Shea, Green, and Smith
Living Democracy, Second Edition
Chapter 4:
The Judiciary

Chapter 4: The Judiciary
The Adversarial System
The Adversarial
System
Judges serve as relatively passive and detached referees who do not argue with attorneys or challenge evidence.
The Inquisitorial
System
Judges take an active role in discovering and evaluating evidence, will question witnesses, and will intervene as deemed necessary.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Court Structure and Processes
Dual Court System
Separate systems of state and federal courts throughout the United States, each with responsibilities for its own laws and constitutions.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Court Structure and Processes
Trial Courts
Criminal prosecutions and civil lawsuits
Bench trials and jury trials
Appellate Courts
Hear appeals from judicial decisions and jury verdicts in the trial courts
Divided into eleven circuits
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Court Structure and Processes
Appellate Courts
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Court Structure and Processes
United States Supreme Court
The Supreme Court is the final arbitrator for matters concerning federal laws and the U.S. Constitution.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Court Structure and Processes
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Pathways Profile: Ruth Bader Ginsburg
Director of the Women’s
Rights Project at the ACLU in the 1970s
As a lawyer, successfully argued to the Supreme
Court to broaden the
Fourteenth Amendment’s
Equal Protection clause to include some types of gender discrimination
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
The Power of American Judges
“The legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and nonpartisanship.”
–Late Supreme Court Justice
Harry Blackmun
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Constitutional and Statutory Interpretation
What constitutes
“cruel and unusual” punishment?
Whenever there are disputes about the meaning of the words and phrases in constitutions and statutes, judges are asked to provide interpretations that will settle the disputes.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judicial Review
The Court has only exercised its power of judicial review of presidential actions a handful of times since its inception.
Marbury v. Madison (1803)
Chief Justice John Marshall
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Federal Judges’ Protected Tenure
Federal judges can only be removed from office by impeachment by Congress if they commit a crime.
How does this lack of accountability shape their decisions?
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judicial Selection
The process of judicial selection is a highly partisan and political process.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judicial Selection in the Federal System
Because of the power wielded by the Supreme
Court, presidents take a personal interest in selecting appointees.
Shea, Green, and Smith, Living Democracy, Second Edition
George W. Bush and Harriet Miers
Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Diversity in the Judiciary
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judicial Selection in the States
Four methods of judicial selection
1. Partisan elections
2. Nonpartisan elections
3. Merit selection
4. Gubernatorial or legislative appointment
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judges’ Decision Making
Case Precedent
The body of prior judicial opinions, especially those from the U.S. Supreme Court and state supreme courts, that establishes the judge-made law that develops from interpretations of the U.S.
Constitution, state constitutions, and statutes
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Political Science and Judicial Decision Making
Approaches to constitutional interpretation
Legal Model
Attitudinal model
Rational Choice
New institutionalism
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Action in the Court Pathway
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Pathways Profile: John G. Roberts, Jr.
First nominated for a judgeship by George
H. W. Bush but Senate did not vote on his nomination.
Nominated for second time after death of
Rehnquist in 2005.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Interest Group Litigation
Court-centered pathway
More attractive to smaller interest groups because it takes fewer resources.
Requires:
• Litigation resources
• Expertise
• Patience
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Pathways of Action:
The NAACP and Racial Segregation
NAACP began litigation in the 1930s to end segregation.
Succeeded in 1964 with
Brown v. Board of
Education.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Elements of Strategy
Selection of Cases
Choice of Jurisdiction
Framing the Arguments
Public Relations and the Political
Environment
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Student Profile: Tyler Deveny
Challenged permitting prayers at public school graduations
Supported by ACLU
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Implementation and Impact
Courts cannot automatically ensure that their decisions are enforced and obeyed.
The “Trail of Tears”
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Judicial Policymaking and Democracy
Although Alexander Hamilton expected the judiciary to be the weakest of the three branches, public policy can be shaped by the courts.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman

Chapter 4: The Judiciary
Pathways of Change
From Around the World:
Pakistan
President Pervez Musharraf attempts to remove chief
Supreme Court justice.
Law students protest the interference with the independent judiciary.
Shea, Green, and Smith, Living Democracy, Second Edition Copyright 2009 Pearson Longman