POL3162
Introduction to American Politics
THE COURTS
SHANG E. HA
SOGANG UNIVERSITY
Overview
 APT, Chapter 13
 How did the federal judiciary become independent and
powerful?
 What is the nature of the American legal and judicial
system?
 How do cases reach the Supreme Court?
 How does the Supreme Court make decisions?
The Supreme Court: Who’s Who?
Antonin Scalia (1936 - )
 Nominated by Ronald
Reagan (1986);
confirmed by the Senate
(98-0)
 Georgetown University;
Harvard Law School
 Catholic
 Ideologically
conservative
Anthony Kennedy (1936 - )
 Nominated by Ronald
Reagan (1988); confirmed
by the Senate (97 – 0)
 Stanford University;
Harvard Law School
 Catholic
 Ideologically conservative,
but often a swing voter
Clarence Thomas (1948 - )
 Nominated by George H.
W. Bush (1991); confirmed
by the Senate (52-48) –
Anita Hill allegations
 College of the Holy Cross;
Yale Law School
 Catholic
 Ultra-conservative (the
second African American
justice)
Ruth Bader Ginsburg (1933 - )
 Nominated by Bill
Clinton (1993);
confirmed by the Senate
(96-3)
 Cornell University;
Columbia Law School
 Judaism
 Ideologically liberal (the
second female justice)
Stephen Breyer (1938 - )
 Nominated by Bill
Clinton; confirmed by
the Senate (87-9)
 Stanford University;
Harvard Law School
 Judaism
 Ideologically liberal
John Roberts (1955 - ): Chief Justice
 Nominated by George W.
Bush (2005); confirmed
by the Senate (78-22)
 Harvard University;
Harvard Law School
 Catholic
 Conservative
Samuel Alito (1950 - )
 Nominated by George W.
Bush (2006); confirmed
by the Senate (58-42)
 Princeton University;
Yale Law School
 Catholic
 Conservative/libertarian
Sonia Sotomayor (1954 - )
 Nominated by Barack
Obama (2009); confirmed
by the Senate (68-31)
 Princeton University; Yale
Law School
 Catholic
 Liberal (the first
Hispanic/third female
Justice)
Elena Kagan (1960 - )
 Nominated by Barack
Obama (2010); confirmed
by the Senate (63-37)
 Princeton University;
Harvard Law School
 Judaism
 The fourth female justice;
the first female Dean of
Harvard Law School
The Courts: Ideology of Supreme Court Justices,
2014
The Development of an Independent Federal Judiciary
 The Founders’ View of the Courts: The Weakest
Branch?


Federalists (courts = weak; see The Federalist Paper, #78) and
Antifederalists (courts = strong) disagreed over how much
power the courts would have.
Major Constitutional Convention debate was over the degree
to which the courts would be independent. The Constitution
was silent on judicial review.
The Development of an Independent Federal Judiciary
 The Judiciary Act of 1789
 The law in which Congress laid out the organization of the
federal judiciary
 The law refined and clarified federal court jurisdiction and set
the original number of justices at six (and then 10, 7, and now
set at 9 in 1869)
 Congress also created a system of federal district courts (13 –
low-level trial courts of the federal judiciary system that handle
most US federal cases) and circuit courts (3 – the
intermediate-level courts that heard appeals from the district
courts).
The Development of an Independent Federal Judiciary
 Judicial Review
 The Supreme Court’s power to strike down a law or executive
branch action that it finds unconstitutional (constitutional
interpretation)
 Marbury vs. Madison (1803)
 The court has struck down about 170 congressional laws and
1,400 state acts (ONLY about 0.25 percent of the
congressional laws passed in the first 215 years of our
country’s existence)
The American Legal and Judicial System
 Court Fundamentals
 Plaintiffs bring cases to court; defendants are being sued
and/or charged with a crime
 Verdict: the final decision in a court case (heard before a jury)
 Plea bargaining: the situations where the cases get settled
before going to a trial or in the middle of the trial
A civil case: a monetary settlement
 A criminal case: the defendant agrees to plead guilty in exchange
for a shorter sentence or being charged with a lesser crime


The loser can appeal the case
The American Legal and Judicial System
 Court Fundamentals (cont.)
 Standard of proof: the amount of evidence needed to
determine the outcome of a case



In criminal court it is “beyond a reasonable doubt”
In civil court it is the “preponderance of evidence.”
Burden of proof


In criminal court there is a presumption of “innocent until
proven guilty” (the plaintiff must prove the guilt of the
defendant)
In civil court it may be on the plaintiff or the defendant
depending on the nature of the case
The American Legal and Judicial System
 Court Fundamentals (cont.)
 Precedents (stare decisis – let the decision stand) are
previously decided cases/sets of decisions that serve as a
guide for future cases on the same topic.
 Supreme Court strongly honored precedents in first 100 years
of its existence; modern court is more willing to overturn
precedents.
Supreme Court Cases Overruling Precedent
and Acts of Congress, 1789–2011
The American Legal and Judicial System
 Structure of the Court and Federalism
 District Courts




The workhorses of the federal judicial system
Handle more than a quarter of a million filings a year
89 district courts in 50 states + 5 more in other areas (e.g.,
Puerto Rico) = 94 district courts (with 678 judges)
Appeals Courts (“Circuit Courts” until 1948)



The intermediate courts of appeals (but in practice the final court
for most federal cases)
11 appeals courts across 50 states + one more in DC = 12 appeals
courts (179 judges + 91 “senior judges” as of 2009)
The workload keeps growing
Map of the Federal Appeals Courts
The American Legal and Judicial System
 Structure of the Court and Federalism (cont.)
 The Supreme Court


The “court of last resort”: resolve conflicts between lower courts,
or between a state law and federal law, or between the state, and
ensure that the application and interpretation of the Constitution
is consistent across the US
Contrary to popular belief, the Supreme Court does not always
have the final word.
 The Court can strike down a law, but Congress can always
rewrite it
The American Legal and Judicial System
 How Judges Are Selected
 State-level Judges
Gubernatorial appointment (2 states)
 State legislative appointment (2 states)
 Partisan elections (9 states)
 Nonpartisan elections (17 states)
 Nonpartisan screening committee gives list to governor and then
the governor makes appointment (so-called the Missouri Plan – 17
states + 3 states with some modification)

The American Legal and Judicial System
 How Judges Are Selected (cont.)
 Federal Judges


No law degree is required!!!
Nominated by the president with “advice and consent” from the
Senate
 These nominations can be contentious.
The American Legal and Judicial System
 The Role of the President in Selecting Judges
 Presidents have always tried to influence the direction of the
federal courts (particularly the Supreme Court) by picking
people who share their views on important issues
 In the Senate, the Supreme Court justice nominees are rarely
rejected because of their qualifications, but rather for political
reasons

Senatorial courtesy: a norm in the nomination of district
court judges in which the president consults with his party’s
senators from the relevant state in choosing the nominee
The Demographics of the Federal Bench
Confirmation Delay for Federal Judges,
1981–2012
Supreme Court Caseload: The Court Sees More
Opportunities … But Hears Fewer Cases: Cases Available for
Review
Supreme Court Caseload: The Court Sees More
Opportunities … But Hears Fewer Cases: Cases Argued
before the Court
Access to the Supreme Court
 Four Ways to Get Your Case Heard by the Supreme Court

Original jurisdiction


Cases on appeal


Those that Congress has determined to be so important that the
Supreme Court must hear them
A writ of certification (almost never used)


Cases involving foreign ambassadors, countries, or cases where a state
is a party (particularly disputes between two or more states)
When an appeals court asks the Supreme Court to clarify a new point
of federal law in a specific case
A writ of certiorari

Those who lost in lower court can file a petition to the Supreme Court
explaining why it should hear the case (If four justices agree, the case
will get a full hearing) - comprises about 95% of the workload; usually
pick around 1 % of the cases received
Access to the Supreme Court
 The Court’s Criteria When Choosing Cases
 Internal politics
 Cert pool: whereby law clerks – usually top graduates
from elite law schools - take a first cut at the cases
 The
chief justice has an important agenda-setting
power (deciding the “discussion list” for a given day)
 About
three-quarters of the cases that are submitted to
the Supreme Court are never even discussed by the
Supreme Court!!!
Hearing Cases
 Briefs: written documents prepared by both parties in a
case, and sometimes by outside groups, presenting their
arguments in court
 Oral arguments: spoken presentations made in person by
the lawyers of each party to a judge or court outlining the
legal reasons why their side should prevail
 Conference
 Opinion writing
Types of Supreme Court Decisions
 Majority opinion: the core decision of the Court that
must be agreed upon by at least five justices
 Concurring opinion: written by a justice who agrees
with the outcome of the case but not with the legal
reasoning
 Dissent: submitted by a justice who disagrees with
the outcome of the case
Supreme Court Decision Making
 Legal Factors
 Precedents
 The language of the Constitution
 Political Factors
 Political ideology
 The strategic model: Since one justice can’t just magically get what he or
she wants, it is useful to consider how justices work to build coalitions
when making decisions
 Separation of power



Judicial restraint: Judges ought to defer to the executive and legislative
branches.
Judicial activism: Judges ought to play an active role in interpreting the
Constitution even if it means overturning actions from the other
branches.
Outside influences: interest groups and public opinion