Supreme Court
Judiciary – The cornerstone of our
democracy
Two Types
• Criminal Law
– The government charges an individual with
violating specific laws (crime against society)
• Civil Law
– Involves a dispute between two parties (one
of whom may be the government itself) over a
wide range of matters.
• No crime committed
• Usually involves damages or actions
On Average…
• Most cases are settled out of court
–Plea bargains
–Settlement agreements
• Most cases (civil and criminal)
involve state law and are tried in
state and local courts
Characteristics
• Adversarial system
– Plaintive vs. Defendant
– Conflicts are argued before an impartial arbiter
• Courts are passive
– Cases must be brought to them
• Jurisdiction
– Authority to hear a case
• Dual system
– State and Federal
Jurisdiction
• Justiciable disputes
– Issues capable of being settled as a matter of law
• Original Jurisdiction
– Courts that hear a case first, usually in trial.
– Determine facts about a case.
• Appellate Jurisdiction
– Courts hear cases on appeal from lower courts.
– No new testimony.
– Do not review factual record, only the legal issues
involved.
Jurisdiction II
• Exclusive Jurisdiction
– Cases that can ONLY be heard in specific
courts
• Ex: Bankruptcy cases are heard in federal district
courts
• Concurrent Jurisdiction
– Cases that can be heard in either state or
federal courts
• Ex: Trademark infringement, breach of contract
Participants
• Court Personnel – Judge, bailiff, stenographer, jury
• Litigants – Plaintiff (bring charges) and defendant
• Standing to sue – have a serious interest in a case
(must have sustained or are likely to sustain a direct
and substantial injury or damages)
• Attorneys – Access to lawyers has become more
equal, but that does not mean that quality of
representation is equal.
• Groups – Interest groups or “affected” groups of
people
Group Participation
• Class action suits - a small number of people
to sue on behalf of all other people similarly
situated
– Example: a suit on behalf of all credit card holders
of an oil company or all people injured by a
medication
• Amicus curiae briefs - Legal briefs submitted
by a “friend of the court”
– influence a court’s decision by raising additional
points of view and presenting information not
contained in the briefs of the formal parties.
Origin of the Courts
• Article III of the Constitution only specifies
that there will be a Supreme Court
• Congress given power to establish lower (inferior)
federal courts of general jurisdiction.
• The Judiciary Act of 1789 - created a
system of constitutional courts (also called
Article III courts) on the basis of this
constitutional provision
• 12 federal courts of appeal
• 94 federal district courts
• thousands of state and local courts.
Article I Courts
• Legislative courts – established by
Congress for specialized purposes (based on
Article I of the Constitution)
• Staffed by judges who have fixed terms of
office and who lack the protections of judges
on constitutional courts against removal or
salary reductions.
• Ex - Court of Military Appeals, the Court of Claims,
and the Tax Court
Decisions, Decisions
• Common Law – English tradition of using judge-made
law that has developed over centuries and is based on
decisions made by previous judges
• Stare Decisis – Phrase meaning “let the decision
stand.”
• Most cases in appellate courts are settled on stare decisis
• Precedent – How similar cases have been decided
in the past.
• Lower courts are expected to follow the precedents of
higher courts in their decision making.
• Precedents CAN be overturned.
Federal District Courts
• Federal District Courts
– The only federal courts with trials and juries
• Jurisdiction:
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federal crimes
federal civil suits
civil suits between citizens of different states over $75,000
bankruptcy proceedings
review actions of some federal administrative agencies
admiralty and maritime law cases
supervision of the naturalization of aliens
District Court Cases
• District court judges hear more than
300,000 cases per year.
• Most of the cases are settled by plea
bargain or agreement (about 2% by trial)
• Most cases are routine and seldom
result in policy innovations
• Usually district court judges do not even
publish their decisions
APPEALS
• Most federal litigation ends at district level, but
many of the cases that district court judges actually
decide (as opposed to those settled out of court or
by guilty pleas) are appealed by the losers.
• A distinguishing feature of the American legal
system is the relative ease of appeals.
• U.S. law gives everyone a right to an appeal to a higher
court.
• The loser in a case only has to request an appeal to be
granted one (SCOTUS is an exception).
• Of course, the loser must pay a substantial legal bill to
exercise this right.
Courts of Appeal
• United States is divided into 12 judicial circuits,
including one for the District of Columbia.
• Each circuit serves at least two states and has
between 6 and 28 permanent circuit judges
depending on the amount of judicial work in the
circuit.
• appellate jurisdiction –
• 3 judge panels review final decisions of district
courts (all may sit en banc for important cases)
• review and enforce orders of many federal
regulatory agencies.
Courts of Appeal
Courts of Appeal
• Correct errors of procedure and law that
occurred in the original proceedings of legal
cases
– Ex: a district court judge gave improper
instructions to a jury or misinterpreted the rights
provided under a law
• These courts are appellate courts and
therefore hold no trials and hear no testimony
• Decisions set precedent for all the courts and
agencies within their jurisdictions
Special Court of
Appeal
• U.S. Court of Appeals for the
Federal Circuit – Composed of 12 judges
to hear appeals in specialized cases, such as
those regarding patents, claims against the
United States, and international trade.
The Supreme Court
• Decisions of the United States Supreme Court
are binding on the entire nation
• the highest court in the federal system
• America’s “court of last resort”
• the only court specifically established within
Article III of the Constitution
• Final arbiter of the Constitution
• The size of the Court is not set in the Constitution
– Originally set at six, altered many times between 1801 and 1869
– the number has remained stable at nine justices since that time
The Supreme Court
• The Supreme Court has both original and
appellate jurisdiction.
• Important functions include:
• Resolving conflicts among the states
• Maintaining national supremacy in the law
• Ensuring uniformity in the interpretation of
national laws
• All nine justices sit together to hear cases and
make decisions (en banc)
• A justice may recuse himself/herself in cases where
there may be a conflict of interest
Supreme Court Cases
• Original jurisdiction, defined in Article III
• cases, e.g., suits between two or more states and/or cases
involving ambassadors and other public ministers
• Only 2 or 3 cases a year come from original jurisdiction
• Almost all the cases come from the appeals
process
• Cases may be appealed from both federal and
state courts
• The great majority of cases come from the lower
federal courts
Supreme Court Cases
• Cases appealed from state courts must
involve “a substantial federal question.”
• Cases from state courts are heard only in the
Supreme Court (not in the courts of appeal)
and then only after the petitioner has
exhausted all the potential remedies in the
state court system.
• The Court will not try to settle matters of state
law or determine guilt or innocence in state
criminal proceedings.
Supreme Court Cases
• Unlike other federal courts, the Supreme Court
controls its own agenda
• Rule of Four
– SCOTUS clerks screen thousands of cases
– Appealed cases are discussed in conference
– Four Justices must agree to hear a case
– A writ of certiorari is issued to request records
from the lower court
• Only about 100 out of the 8000+ cases are placed on
the SCOTUS docket
Supreme Court Cases
• The solicitor general (+ a staff of about two
dozen experienced attorneys) has an important
influence on the Court
• A presidential appointee (the third-ranking official
in the Department of Justice) in charge of the
appellate process of the federal government
• Avoiding frivolous appeals and displaying a high
degree of competence gains the confidence of
the Court
• This usually grants review of a large percentage of the
cases that the government want reviewed
SCOTUS Process
• First Monday in October through June, the Court
hears oral arguments in two-week cycles.
• Justices are familiar with the case before they ever
enter the courtroom.
• Clerks will thoroughly research the case.
• The Court will have received written briefs from
each party.
• They may also have received briefs from parties who are
interested in the outcome of the case but are not formal
litigants (known as amicus curiae—or “friend of the
court”—briefs).
More SCOTUS
Process
• Attorneys for each side have only a half-hour
to address the Court during oral argument.
• The chief justice presides in conference.
• The chief justice calls first on the senior associate justice
for discussion and then the other justices in order of
seniority.
• If the votes are not clear from the individual discussions,
the chief justice may ask each justice to vote.
• Once a tentative vote has been reached (votes are not
final until the opinion is released), an opinion may be
written
SCOTUS Opinions
• Opinion – Statement of legal reasoning behind a
decision. This will create a precedent.
• Justices are free to write their own opinions, to join in
other opinions, or to associate themselves with part of
one opinion and part of another
• Majority opinion – at least 5 justices must agree
• Dissenting opinions – Justices opposed to
majority decision
• Concurring opinions – Support a majority decision
but stress a different constitutional or legal basis for
the judgment
Implementation
• “John Marshall has rendered his decision; now
let him enforce it!” – Andrew Jackson
– Thought to be apocryphal, refers to a ruling denying
states any authority in Indian affairs
• “All deliberate speed” – Chief Earl Warren
– 10 years after Brown only 1% of Southern schools
were desegregated
• Court must rely on the president, Congress,
states, and miscellaneous government
officials to enforce its rulings
Implementation
• Judicial implementation refers to how and whether
court decisions are translated into actual policy.
• Court decisions carry legal (even moral) authority
• Supreme Court decisions are not self-implementing
– courts do not possess a staff to enforce their decisions
– they are actually “remands” to lower courts, instructing
them to act in accordance with the Court’s decisions
– Writ of Mandamus - an order from a court to an inferior
government official ordering the government official to carry
out the decision of the court
Implementation
• implementation of court decisions involves
several elements:
– an interpretation population (lawyers and other judges) who
must correctly sense the intent of the original decision in
their subsequent actions
– The implementing population (those responsible for putting
the decision into effect) will have an easier job if
implementation is concentrated in the hands of a few highly
visible officials.
– A consumer population (those affected by the decision)
must be aware of its newfound rights and stand up for them
Judicial Appointments
• Senate must confirm each by majority vote.
• Federal judges are constitutionally guaranteed the
right to serve for life “during good behavior”
• Federal judges may be removed only by
impeachment (only seven times in two centuries)
• No Supreme Court justice has ever been removed
from office (Samuel Chase was tried but not
convicted by the Senate in 1805)
• Salaries of federal judges cannot be reduced (a
stipulation that further insulates them from political
pressures)
Lower Courts
• Senatorial Courtesy
• Unwritten tradition (which began under George
Washington in 1789) which causes presidents to run
possible nominees past senators prior to nominating
– District court nominees are usually not confirmed if
opposed by senator of the president’s party from
state the nominee will serve
– Courts of appeal nominees are not confirmed when
opposed by a senator of the president’s party who
is from the nominee’s state
Background Check,
Lower Courts
• Federal Judges do not represent the
demographics of the U.S. population
• Most are lawyers (not a constitutional
requirement)
• Most are white males.
• Most have been a judge or prosecutor
• Most have participated in partisan politics
At the Highest Level
• All justices have been lawyers (so far)
• All but 6 (Marshall, O’Connor, Thomas,
Ginsburg, Sotomayor, and Kagan) have
been white males
• Most age 50s and 60s when they took
office
• Most from upper-middle or upper class
• Most have been Protestants
Supreme Court
Nominees
• Political Ideology – Presidents try to appoint justices with a
similar ideology (doesn’t always work out)
• Party/Personal Loyalty – 90% of appointments go to the
president’s party; patronage has diminished
• Senate Approval – informal, avoids problems
• Experience – many have served on Courts of Appeal or in
the Department of Justice
• Race & Gender – All were white males until 1967
• The “Litmus Test” – Presidents and Senators deny it
(much like Area 51 and Tupac) but there is usually a dealbreaking test of “ideological purity” that can doom a nominee
Confirmation Process
• Nominees’ names are submitted to the FBI
and ABA for thorough background checks
• Interest Groups have become increasingly
involved, both by swaying public opinion and
lobbying of senators
• The Senate Judiciary Committee holds public
hearings and makes a recommendation to the
full Senate
• The Senate votes, a majority is required
Nomination Difficulties
• Nominations will be difficult if:
– the president’s party is in the Senate minority.
– the president makes a nomination at the end of his
or her term.
– the nominee’s views are more distant from the
norm in the Senate.
– the nominee faces competence or ethics
questions.
– The Senate Judiciary Committee rejects the
candidate.
52-48
Policy Eras
• 1789 - Civil War: issues were the strength and legitimacy of
the federal government and slavery
• Civil War -1937: issues about the relationship between the
federal government and the economy predominated
• the courts traditionally favored corporations, especially when
government tried to regulate them
• 1938 to present: the issues before the Court have concerned
personal liberty and social and political equality
• the Court has enlarged the scope of personal freedom and civil
rights, and has removed many of the constitutional restraints on the
regulation of the economy
• Most recently, environmental groups have used the courts to
achieve their policy goals
The Marshall Court
1801-1835
• Growth of National Power
– Marbury v. Madison (1803) – The 1st use of
judicial review (a power discussed and
implied by the framers, but not explicit).
– Judicial review – Power of the courts to
determine whether acts of Congress and
President are in accord with the Constitution.
– The Court could now enhance or eliminate
policy instead of just reviewing it.
The “Nine Old Men”
• Under FDR, Congress passed dozens of laws
designed to end the Great Depression; but
SCOTUS declared the acts unconstitutional.
• In 1937, FDR proposed what critics called a
“court-packing plan.”
• Congress sets the number of justices, so FDR hoped to increase
the Court’s size and appoint additional justices sympathetic to the
New Deal.
• Congress never passed the plan, two justices (Chief Justice Charles
Evans Hughes and Associate Justice Owen Roberts) began
switching their votes in favor of New Deal legislation—a
transformation that was called the “switch in time that saved
nine.”
The Sick Chicken Case
• Schechter Poultry Corporation v. United
States (1935) – National Industrial Recovery Act
was declared unconstitutional because it
regulated purely local business that did not
affect interstate commerce.
The Warren Court
1953-1969
• A VERY activist court…much to Ike’s chagrin!!
• In 1954, the Court held that laws requiring segregation
of the public schools were unconstitutional (Brown v.
Board of Education).
• The Court expanded the rights of criminal defendants.
• It ordered states to reapportion their legislatures
according to the principle of “one person, one vote.”
• Right-wing groups called for Chief Justice Earl
Warren’s impeachment
• Critics argued that the unelected justices were
making policy decisions instead of elected officials.
The Burger Court
1969-1986
• More conservative than the liberal Warren Court, but
did not overturn the due process protections of the
Warren era.
• Narrowed defendants’ rights, but did not overturn the
fundamental contours of the Miranda decision.
• Wrote the abortion decision in Roe v. Wade (1973),
• Required school busing in certain cases to eliminate
historic segregation
• Unanimously ordered President Nixon to turn over the
White House (Watergate) tapes [United States v. Nixon
(1974)] and thus hastened his resignation.
Rehnquist & Roberts
1989-Present
• The Rehnquist and Robert’s Courts have been
slowly chipping away at liberal decisions regarding
• defendants’ rights
• abortion
• affirmative action
• The Court no longer sees itself as the special
protector of individual liberties and civil rights for
minorities
• The Court has typically deferred to the will of the
majority and the rules of the government.
Two Cases
– Bush v. Gore (2000) – Decided the 2000
presidential election…yes, the Supreme Court
decided, so never, ever, never again should
you think that just one vote has no effect...
– McDonald v. Chicago (2010) – The Court
extended 2nd Amendment’s limits on
restricting right to bear arms to state and local
gun control laws (remember incorporation?)
Oligarchy?
• In some ways the courts are not a very
democratic institution.
• Federal judges are not elected
• Federal judges are almost impossible to
remove and their salaries can’t be reduced
• Federal judges tend to be wealthy, socially
connected, and highly educated
• SCOTUS sets its own agenda
• The public has limited access to many court
proceedings
Popular Pressure
• The courts are aware of and sensitive to public opinion
– SCOTUS eventually swings around to join the policy
consensus (as it did in the New Deal)
– The Court is not as insulated from the normal forms of
politics as one might think
• The Court was flooded with mail during the abortion debate,
subjected to demonstrations and protests, and bombarded with
amicus curiae briefs
• Members of the Supreme Court are aware of the public’s concern
about issues, and this becomes part of their consciousness as they
decide cases
• Pluralism: interest groups influence confirmations, use the judicial
system to pursue their policy goals, & force the courts to rule on
important social issues
Conservatism vs.
Liberalism
• Justices are supposed to be “above politics”
and non-partisan
• However, they do have personal ideologies
– EX. – CJ Earl Warren (1953-69) and CJ
Warren Burger (1969-1986) were very liberal
– CJ William Rehnquist (1989-2005) and CJ John
Roberts (2005-?) swing conservative
Judicial and Political
Philosophy
Judicial Activism
Judges should interpret law loosely, using their power to
promote their preferred political and social goals. Judges are
said to be activists when they are likely to interject their own
values in court decision
Equality
Liberal
Freedom
Order
Leans to the left on public policy
and would vote Democrat
Conservative
Leans to the right on public policy
and would vote Republican
Freedom
Judicial Restraint
Legislators, not judges, should make the laws. Judges are said
to exercise judicial restraint when they rule closely to statutes
and previous cases when reaching their decisions. They follow
the “original intent” of the framers.
Judicial Restraint
• Judges play minimal policymaking
roles
• Policy decisions are best left to the elected
institutions of government
– Advocates believe court decisions on issues
like abortion and school prayer go well beyond
the role of “referee”
• Favored by many scholars and judges as
being the Framers’ original intent
Judicial Activism
• Judges make policy decisions with the
decision on a case
• Sometimes results in a new interpretation
of the Constitution
• The federal courts must correct injustices
when other branches refuse to do so
Activism II
• Advocates: the courts promote social justice,
especially of those who are weak politically or
economically (Brown v. Board)
• Do not to confuse judicial activism or restraint
with liberalism or conservatism
– In the early years of the New Deal, judicial activists were
conservatives.
– During the tenure of Earl Warren, activists made liberal
decisions.
– Conservative justices such as Chief Justice Warren Burger and
other conservative nominees of Republican presidents marked
the most active use of judicial review in the nation’s history.
Political Questions
• A doctrine which allows a court to limit
the cases they agree to hear
– Usually involves controversial issues (gay
marriage) or conflicts between the
president and Congress
• Federal courts have been much more
likely to find state laws rather than
federal laws unconstitutional
Statutory Construction
• A court interprets an act of Congress
and declares it unconstitutional.
– The legislature routinely passes
legislation that clarifies existing laws
– The legislature, in effect, overturns the
courts.
Checks on SCOTUS
• President appoints all judges
• Congress must confirm appointed judges
• Congress may alter the structure of the
court system (# of courts and justices)
• Congress has the power to impeach judges
• Congress may amend the Constitution if
the Courts find a law unconstitutional
– Ex. Income tax originally found
unconstitutionally so Congress added 16th
amendment