Chapter 12
The Judiciary
Common Law Tradition
 Common law = judge-made law; originated in
England; derived from prevailing customs
 Precedent = court ruling bearing on
subsequent legal decisions in similar cases
 Emanates from stare decisis, or standing on
decided cases
 Precedents set by Supreme Court binding on
all lower courts; highest court in U.S.
Sources of American Law
 Constitutions
 United States Constitution
 State Constitutions
 Congressional Statutes
 Administrative regulations
 Case law = previous court decisions
Basic Judicial Requirements
 Jurisdiction (Article III, Section 1)
 Authority to hear and decide a case
 Federal question
 U.S. Constitution, treaties, federal law
 Diversity of citizenship
 Parties from different states or countries
 Standing to sue
 Sufficient state to justify bringing suit; party must
have been threatened by or suffered a harm as a
result of the action
 Justiciable controversy
 Real, substantial case; no hypotheticals
Federal Courts
 U.S. District Courts
 Trial courts of general jurisdiction
 94 total, at least one in each state
 U.S. Courts of Appeals
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13 total, regional jurisdiction
Appellate courts
Hears appeals from district courts
Panels of three or more judges
Supreme Court
9 justices
Number can be changed by Congress
Appointment process often highly politicized
Primarily an appellate court
Hears appeals from federal courts and highest
state courts
 Only deals with federal questions
 Writ of certiorari/rule of four (sur-shee-uhrah-ree, petition for review approved by 4
justices)
 Oral arguments
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Which Cases Reach the
Supreme Court?
a subjective process, but certain factors increase
a case’s chances
 Two lower courts are in
disagreement
 Lower court’s ruling conflicts with an
existing Supreme Court ruling
 Case has broad significance
 State court has decided a
substantial federal question
Which Cases Reach the
Supreme Court?
(cont.)
 Highest state court holds a federal
law invalid, or upholds a state law
that has been challenged as violating
a federal law
 Federal court holds an act of
Congress unconstitutional
 Solicitor general is pressuring the
Court to hear a case
Types of Court Decisions
 Discuss cases twice a week in
conference
 Opinions
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Unanimous = all agree
Majority = at least 5 agree
Concurring = support with qualification
Dissenting = disagrees with court ruling
 Affirm = court ruling is valid
 Reverse = void a court ruling
 Remand = send the case back
Selection of Federal Judges
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Appointed by the president
Confirmed by the Senate
Senatorial courtesy and district courts
Partisanship of court appointees
Senate Judiciary Committee hearings
Courts as Policymakers
 Our current court, p. 296
 Judicial review = power of the courts to
declare the laws of Congress and acts of
governmental officials unconstitutional
 Judicial activism = taking a broad view of the
Constitution and using judicial power to direct
policy towards a desired goal
 Judicial restraint = rarely using judicial
review and limiting judicial action in the policy
process
Checks on the Judiciary
 Executive checks
 Judicial implementation = court has no
enforcement power
 Appointments
 Legislative checks
 Appropriation of funds to carry out
rulings
 Constitutional amendments
 Amending laws to overturn court’s
rulings
Checks on the Judiciary,
(cont.)
 Public opinion
 Sometimes can ignore decisions
 Pressure for non-enforcement
 Influence judicial opinions
 Judicial self-restraint
 Tradition of restraint
 Narrow focus of judicial questions
 Political questions better decided by other
branches
 Stare decisis = following precedent
Discussion questions
1. What are the major sources of law in
the U.S.?
2. What would be the strengths and
weaknesses of electing justices?
3. What would our political system look
like if judicial review had been rejected?
4. Should federal judges engage in judicial
activism or judicial restraint?
5. Describe the checks on judicial power.
Hot Links to Selected
Internet Resources:
 Book’s Companion Site:
http://politicalscience.wadsworth.com/s
chmidtbrief2004
 Wadsworth’s Political Science Site:
http://politicalscience.wadsworth.com
 The Federal Judiciary:
http://www.uscourts.gov
 Supreme Court of the United States:
http://supremecourtus.gov
 FindLaw: http://www.findlaw.com