THE JUDICIARY
Co-equal branch of the federal government
because it has policy making power
Original Intent was -
Likely not the intent of the Founders
More a watchdog
than policymaker
John Marshall
4th Chief Justice of the United States (1801-1835)
JUDICIAL REVIEW
-Implied but not stated in Article III
-Allows courts to rule on the constitutionality
of laws and actions- giving them the power to
strike down or re-enforce policy, not just apply
and interpret it.
Judicial Review makes the US system unique
Starting with Marbury v. Madison and subsequent cases over the next 35 years, Marshall establishes the courts
as a coequal branch of the federal government, and helps to make the federal government sovereign of the states.
writs of mandamus are a power of the US courts not because of the Judiciary Act of 1789 but because of the concept
of judicial review
Importance of precedence
stare decisis- let the decision stand is the
first standard of appellate interpretation
The USA has several types of law as the basis for its legal system
1. Common Law
2. Statute Law – enacted by Congress
3. Administrative Law- from regulation and adjudicatory power given to federal agencies
4. Constitutional law – based on interpretation of the Constitutions
JURISDICTION: power to apply and interpret legal power
ORIGINAL JURISDICTION: court case must first begin in this court.
APPELLATE JURISDICTION: court which rules on the proper application of the law
or if the process and procedures were correctly done
Structure of the Federal
Court System
UNITED STATES FEDERAL COURT SYSTEM
*
•these are known as legislative courts , which do not have the protections of Article III = the constitutional courts
also note, if a state court case involves the interpretation of a US Constitutional question, it enters at the
US Circuit Court of Appeals. (SCOTUS can even issue a writ of certiorari and take up the question from a
state court.)
=12
PARTICIPANTS IN THE JUDICIAL SYSTEM:
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judge
litigants
lawyers
jury
audience: media; interest groups; the public
LITIGANTS: plaintiff – bringing charges, seeking “justice”
defendant – one being charged
Criminal law = violations, injury, harm against society
violation of a specific law - imprisonment and or fines will result from conviction
Civil law = accusation of a violation of one’s rights by another. Person vs. Person
finding against or conviction results in payment for compensation. To sue : tort
Hennessy v. Franzinger (2014) - civil case regarding an alienation of affection
United States v. Booth (1865) – criminal case involving the assassination of Abraham Lincoln
Basic criterion to bring a lawsuit is called STANDING
- there are real people involved
- there must be a real controversy involved between the parties
- there must be real harm
broadening of the notion of standing has come to make possible CLASS ACTION SUITS
a single individual or small group can represent all others similarly suited
in 1954, nine year old Linda Brown represented all black students from several school districts
around the USA suing re: discrimination in public education. Brown v. Board of Education of Topeka
Courts have imposed requirements on those seeking financial compensation thru class action suits:
1. required to make a significant effort to contact all similarly situated
- seen the TV commercials: “Have you been harmed by the use of the Acme widget?!”
“Call Dewey, Cheetam, and Howe at 800-555-5555”
2. tort reform legislation – against “frivolous” lawsuits
Liebeck v. McDonald’s Corporation
LAWYERS - advocates for the contending parties.
litigators – lawyers who actually argue the case in the court before a jury/judge
prosecutors – in criminal cases, lawyers for the government
solicitor general – advocates for the US government before SCOTUS
US Attorney - chief prosecutor for the US for a district court (94)
Assistant US Attorneys – arguing most of the cases
when the US is sued - these also serve as defense lawyers
Public Defenders – appointed for the indigent
Gideon v. Wainwright (1964)
The JURY:
grand jury: two dozen or more citizens who hear prosecutory charges
issue an indictment: formal accusation and call to trial
petit jury (trial jury): 12 citizens who hear evidence and arguments
decide to acquit or to convict
voir dire: the process done by lawyers and judge to pick jury
Important to note : the accused can opt not to have case heard by jury
today less trials are done by jury.
high frequency of plea bargaining- parties working out a compromise to avoid trial
in tort cases: parties often hire an arbitrator and agree to his/her findings.
The AUDIENCE:
interest groups actively seek litigants and their causes to support.
interest group sponsored cases are called TEST CASES which are about questioning some
point of the law. Two important such groups are NAACP and the ACLU.
besides sponsoring a cause, groups also seek to influence the appellate court thru
amicus curiae briefs (legal arguments) for the court to consider
in formulating its opinion. These groups have no association
with the case other than interest in the court’s ruling.
Media: always has an influence – so much so that courts can limit its coverage of a trial
gag orders and juries get sequestered.
The JUDGE: guide the decision making in an impartial manner
- make procedural rulings
- instruct the jury
- validate the final decision of acquittal or conviction
- establish the “remedy” = what is the result/
solution to the case
THE JURISDICTION OF THE FEDERAL COURTS
dual court system exists in USA – thanks to federalism: state and national courts
certain cases are given to the federal courts by the Constitution, and the rest to
the state courts by the notion of reserved powers and the X and XI Amendments
federal question cases: cases “arising under the Constitution, the law of the US, and treaties”
and diversity cases: cases involving citizens of different states. (serve as neutral venue)
dual sovereignty: state and feds can prosecute same person for same conduct
The Process
1. SCOTUS
2. Court of Appeals
3. District court
sovereign immunity: cannot sue US without its permission
constitutional question: state cases can be appealed to SCOTUS if an application
of a state law or power is viewed as a violation of the
Constitution (civil liberty/civil right issues)
application of Constitutional requirements on the states is called:
incorporation based on “equal protection and due process” of XIV Amend.
THE SELECTION OF JUDGES
Constitution is silent about qualifications ! All we get is the requirement to exhibit “good behavior”
Nomination Process
• POTUS nominates
• SENATE confirms under the power of “advise and consent”
• but there are 100s of seats at the district and appellate level
and nine justices on the SCOTUS → no single POTUS makes all
appointments because of lifetime tenure. But some POTUS will
make more than another. If a POTUS had to appoint all , it would
have to be a full time job!
So here’s the really skinny:
Staffers in the WHO specialize in finding candidates
- recommendations from DOJ FBI Congress ABA and other interest groups,
even other sitting judges.
-The process on the district and appellate levels is dominated by the tradition:
SENATORIAL COURTESY
The Senate rejects if the senior Senator of the majority party, from
the state to be served in, objects to candidate for a district court.
For an appellate judgeship – if both senators from the nominee’s home
state object = Senate Rejection
Nomination to the district courts are fairly cut and dry because of Courtesy,
but for appellate and especially SCOTUS it is much more political and
ideologically driven.
The powerful role of the Senate Judiciary Committee
- all nominees are interviewed
- if not recommended by the Committee = Senate rejects
Why are you nominated?
1. Political Ideology is good fit with POTUS (?)
2. Party and Personal Loyalties
3. Acceptability to the Senate
4. Judicial experience
5. Race and Gender
6. “Litmus Test”
HOW THE SUPREME COURT (SCOTUS) WORKS
1.
2.
3.
4.
Resolves conflicts between states
Maintains national supremacy
Ensures uniformity in the interpretation of national laws
Determines the constitutionality of laws and government actions (policy)
SCOTUS does more than decide specific cases. In the end, it shapes policy as profoundly as any law
passed by Congress or any action taken by the president
SELECTION OF CASES
issuing of a writs of certiorari = “CERT”
via the “RULE of 4” - 9 justices seat in panels reviewing cases petitioning for cert
- the panel of 4 justices decide if SCOTUS will hear the case
NB: law clerks doing the research
SCOTUS HAS TOTAL CONTROL OF ITS AGENDA – IT WILL HEAR ONLY A HANDFUL OF THOSE PETITIONED
STARE DECISIS is always in play
SCOTUS in session from First Monday in October to early June
BRIEFS and ORAL ARGUMENTS
brief= printed legal arguments and cited relevant precedents of the litigants
are read by SCOTUS
( included in this reading can be amicus curiae briefs)
oral arguments are then scheduled: Mondays, Tuesdays, and Thursdays
each litigator has only 30 minutes to make the oral argument
- the justices may ask questions and make comments
during your 30 minutes !
THE CONFERENCE
Wednesday afternoons and all day Friday SCOTUS discuss and “vote” on the cases
Chief Justice moderates these discussions. When he feels that they are done, each justice
is asked to give his or her concluding views.
OPINIONS
once a conference decision is made, the formal opinion ( statement of legal reasoning behind the decision) needs to
be created.
majority opinion: official opinion of the court
the senior member of the court in the majority assigns responsibility for its writing.
dissenting opinion: statement of those justice(s) in disagreement with the majority
senior member of the opposition assigns its writing.
concurring opinion: written by a justice who agrees with the majority conclusion, but
for other reasons than those stated in the majority opinion
All opinions are published. The dissent may be used - citing legal reasoning and precedent for some future case or
issue, especially if the original majority opinion gets reversed. The author of an opinion often gives it its worth
down through history.
The “vote” of the Court is not formally calculated. It is deduced from who writes what or who endorses
what opinion.
9-0
8-1
7-2
6-3
5-4 ( weakest- a candidate for reversal)
Implementation of a decision
judicial implementation: translation of a decision into actual policy which affects the behavior of others
No enforcement = Courts rely on the power possessed by the other branches
if POTUS or Congress are gung-ho - it happens
Usually it is not on their agendas, but it gets done thanks to the
bureaucracy which really loves to do its job. (conditions of aid/regulations)
The problem comes if the decision requires the co-operation of several
officials or the wide extent of the country.
desegregation
school prayer
Corrigan’s opinion: Courts often speak for “the silent” and
most of us expect and want the Courts to do so – because
as citizens we should but do not – which is both gratifying
but also quite embarrassing.
We get to play Pilate !
THE COURTS AND DEMOCRACY
- the courts are the least democratic
- appointment not election
- life tenure
- decision can only be reversed by a higher court, or amending the Constitution
But … POPULAR INFLUENCE
• Judges chosen because of a political connection/bias to a president
• Judges read newspapers, go to Home Depot, worry about their reputations,
read their mail – worry more about peer opinion
• Influenced by the fact of their lack of enforcement power.
POLITICAL IDEOLOGY
• not “babes in the wood” or pristine druids of the law
had been and are are members of political parties and
activities
• “above politics”, but are Republicans and Democrats
conservative and liberal ( and moderate)
CONSERVATIVES Human beings – they have opinions; ethics, moral code
BLOODS”
Roberts*
Scalia
Alito
Thomas
“Swing Vote”
Kennedy
“CRIPS”
Breyer
Ginsberg
Kagan
Sotomayor
LIBERALS
CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS
JUDICIAL REVIEW makes US judges the most powerful judges in the world’s modern democracies
but …
1. Adversarial system - two equal parties present their arguments to an impartial arbiter
need for neutrality → more passive role for the judge
2. Justiciable dispute requirement: need for “standing”
must be resolvable by legal methods
real issue/real harm
3. Political question doctrine: for the sake of constitutional principles, some disputes need to be
worked out between POTUS and Congress not in a court room.
Classic Checks and Balances:
• POTUS controls nature of courts by appointment power
• Senate must confirm appointments via “advise and consent”
• Congress can alter the structure of the courts: # of courts; # judges; jurisdictions
• Congress can impeach federal judges: 3 since 1989
• Congress and the states can amend the Constitution when a Court finds a law or
action unconstitutional.
THE POLICY MAKING POWER
most cases decided by the federal courts only apply existing law to specific cases
yet courts do make policy (take government action) on both small and big issues.
There exists quite a contentious debate about the extent of policymaking by the courts
JUDGE MADE LAW
Strict constructionist
JUDICIAL RESTRAINT
Minimal policy making
Judicial activist
vs.
JUDICIAL ACTIVISM
Policy making encouraged; new (modern) interpretations needed
- Judiciary the least democratic
- Constitution needs to be understood
in its original context
- judges aren’t policy experts, so don’t make policy!
- other branches unwilling or incapable of correcting injustices
e.g. Minority rights in a representative democracy under an
electoral system based on plurality
It is important to realize how political ideology affects policy making power: BUT liberals are not always
activists and conservatives not always strict-constructionists
We are under a Constitution, but the Constitution is what the judges say it is.
Chief Justice Charles Evans Hughes (1930-1941)
Justice Hughes