The Judiciary
Ch. 10, American Government,
O’Connor, et. al.
Supreme Court links
• http://www.cbsnews.com/8301-504803_16257563699-10391709/how-affirmative-actiondivides-two-justices/
• http://www.npr.org/blogs/thetwoway/2012/12/19/167614048/family-robert-borkwho-was-turned-down-for-supreme-court-dies
• http://supremecourt.c-span.org/CurrentCourt.aspx
• http://supremecourt.cspan.org/Video/JusticeOwnWords/SC_Jus_Granti
ngCertiorari.aspx
• http://www.cbsnews.com/video/watch/?id=70969
Brutus’s critique of the Judiciary
• No. XI:
– judges cannot be removed for bad decisions
– they can interpret Constitution according to “law and
equity” (“spirit”)
• No. XII:
– courts will expand jurisdiction into state concerns
– courts will control the legislature
• No. XV:
– the courts are too independent and should be made
subordinate to the legislature (as in Parliamentary system
of GB)
Hamilton’s defense of Judiciary
• It is the least dangerous branch (No. 78)
• Judiciary should NOT be subordinate to legislature,
because judicial review is necessary (No. 78 & 81)
• Defense of “judicial review”:
– Someone must decide in cases of “clashing laws”
– Judges may not substitute “will” for “judgment”
– No power to interpret Constitution “in equity”
(according to “spirit”)
• Judiciary is NOT the supreme branch: the
Constitution embodies the reason of the people
and is therefore supreme over ALL (No. 78)
Federalist No. 78
• Publius (Alexander Hamilton)
• Judicial power implied judicial review
• The independence of judges is an essential safeguard
against effects of society
• (Judicial Branch) has “neither FORCE NOR WILL, but
merely judgment…”
• “right of the courts to pronounce legislative acts
void…”
• “No legislative act, therefore, contrary to the
constitution, can be valid.”
• Federalist No. 78
LO 10.1
The Marshall Court: Marbury v. Madison
(1803) and Judicial Review
 Federalist No. 78
 Discontinued seriatim
 Marbury v. Madison
– Necessary and proper clause
– National supremacy
 McCulloch v. Maryland
– National supremacy
– Broad interpretation of the
commerce clause
To Learning Objectives
LO 10.1
The tradition of seriatim, to give opinions of the court
individually, came from what?
A.The Roman system of law
B.The British system of law
C.The Greek system of law
D.The colonial system of law
E.The French system of law
To Learning Objectives
LO 10.1
The tradition of seriatim, to give opinions of the court
individually, came from what?
A.The Roman system of law
B.The British system of law
C.The Greek system of law
D.The colonial system of law
E.The French system of law
To Learning Objectives
Roots of the Federal Judiciary
LO 10.1: Trace the development of the federal judiciary and the origins of judicial review.
• Framers believed judiciary posed little threat
of tyranny
• Judiciary Act of 1789
– Established three-tiered federal court system
• District (trials)
• Appeals
• Supreme
– Courts originally had very little power
To Learning Objectives
Marbury v. Madison (1803)
• Judicial review, executive privilege, federalism,
jurisdiction
• 1st time S.C. declared a Congressional act -Judiciary Act of 1789 -- unconstitutional
• Chief Justice John Marshall wrote decision
• Legitimized the role of the Supreme Court
• Marbury v. Madison (1803)
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National Supremacy and Slavery 17891861
• Marbury v Madison (1803)
• McCulloch v. Maryland (1819)
• Gibbons v. Ogden (1824)- interstate commerce
clause strengthened (under authority of federal
government)
• Dred Scott v. Sanford (1857)- Slaves are not
citizens of the U.S
Government & the Economy 1865-1936
• Dominant issue: Could the federal government
regulate the economy?
• Private property protected by the 5th/14th
amendments.
• Narrow interpretation of 14th and 15th
amendments in relation to blacks allowing
segregation: (Plessy v. Ferguson (1896) “separate
but equal”; excluded blacks from voting in many
states.
Government & political liberty (1936-present)
• Court establishes tradition of deferring to the
legislature in economic regulation cases.
• Courts shift attention to personal liberties as is
active in defining rights.
• Warren Court- liberal protection of rights and
liberties against government trespass.
• 1992- Court rules that states have the right to
resist some federal action.
Table 10.4: Who are the justices of the
Supreme Court in 2013?
To Learning Objectives
Figure 10.1: How is the American judicial system
structured?
Back
To Learning Objectives
Federal Courts Structure
Congress created 2 types of lower courts to handle cases that the
Supreme Court does not need to decide.
1) “Constitutional Courts” exercise judicial powers found in
Article III
• Court of Appeals, U.S. District courts, Supreme Court
• Judges serve for life, with good behavior
• Salaries not reduced while in office
• Appointed by President, confirmed by Senate
2) “Legislative courts” – derived from Article I
• no life tenure
• Court of Appeals to Armed Forces
• Territorial Courts (i.e. Guam, or Virgin Islands)
U.S. District and Appellate Courts
Figure 10.2: What are the boundaries of federal district
courts and courts of appeals?
Back
To Learning Objectives
Constitutional Courts
• District Courts (94)
• At least 1 in each state
• Trial courts of the federal system
• Single judge and jury present.
U.S. Court of Appeals (13)
• appellate courts or “circuits” (11 + DC Circuit + Federal
Circuit)
• located regionally
• panel of 3 judges
Cases litigated beyond the federal district courts usually go to
one of the regional appeals courts known as the U.S. Courts
of Appeals.
There are 13 appeals courts; 12 cover cases from geographic
areas known as circuits.
Judges on these courts sit in panels of 3; they aim at
correcting errors in the lower courts and making policy
through the opinions they write.
a.
Opinion writing gives judges influence beyond
the immediate case.
(1)
A precedent is a decision in one case that
provides a reason for deciding a similar case in the same way.
(2)
Stare decisis, which means “Let the decision
stand,” is decision making according to a precedent rather
than some other rule.
The Federal Court System
LO 10.3: Explain the organization of the federal court system.
• District courts
• Cases where federal government is a party
• Cases involving constitutional questions
• Cases between states or citizens of different states
• Courts of appeals
•
•
•
•
Three-judge panel
Look at errors of procedures of law
Appellants must submit a brief to have case heard
•
•
•
•
Nine-judge panel
Appellate and original jurisdiction
Ensures uniform interpretation of law
Maintains national supremacy
Stare decisis
• Supreme Court
To Learning Objectives
Jurisdiction of Courts
• Dual court system- state courts and federal courts have
their own jurisdiction.
• Federal cases listed in Article III and the 11th
Amendment.
• Federal question cases: involving US Constitution,
federal law and treaties.
• Also cases involving different states or citizens of
different states.
The Jurisdiction of the Federal Courts
Federal or State Court?
• Some cases can be tried at either level.
• Example: if both federal and state laws have
been broken. (dual sovereignty)
• State cases can sometimes be appealed to the
Supreme Court….a federal question must be
raised.
Route to the Supreme Court
• Most federal cases begin in district court, then are
appealed to circuit court.
• Supreme Court picks which cases it wants to hear. Rule
of Four- 4 justices agree to hear case, then issue a writ
of certiorari
• Usually pick cases that deal with:
1) significant federal or constitutional question
2) conflicting decisions by circuit courts
3) constitutional interpretation by a high state court,
about state or federal law.
Table 10.1: What kinds of cases does the
U.S. Supreme Court hear?
To Learning Objectives
Going Supreme!!
• About 8000 requests for certiorari are submitted, the
Supreme Court usually limits its DOCKET to no more
than 100 cases in a year.
• The Supreme Court sometimes hears cases on original
jurisdiction:
1) when a foreign ambassador is named in a case
2) when a state is named in a case
3) when maritime/admiralty law is involved.
docket
•
•
•
•
•
•
•
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Supreme Court’s agenda of cases to be heard
+/- 100 granted writ of certiorari “to be informed”
2-3 are original jurisdiction
Rule of Four
stare decisis
Appellate jurisdiction
Must address a Constitutional or federal question
Figure 10.3: How many cases does the Supreme
Court handle?
Back
To Learning Objectives
Figure 10.4: How does a case get to the Supreme Court?
Back
To Learning Objectives
LO 10.5
How Does a Case Survive the
Process?
• Federal government
• Solicitor general
• Amicus curiae
• Conflict among the courts of appeals
• Necessary to resolve dispute
• Interest group participation
• Amicus curiae
• NAACP
• Washington Legal Foundation
• Brown v. Board of Education (1954)
• Planned Parenthood v. Casey (1992)
To Learning Objectives
The Supreme Court Today
LO 10.5: Evaluate the Supreme Court’s process for accepting, hearing,
and deciding cases.
• Deciding to Hear a Case
• Supreme Court hears
approximately one percent of
cases filed
• Supreme Court issues writ of
certiorari to hear case
• Rule of Four
• At least four Justices must sign
on to a writ of certiorari
• Role of clerks
• Initial filtration process
To Learning Objectives
Supreme Court in Action
• Each side has an 1/2 hour for oral arguments,
including interruptions for questions by justices.
• Briefs are submitted by each side and friends of
the court - amicus curiae briefs.
• Solicitor general- 10th justice
Conference Procedures
•
•
•
•
Judges meet in chambers.
Chief Justice speaks first, votes last
Selection of opinion writer
Types of opinions:
1) per curiam- brief and unsigned
2) majority opinion- official decision
3) concurring opinion- agree, but for different reason
4) Dissenting opinion- minority opinion.
How to interpret the Constitution?
There is much debate on how the Constitution should
be interpreted:
• Strict constructionists - judges are bound by the
wording of Constitution (narrowly interpret) as it
was intended by the Framers.
• judicial activism - judges should look to the
underlying principles of the Constitution (broadly
interpret); judges should use their power broadly to
further justice.
• Judicial restraint – allow decisions of lower courts
and other levels of gov’t to stand, even when they
offend the judge’s own principles.
Toward Reform: Power, Policy Making, and
the Court
LO 10.7: Assess the role of the Supreme Court in the policy-making
process.
• Policy making
– Judicial decisions make policy
• Judicial review
• Citizens United (2010)
– Overruling itself
• Plessy v. Ferguson (1896)
• Brown v. Board of Education (1954)
• Implementation
– Not always easy
• Brown v. Board of Education (1954)
• Reynolds v. Sims (1964)
To Learning Objectives
Judicial policymaking occurs…
(1) When judges interpret prior judicial decisions. This
is known as common law or judge-made law.
(2) When judges interpret legislation. This is known as
statutory construction.
(3) When judges interpret the Constitution. This is
known as judicial review.
(4) Because the circuit courts are not bound to
consult with each other about application of the
law, there may be variance in their interpretations.
Such conflicts are corrected by review at the
Supreme Court level.
LO 10.6
A strict constructionist believes in a(n) ____________
constitution.
A.living
B.inherently evil
C.inherently good
D.Christian
E.dead
To Learning Objectives
LO 10.6
A strict constructionist believes in a(n) ____________
constitution.
A.living
B.inherently evil
C.inherently good
D.Christian
E.dead
To Learning Objectives
LO 10.7
In 1962, Justice William Brennan Jr. made a distinction between a
political question and a _______________.
A.political issue
B.religious question
C.social question
D.loyalty issue
E.religious issue
To Learning Objectives
LO 10.7
In 1962, Justice William Brennan Jr. made a distinction between a
political question and a _______________.
A.political issue
B.religious question
C.social question
D.loyalty issue
E.religious issue
To Learning Objectives
LO 10.4
How Federal Court Judges Are Selected
• Confirmation Process
– Investigation
• American Bar Association
– Lobbying by interest groups
• Bork
• Christian organizations
– Senate committee hearings
and vote
• More intensive since 1980s
• Appointments to Supreme Court
– Importance
– Unpredictability
To Learning Objectives
Selecting Judges
• All constitutional court judges are nominated by
the president and confirmed by the Senate, on
recommendation from the Senate Judiciary
Committee.
• Senatorial Courtesy usually employed for district
judges.
The Litmus Test
• Presidents seek judges who share an ideology
similar to their own.
• Greatest impact on court decisions is ideology.
• Litmus test during Reagan/Bush administrations
was pro-life.
Table 10.7: What do Supreme Court clerks do?
Back
To Learning Objectives
Checks on Judicial power
Congress:
1) confirmation and impeachment
2) change the number of judges
3) changing jurisdiction of courts
4) revising legislation
5) amending the Constitution
LO 10.3
Stare decisis literally means what?
A.The right of the court to decide
B.The wise will decide
C.Staring at decisions
D.The stars make decisions
E.Let the decision stand
To Learning Objectives
LO 10.3
Stare decisis literally means what?
A.The right of the court to decide
B.The wise will decide
C.Staring at decisions
D.The stars make decisions
E.Let the decision stand
To Learning Objectives