The Judicial Branch
Alexander Hamilton: The Federalist #22
We need a third
branch of the
government that
will define the true
meaning and
operation of the
laws.
The Framers: Courts would have a
traditional role
The courts should not make
policy, they should simply
find and apply existing law.
Right! The courts will be
neutral and passive in public
affairs.
The Framers: Courts would have a
traditional role
• Federal courts have evolved toward judicial
activism.
• Later judges believed that courts should also “make
law.”
• Through history, political, economic
and ideological forces have led to
increased court activism.
I should’ve seen that
coming!
What courts do
1. Interpret laws passed by legislatures.
Interpret: To decide the meaning of.
• The U.S. Supreme Court interprets the U.S. Constitution
• State supreme courts interpret state constitutions.
2. Settle disputes between people, or between
people and the government.
3. Conduct criminal trials to determine a person’s
guilt or innocence.
4. Protect people’s rights.
Article III of the Constitution
Article III
[Section 1.] The judicial Power
of the United States shall be
vested in one supreme Court,
and in such inferior Courts as
the Congress may from time
to time ordain and establish.
The Judges, both of the
supreme and inferior Courts,
shall hold their Offices during
good Behaviour, and shall, at
stated Times, receive for their
Services a Compensation, which
shall not be diminished during
their Continuance in Office.
Section 1
• Establishes a Supreme
Court
• Gives Congress the power
to establish lower courts.
• Judges serve “during
good behavior.”
Article III of the Constitution
Article III
[Section 2.]
The judicial Power shall extend to all
Cases, in Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made, or
which shall be made, under their Authority; -- to all Cases
affecting Ambassadors, other public Ministers and Consuls; -- to
all Cases of admiralty and maritime Jurisdiction; -- to
Controversies to which the United States shall be a Party; -- to
Controversies between two or more States; -- between a State
and Citizens of another State; -- between Citizens of different
States; -- between Citizens of the same State claiming Lands
under Grants of different States, and between a State, or the
Citizens thereof, and foreign States, Citizens or Subjects.
In all Cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State shall
be Party, the supreme Court shall have original
Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as
to Law and Fact, with such Exceptions, and under such
Regulations as the Congress shall make.
The Trial of all Crimes, except in Cases of Impeachment, shall be
by Jury; and such Trial shall be held in the State where the said
Crimes shall have been committed; but when not committed
within any State, the Trial shall be at such Place or Places as the
Congress may by Law have directed.
Section 2
• Defines jurisdiction of
Supreme Court.
• Guarantees right to trial
by jury.
Article III of the Constitution
Article III
[Section 3.] Treason against the
United States shall consist only in
levying War against them, or in
adhering to their Enemies, giving
them Aid and Comfort. No Person
shall be convicted of Treason unless
on the Testimony of two Witnesses
to the same overt Act, or on
Confession in open Court.
The Congress shall have Power to
declare the Punishment of Treason,
but no Attainder of Treason shall
work Corruption of Blood, or
Forfeiture except during the Life of
the Person attainted.
Section 3
• Defines treason and gives
Congress the power to set
punishment for treason.
Summary
Article III is brief and
describes very few powers
given to the judiciary.
Jurisdiction Vocabulary
• Jurisdiction: A court’s authority to hear and decide a case.
• Original jurisdiction: ….to be the first court to hear and decide
certain types of cases.
• Appellate jurisdiction: ….to review decisions made by lower
courts.
• Exclusive jurisdiction: The sole right of a court to hear and
decide a case.
• Concurrent jurisdiction: cases that fall under jurisdiction of
both state and federal courts.
A dual court system
U.S. Supreme
Court
State Supreme
Courts
U.S. Courts of
Appeals
State Appeals Courts
U.S. District Courts
State Trial Courts
dual sovereignty
State and federal authorities may prosecute the same
person for the same conduct under both federal and
state laws.
GUILTY!
DITTO!
Federal Court System
U.S.
Supreme
Court
Circuit Courts
of Appeals
U.S. District Courts
Federal Court System
• 94 of them.
U.S.
Supreme
Court
Circuit Courts
of Appeals
U.S. District Courts
• Have original jurisdiction in most
federal cases.
• All cases involve federal law.
• The main trial court in the
federal system.
• Most decisions made in district
courts are final.
Federal Court System
• 12 federal appeals courts in U.S.
U.S.
Supreme
Court
Courts
of Appeals
U.S. District Courts
• They are regional courts.
• Only hear cases on appeal.
• Judges review case record and
“affirm” or “reverse” lower court’s
ruling.
• Decisions are final unless the S.C.
agrees to hear the appeal.
Federal Court System
• Highest court in the U.S.
U.S.
Supreme
Court
Circuit Courts
of Appeals
U.S. District Courts
• “Court of last resort.” No appeal
from Supreme Court.
• Final authority on meaning of the
Constitution.
• Only hears cases it wants to. Most
cases involve a constitutional
question.
• Nine judges.
The U.S. Supreme Court has original jurisdiction
in cases:
• which involve two states in a dispute.
• which involve representatives of foreign
governments.
Power of the Federal Courts
Judicial
interpretation
Legislature
laws
Under what conditions
should the judiciary
overturn the will of the
people?
Will of the people
Judicial Review




Judicial review is the power
of a court to decide if a law
goes against the Constitution,
and overturn it.
This power is not mentioned
in the Constitution.
Judicial review was
established by the Supreme
Court in Marbury v. Madison
(1803).
Marbury's effect -- the
Supreme Court has the final
say in what the Constitution
means.
John Marshall
Chief Justice, U.S. Supreme Court
1801-1835
Marbury v. Madison in a nutshell

Established the power of
judicial review.

The Supreme Court decides
what the constitution means.

Vastly expanded the power of
the courts.

Not in the Constitution.
“It is emphatically the duty of the
Judicial Department to say what
the law is. Those who apply the
rule to particular cases must, of
necessity, expound and interpret
the rule.”
Chief Justice John Marshall,
Marbury v. Madison
Judicial Activism or Judicial Restraint?
Judicial Activism: judges can adapt the meaning of the
Constitution to reflect modern realities.
“[T]he judiciary must do more than dispense justice in cases and controversies. It
must also keep the charter of government current with the times and not allow it to
become archaic or out of tune with the needs of the day.”
Justice William O. Douglas
Judicial Restraint: A judge should interpret the Constitution
according to the Framers’ original intent.
“It can never be emphasized too much that one's own opinion about the wisdom
or evil of a law should be excluded altogether when one is doing one's duty on
the bench.”
Justice Felix Frankfurter
Judicial Activism
• Judges should discover the principles
underlying the Constitution and “amplify” them
and apply them to cases.
• A judge should use his or her position to
promote desirable social ends.
• Judges “make law.”
• A new public policy emerges as a result of a
judicial decision.
• Assumption: Judges do not necessarily
“respect” the intentions of the lawmakers.
Judicial Activism
• Advantages
o Courts can correct injustices created by other
branches.
o Laws can be changed when circumstances in
society changes.
o Courts can protect rights of the politically
powerless.
• Criticisms
o Judges are not politically accountable.
o Laws reflect the will of the people and judges
must respect that.
o Judges lack expertise on complex details of
policy.
Judicial Activism
PERRY V. SCHWARZENEGGER
(Now: Hollingsworth v. Perry)
• Issue: same-sex marriage
• Liberal activism
• The people of California, through the initiative process,
created a state law prohibiting same-sex marriage.
• Federal District Judge Vaughn Walker found that the law is
unconstitutional.
o Historical context (times have changed)
o Due process clause (14th Amendment)
o Equal protection clause (14th Amendment)
• Judge’s decision = new law
Judicial Activism
CITIZENS UNITED V. FEDERAL ELECTION
COMMISSION
• Issue: campaign contributions by interest groups
• Conservative activism
• Congress passed the Bipartisan Campaign Finance Reform
Act of 2002 (McCain-Feingold) which regulates “electioneering
communication.”
• Supreme Court found that this law inhibited the free speech
of corporations.
o Corporations are legally “individuals.”
o 1st Amendment protects individual rights.
• 5-4 decision = new law
Judicial Review
Judicial Activism or Judicial Restraint?
•
Most judges declare a belief in judicial
restraint.
•
The power of judicial review implies some
measure of judicial activism.
•
Best example of social value of judicial
activism: ending racial segregation.
•
Current issues involving judicial activism:
abortion, gay marriage, school prayer,
death penalty.
Power of the Federal Courts
• Courts make policy whenever they:
o reinterpret a law or the Constitution in any significant way.
o extend the reach of a law to new areas.
o design remedies that place judges in a legislative or administrative
role.
• In most court cases, judges simply apply accepted law.
Power of the Federal Courts
• The courts have become more powerful than the Framers
envisioned.
• Three ways to measure this:
1. How many federal laws have been declared unconstitutional?
(160)
2. How frequently has the S.C. changed its mind? (260)
3. How willing are the courts to handle political questions
(legislative matters)? (Increase after 1962)
•
By all of these measures the federal courts have grown
in power.
Power of the Federal Courts
Factors leading to increased power
• Laws are increasingly vague. Courts have more latitude for
interpretation and designing remedies.
(Examples: anti-discrimination, economic regulation for “public
interest”)
• Some laws invite litigation. Courts are called upon to settle
disputes more often, esp. challenges to government
agencies. More opportunity to make policy.
• Judicial attitudes – Decisions affected by ideology. Activist
judges more likely to make new policy.
Checks on Judicial Power: President
• No armed forces to back up decisions.
• Courts rely on executive branch to
enforce decisions.
• Judicial decisions can be ignored.
o Worcester v. Georgia, Andrew Jackson refused
to support decision favoring the Cherokee.
o Prayer in public schools continued after Engel v.
Vitale.
• President can grant pardons and
reprieves.
Checks on Judicial Power:
Congress
• Can gradually change the composition of the federal
judiciary by confirming/denying appointments.
• Can impeach judges – rare and ineffective.
• Can change the size of the S.C. or entire judiciary.
o 1978 – created 152 new district and appellate judges to ease
workload.
o 1863-1869 – changed size of S.C. three times.
Checks on Judicial Power:
Congress
• Can begin Constitutional amendment process (rare).
• Can rewrite legislation in different form to meet
requirements of the courts.
• Can decide what the jurisdiction of the courts shall be.
o Congress could prevent courts from acting by denying them
jurisdiction over certain matters.
o Even the threat of withdrawing jurisdiction can influence judicial
decisions. (Example: congressional hostility to civil rights decisions.)
o Narrowing jurisdiction is a “blunt instrument.”
Checks on Judicial Power:
Public Opinion
• Judges are very aware of public opinion and are sensitive
to some (esp. elites)
• Disregard of public opinion can damage the legitimacy of
court decisions.
o Example: Dred Scott infuriated the North and was widely
disobeyed.
• Public opinion can energize courts as well as restrain.
o Activism coincides with period of deep and lasting political change
(national supremacy, slavery debate, civil rights era).
Checks on Judicial Power:
Public Opinion
• Public confidence in S.C. has varied over time.
• Current confidence level is “relatively low.”
• Nixon and Reagan tried to make the S.C. less activist with their
appointments.
“I would hope that a wise Latina
woman with the richness of her
experiences would more often than
not reach a better conclusion than
a white male who hasn’t lived that
life.”
Sonya Sotomayor, 2001
in a speech to students at UC-Berkeley
Who are Federal Judges?
Typically, federal judges have:
 held previous political office
such as prosecutor or state
court judge
 political experience such as
running a campaign
 prior judicial experience
 traditionally been mostly
white males
 been lawyers

Most Supreme Court
justices have previously
been federal judges.
Women of the Supreme Court
Sonia Sotomayor,
Ruth Bader Ginsburg, Elena Kagan
Who are Federal Judges?
Presidents usually nominate
people to be federal judges who
reflect the president’s own
political beliefs.
Once confirmed, the judges will
serve for many years, ensuring
that the president’s political
influence will continue for many
years.
This doesn’t always work out.
Presidents are sometimes
surprised by the behavior of
their nominees (Holmes, Burger,
Blackmun)
President Obama nominates Elena Kagan
to be Supreme Court Justice.
Federal Selection Process
• Highly politicized process.
• Party background influences judicial behavior.
• Gender, race and ethnicity have become
increasingly important.
Federal Selection Process
President
Senators
Dept. of
Justice
American
Bar
Association
Interest Groups
Senate
Judiciary Committee
Senate
Senatorial Courtesy
• A tradition. Senators recommend judicial candidates from
their state.
• A Senator can also “veto” a judicial nominee for a district in
his/her state.
• Result: A president nominates only people recommended to
him by a senator.
• “The senators shall nominate, and by and with the consent
of the President, shall appoint federal judges.”
The “Litmus Test”
• The examination of the political ideology of a
nominated judge.
• Often focuses on narrow issue.
• Has grown in importance. Confirmation rates have
declined.
Confirmation rates for
nominees for U.S. Court
of Appeals 1947-2005)
The “Litmus Test”
• Threat of judicial filibuster means 60 Senators must support a
nominee to assure confirmation.
• Abortion is the most likely issue for use of “litmus test.”
• “Litmus test” most important for S.C. nominees.
• Questioners try to pin down nominees on their views.
• Sotomayor: Is she prejudiced?
• Alito answer: “I can’t predict how I’ll decide on cases I haven’t
heard yet.”
Sonya Sotomayor
was confirmed by a
vote of 68-31.
9 of 40 Republicans
supported her
confirmation.
The U.S. Supreme Court

Highest court in the land.

NINE Justices




All but six have been white men.
African-American (2):Thurgood Marshall and Clarence
Thomas
Women (4): Sandra Day O’Connor , Ruth Bader Ginsburg,
Sonya Sotomayor, Elena Kagan
Hispanic (1): Sonya Sotomayor
Thurgood Marshall
Powers of the Supreme Court
Power
Powers of
the U.S.
Supreme
Court
Example
Judicial
Review
Explains what the
U.S. Constitution
means. What does
“unreasonable
search” mean?
Interpreting
Laws
What does “uses”
mean when a law
says “uses a gun?”
How the Justices Vote


Judicial Philosophy

Judicial Restraint - advocates minimalist roles for

Judicial Activism - feels that judges should use the
judges
law to promote justice, equality, and personal liberty.
Precedent


Prior judicial decisions serve as a rule for settling later
cases of a similar nature.
Precedents can change over time

Ex. Plessy vs. Ferguson and Brown vs. Board of Education
The U.S. Supreme Court





Chief Justice: John Roberts
Grants a writ of certiorari for
about 100 of the over 7,000 cases
that are submitted to it each year.
Certiorari – Latin for “make more
certain”
“Rule of four”: If four justices
vote to grant certiorari, the
Supreme Court accepts the case.
Will not hear cases if they believe
the lower court made the correct
decision.
John Roberts
Chief Justice 2005 - present
The U.S. Supreme Court

Chooses cases that
•
•
•
Involve significant
Constitutional questions .
Involve other important legal
questions .
Involve disagreement among
lower courts.
John Roberts
•
Are important to the entire
country.
Chief Justice 2005 - present
The Supreme Court’s Decision Making
Process
Lawyers
submit briefs
to justices.
Justices read
briefs.
Amicus curiae
briefs
submitted by
other
interested
parties.
Court hears
oral
arguments. A
lawyer from
each side
gets 30
minutes.
Judges ask
lawyers
questions.
Justices get
together in
secret
conference to
discuss case.
Then they
vote.
Chief Justice
guides
discussion.
Justices
write
opinions to
explain the
reasons for
their
decision.
The Court’s
decision is
announced
to the
public.
Supreme Court Decisions


Majority vote required to determine outcome of case.
Write opinions.




Majority opinion: explains court’s decision.
Dissenting opinion: states reasons why judge(s) disagreed with
majority opinion.
Concurring opinion: states reasons why a judge agrees with the
decision but for a different reason.
Current composition of Supreme Court:

Conservative bloc: 4 Liberal bloc: 4

Swing vote: Justice Anthony Kennedy
Justice Anthony M. Kennedy
Supreme Court Decisions
•
•
•
Stare decisis: “Let the decision stand.”
Court does not hear case but allows lower court ruling to
stand.
Supreme Court is hesitant to overturn lower court
decisions.
Other federal court officers
U.S. Solicitor General
•
Third highest ranking officer in
Dept. of Justice.
•
Decides what cases the
government will appeal from
lower courts.
•
Personally approves every case
the government presents to
Supreme Court.
Donald Verrilli, Jr.
U.S. Solicitor General
Other federal court officers
U.S. Attorneys
• The government’s prosecutors.
U.S. Attorney General Eric Holder
• Work closely with the FBI and
other law enforcement
agencies to bring to trial
people charged with federal
crimes.
Other federal court officers
U.S. Magistrate
• Handle a number of legal
matters once dealt with by
federal judges.
• Examples: issuing arrest
warrants, setting bail
• Try people on minor
offenses.
U.S. Magistrate
Other federal court officers
U.S. Marshals
• Make arrests in federal
criminal cases
• Hold accused people in
custody
• Serve legal papers
• Help emergency situations
like riots.