or
terrorist suspects
Proceedings held in secret
US SUPREME COURT
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Consists of nine members
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Chief Justice and 8 associate justices
Appointed for life by the president and
confirmed by the senate
Court of last resort on all questions of federal
law
Term lasts approximately 9 months from the
first Monday in October to the following June or
July
Cases not decided on in one term are carried
over to the next
Judicial Review
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Marbury v. Madison (1803)
US SUPREME COURT
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Original Jurisdiction
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Cases involving ambassadors of foreign
nations and when a state is party to a dispute
Few cases
Appellate jurisdiction
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Appealed from lower courts
8,000 to 9,000 filed each year
Court hears arguments and renders decisions
on only about 100
US SUPREME COURT
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How cases reach the court
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Disposed cases-those not containing
significant constitutional challenges and sent
back to the lower court or those that the
court agrees with
Rule of Four-Four of the nine justices must
agree to hear the case
Writ of Certiorari-”to be made more certain”
Order by the Court to send up the case record
because there is a claim that the lower court
mishandled the case
 90% after review are denied by the Court
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US SUPREME COURT
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Which cases are heard by the court
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Factors for acceptance
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Solicitor General
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Different rulings by lower courts, rulings in conflict with a
Supreme Court ruling, important constitutional or societal
implications, eminent domain, prominent individuals or
groups involved
Federal government’s attorney in the Supreme Court
Decision to appeal lower courts decision invites Courts review
Pauper Petitions
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Gideon v. Wainwright
No lawyer or bad court defenders
US SUPREME COURT
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How is a case decided
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About 3/4ths of cases decided without oral arguments
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Attorneys submit briefs that argue the cases merits or flaws
Each side is permitted half an hour to present its case orally and
answer questions from the justices
Justices meet in secret conference, discuss, and vote
Cases decided by simple majority
If the Chief Justice agrees with the decision, he writes the
Majority Opinion ( or assigns another justice)
If the Chief Justice does not agree, then the most senior
member in the majority writes the opinion
Concurring Opinions
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Court issues ruling in a per curiam (unsigned written) opinion that
explains decision
Written by other justices that agree with the decision, but not for
the same legal reasons
Dissenting Opinions
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Written by justices that do not agree with the majority and their
reasons why
US SUPREME COURT
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Opinions
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Actual Decision
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Set precedent
Any dissenting or minority opinions could be used in
future cases
Announced in open court
All decisions/opinions published in the United States
Reports
Implementation
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Lower courts are to follow
Government agencies must implement
Outright defiance is rare
Delay and evasion are more common strategies
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EVOLUTION OF SUPREME
COURT
Marshall Court
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Chief Justice John Marshall instituted the idea of
giving a single opinion for the entire court
Established the doctrine of judicial review
Improved the courts image
Built the judicial foundation for a powerful national
government
Ruled to protect private property and for a powerful
central govt in contrary to powerful state
Taney Court (1836-1864)
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Chief Justice Roger Taney developed the
constitutional basis for state police power
Could not resolve the slavery issue
Became infamous due to the Dred Scott decision
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EVOLUTION OF SUPREME
COURT
Reconstruction
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Court tried to overturn Congressional reconstruction
acts
Congress repealed its appellate jurisdiction and
reduced the size of the court to 7 members
President Grant reinstated the size to 9
Corporate Power (1875-1937)
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Court sympathetic to growth of corporate power
It limited national government and states’ regulatory
statutes
Conflicted with FDR’s plans for combating the
depression
Court packing threat
EVOLUTION OF SUPREME
COURT
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Warren Court (1953-1969)
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Dominated by liberal majority, led by Chief
Justice Earl Warren
Rulings benefited the disadvantaged,
strengthened civil liberties, changed the
nature of legislative reapportionment, and
called for the desegregation of southern
schools
Greatly expanded federal power at the
expense of states
EVOLUTION OF SUPREME
COURT
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Burger Court (1969-1986)
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Nixon appointed Warren Burger to replace the retiring
Warren along with three other justices
Court became increasingly conservative
However it became very supportive of women
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Roe v. Wade-abortion ruling
Ruled against laws that discriminated against women in the
workplace, but ruled against pregnancy as a temporary
disability or sick pay benefits
Required school busing to help desegregate the south
Upheld affirmative action
Ironically, forced Nixon to turn over secret tape
recordings that led to his resignation
EVOLUTION OF SUPREME
COURT
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Rehnquist Court (1986-2005)
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Even more conservative than Burger Court
Reagan appointed three justices, Bush Sr. appointed
two
Only two justices could be counted as liberal
Modified liberal decisions on the issues of criminal
rights, abortion, and affirmative action
Goal to limit congressional power over the states
After two Clinton appointments, Court became more
moderate
George W. Bush’s two appointments could swing the
court into a more conservative era
CONSTRAINTS
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President
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Congress
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Speak out against and refuse to implement
Impeach
Reject appointments
Increase number of judges
Constitutional amendments
Refuse to appropriate money needed to implement decisions
Public Opinion
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Aware of public opinion and changing political moods
Absence from media makes it the most respected of the three
branches
However, this support makes it easier for the court to rule in
favor of minority groups