Judiciary Branch
AP Government
I. Intro
 In comparison to the other two branches
of government, the Judiciary was by far
the weakest branch when the
Constitution was written
 Article III, as written, didn’t give any
enumerated or implied powers to the
judiciary branch
I. Intro
 In its early years of existence, the
judiciary was called the “least dangerous
branch” for a reason - it was limited in
size and had not yet developed its power
of judicial review
 It had no enforcement powers and could
not raise or spend money
I. Intro
 Why is the Court so powerful today?
 First, the Court has the power of judicial
review, which is the chief weapon the Court
uses in our system of checks and balances
Second, the Court is constantly ruling on
the most important constitutional issues of
the day, making decisions involving millions
of dollars and affecting millions of people
I. Intro
 It’s important not to think of the Court
only as a legal entity: it is a political
institution that makes both policy and law
II. In the Beginning
A. Creation of the National Judiciary
 Because the Founders saw the judiciary as
the weakest branch, they decided to place
federal justices above the fray of politics
by giving them life tenures and did not
require them to run for office
II. In the Beginning
A. Creation of the National Judiciary
 The third branch of government began to
take shape in 1789 with the passage of the
Judiciary Act of 1789
 This act created the basic three-tiered
structure of the federal court system:
 The district courts that exist in every state
 The circuit courts which served as appellate
courts beginning in 1891
 The highest court in the land, the Supreme
Court
II. In the Beginning
B. The Marshall Court
 John Marshall is considered to be the
most important chief justice to ever serve
on the Supreme Court for two main
reasons:
1. His length of service on the Court - gave
the Court the stability and respect it needed
2. His influence - implementation of judicial
review which strengthened the federal
government (cases like Marbury; McCulloch;
Fletcher v. Peck)
III. Common Law Traditions
 The Court’s decisions are called
precedents (d) - Decisions that will serve
as a guide for future cases
 This reliance on precedent derives itself
from English Common Law that emerged in
12th century England
 Back in medieval England, judges would or
the king would make law that would become
common throughout the land
III. Common Law Traditions
 Common law then, operates under the
principle of stare decisis (d) - “Let the
decision stand”
 Gives our American Legal system both
predictability and stability
 The principle of stare decisis is crucial
because without it, laws could be
constantly changing - making life chaotic
 Common law, then, is judge-made laws that
over time, becomes common to all of
society
IV. American Legal System
A. Dual Court System
 There is one federal court system and 50
state court systems that exist
concurrently
 Cases may be heard in either system and
both systems are basically three-tiered, as
established by the Judiciary Act of 1789
 Before a state or federal court can hear a
case, it must have jurisdiction-that is, the
power to hear a case
IV. American Legal System
B. Jurisdiction Terms
Original Jurisdiction (d) - Where a case is
first heard. The court decides the facts
of the case (usually trial court with jury)
Appellate Jurisdiction (d) - Hears an appeal
from the party that LOST at the first
level. This court does not concern itself
with the facts of the case but whether or
not the trial was fair. In other words,
was due process followed?
IV. American Legal System
C. State Jurisdiction
 State courts can have both original and
appellate jurisdiction.
 State Supreme Courts (AKA Superior
Courts) has the final word in state system.
These courts can do one of two things:
Affirm (approve) the lower court’s ruling
 Reverse the lower court’s ruling and grant
a new trial

IV. American Legal System
D. Federal Jurisdiction
 The federal courts has jurisdiction in all
cases involving:
1. Hears cases involving federal laws,
treaties or the US Constitution. All issues
beyond the scope of the states
2. Lawsuits between citizens of different
states; foreign countries where the money
involved exceeds $75,000
V. Sources of American Law
D. Federal Jurisdiction
 The body of American law includes:
Federal and state constitutions
 Statutes passed by legislative bodies
 Aadministrative law and case law – the
legal principles expressed in court decisions

V. Sources of American Law
A. Constitutions
 The constitutions of the federal
government and the states set forth the
general organization, powers and limits of
government
 The U.S. Constitution is the supreme law
of the land
 A law in violation of the Constitution, no
matter what its source, may be declared
unconstitutional and thereafter cannot be
enforced
V. Sources of American Law
A. Constitutions
 Similarly, the state constitutions are
supreme within their respective borders
(unless they conflict with the U.S.
Constitution or federal laws and treaties
made in accordance with it)
V. Sources of American Law
B. Statutes and Administrative Regulations
 Statutes (laws enacted by legislatures)
increasingly have become more important in
defining the rights and obligations of
individuals
 Federal statutes may relate to any subject
that is a concern of the federal
government and may cover areas ranging
from hazardous waste to federal taxation
V. Sources of American Law
B. Statutes and Administrative Regulations
 State statutes include criminal codes,
commercial laws and laws relating to other
matters
 Cities, counties and other local political
bodies also pass statutes, which are called
ordinances
 These ordinances may deal with such
issues as zoning proposals and public safety
V. Sources of American Law
B. Statutes and Administrative Regulations
 Rules and regulations issued by
administrative agencies are another source
of law
 Today, much of the work of the courts
consists of interpreting these laws and
regulations and applying them to
circumstances in cases before the courts
V. Sources of American Law
C. Case Law
 The decisions rendered by the courts also
form an important body of law, collectively
referred to as case law
 Case law includes judicial interpretations
of the types of law just mentioned –
constitutional provisions, statutes and
administrative agency regulations
V. Sources of American Law
C. Case Law
 It is up to the courts, particularly the
Supreme Court, to decide what a
constitutional provision or a statutory
phrase means
 In doing so, the courts, in effect,
establish law
 Remember, the Constitution means
whatever the Supreme Court decides it
says!
VI. Federal Court System
B. Types of Federal Courts
1. US District Courts
 District Courts (94) - where 90% of all
federal cases end
 Each state has at least one district court
and some states (California, Texas and New
York) have four
 California’s 9th circuit is huge: it covers an
area from the Arctic Circle to the Mexican
border - with rulings affecting almost 50
million people
VI. Federal Court System
B. Types of Federal Courts
1. US District Courts
 This is where the majority of federal
cases are heard and decided with original
jurisdiction
VI. Federal Court System
B. Types of Federal Courts
1. US District Courts
 Federal jurisdiction at the district level
involves one of the following:
 The federal government is named as a
plaintiff or defendant
 There is a federal question to be decided
(treaty ; federal statute; violation of
federal criminal or civil law)
 There is a civil suit involving citizens from
different states that is more than $50,000
VI. Federal Court System
B. Types of Federal Courts
2. US Court of Appeals
 There are a total of 13 Court of Appeals,
also known as Circuit Courts
 Has only appellate jurisdiction
 The losing party at the district level can
appeal the decision to the appropriate
court of appeals
VI. Federal Court System
B. Types of Federal Courts
2. US Court of Appeals
 Court of Appeals has two types of
jurisdiction:
 Only have appellate jurisdiction.
Will hear
criminal and civil cases from district court
 Appeals from administrative agencies (called
the DC Circuit Court of Appeals-very
important court)
VI. Federal Court System
B. Types of Federal Courts
2. US Court of Appeals
 The appellate courts do not look at the
facts of the original decision nor do they
hear evidence or witnesses
They simply decide if the original court’s
trial was fair and if the judge was correct
in his/her rulings.
 The Court of Appeals hears are usually the
court of last resort because the Supreme
Court accepts very few cases
VI. Federal Court System
B. Types of Federal Courts
2. US Court of Appeals
 Courts of Appeals never hear new
evidence and never have juries
 They try and correct errors of law and
procedure that happened in the district
courts
The Court of Appeal decision is only binding
in their area of jurisdiction
 For example, Hopwood v. Texas is only
valid in the 5th Circuit
VI. Federal Court System
B. Types of Federal Courts
3. US Supreme Court
 In our system, the Constitution is the
highest law in the land and the Supreme
Court is the last word on what is
constitutional or not
 In the words of Justice Charles Evans
Hughes, “(The Court) is under the
Constitution, but the constitution is what
we say it is”
VI. Federal Court System
B. Types of Federal Courts
3. US Supreme Court
 The Supreme Court’s decisions are binding
on the whole nation and cannot be appealed
or reversed except by the Court itself or
by congressional statute or amendment
The Court’s decisions are called precedents
- decisions that will serve as a guide for
future cases
VII. Supreme Court At Work
A. Which Cases Reach the SC?
 Most of the cases the Court hears involves
appellate jurisdiction (94%), appeals from
lower federal courts or from the state
supreme courts
VII. Supreme Court At Work
A. Which Cases Reach the SC?
 The Court gets asked to hear cases from
thousands of litigants every year - almost
8,000; of which the Court will only grant
80-90 writs of certiorari (made more
certain)
 (d) - A common law writ issued by a
superior court to one of inferior
jurisdiction demanding the record of a
particular case
VII. Supreme Court At Work
A. Which Cases Reach the SC?
 The Court will look at two criteria’s in
deciding whether or not to grant cert:
1. The case must come from the US Court
of Appeals or State Supreme Court. (Might
have been decided differently by different
courts of appeals or a lower court’s ruling
disagrees with the Supreme Court’s views)
2. The case must involve an important
federal question. (Wider constitutional
implications beyond the two parties involved)
VII. Supreme Court At Work
A. Which Cases Reach the SC?
 All cases that the Justices might consider
are placed on the discuss list; then if four
(Rule of Four) Justices agree to hear the
case, the court will “grant cert”
VII. Supreme Court At Work
A. Which Cases Reach the SC?
 Sometimes the Court, in rare instances,
will hear cases involving original jurisdiction
(is actually in Article III):
1. Cases involving disputes between two or
more states. As was the case of Bush v.
Gore, 2000
2. The United States and a state
3. Foreign ambassadors and other diplomats
4. A state and a citizen of that state
VII. Supreme Court At Work
B. Deciding Cases
 The Supreme Court’s term lasts from the
first Monday in October through July
 The Court first will hear from interested
parties in the case - mostly interest groups
that will write amicus curiae briefs that
try and lobby the Justices before oral
arguments are even delivered in Court
VII. Supreme Court At Work
C. Decisions and Opinions
There are basically four types of opinions
that can be delivered:
 Majority Opinion
 Concurring Opinion
 Dissenting Opinion
 Per Curiam Opinion
VII. Supreme Court At Work
C. Decisions and Opinions
 Majority opinion (the official opinion of
the court): is written by one member of
the Court and reflects the majority of the
justice’s views
 Concurring opinion: written by a justice
who agrees with the majority decision but
for a different reason (usually done for
future precedents)
VII. Supreme Court At Work
C. Decisions and Opinions
 Dissenting opinion: one that is written by
one or more justices who disagree with the
majority
 Per Curiam opinion: an unsigned opinion
issued by the Court
VII. Supreme Court At Work
C. Decisions and Opinions
 If the Chief Justice is in the majority,
he/she will assign the job of writing the
decision
 If the Chief Justice is in dissent, the
most senior judge in the majority will
assign the decision
VII. Supreme Court At Work
C. Decisions and Opinions
 In issuing an opinion, the Court must
provide legal reasons for its positions
 These published opinions are very
important because they will be used as
precedents for the lower courts
 After the opinion is decided, the Court will
“remand” the case back to the lower
courts, sometimes for a new trial
VIII. Selection of Federal Judges
A. Judicial Appointments
 Presidents generally will only nominate
judges of their own party to the federal
bench (litmus test)
 During the Reagan-Bush era, 553 basically
conservative Republican judges were
appointed to the lower federal bench
 Led many liberal groups like the ACLU to
limit their practice of bringing civil
liberties cases to the federal courts.
VIII. Selection of Federal Judges
A. Judicial Appointments
All presidents want to leave their ideological
legacy on the federal bench after they retire
 Some scholars say that the “Supreme Court
follows the election returns”
 Some federal justices who dislike a sitting
president will wait until the President is gone,
even if they are very old or sick, in order for
the next president to have a chance at
nominating a more liberal or conservative
judge

VIII. Selection of Federal Judges
A. Judicial Appointments
 In the last 20 years, the average time
taken to fill a federal judgeship was 464
days- compared to a week or two in Europe
This has created a situation that has
severely burdened the caseload of the
other district courts
 Average federal case is now taking almost
three years to complete
VIII. Selection of Federal Judges
A. Judicial Appointments
 Supreme Court nominations have always
been controversial to one degree or
another
 The difference between the 19th century
and the 20th is that in the former,
nominations were always done in secret,
often times without judiciary hearings
 Result: senators could oppose a president’s
choice with little fear of the consequences
for their reelection
VIII. Selection of Federal Judges
A. Judicial Appointments
 Presidents generally defer selection of
district court judges to senators of their
own party who represent the state in which
a vacancy occurs on the federal bench - a
practice known as senatorial courtesy
 By tradition, the Senate Judiciary
Committee will not confirm a presidential
nominee until the senator of that nominee’s
home state has said it’s Okay
VIII. Selection of Federal Judges
A. Judicial Appointments
 Steps in nominating process:
 Investigation: Both the FBI and the ABA will
analyze a president’s short list for the
federal courts
 The FBI will do background checks to make
sure the nominee has not been in legal trouble
that could embarrass the president
 Since the Truman administration, the ABA
has been asked to rate the nominees (Well
Qualified-Qualified-Not Qualified)
VIII. Selection of Federal Judges
A. Judicial Appointments
 ABA Involvement discontinued during Bush
II Administration
 After these preliminary investigations, the
Senate Judiciary Committee will also do its
own investigation and hearings
VIII. Selection of Federal Judges
A. Judicial Appointments
 Lobbying by Interest Groups: While the
ABA is the only interest group that has
been asked to formally rate the nominees,
other interest groups in the last 20 years
have made their presence known- generally
lobbying AGAINST nominees
VIII. Selection of Federal Judges
A. Judicial Appointments
 The Senate Committee Hearings and
Senate Vote: Although public hearings did
not even occur until after 1955, since the
1980’s, it has become standard for the
Senate Judiciary Committee to get publicly
involved in the questioning of potential
Supreme Court nominees
VIII. Selection of Federal Judges
A. Judicial Appointments
 Even though the Senate can ask, the Court
nominees usually don’t answer their specific
questions - claiming these issues might
come up in the future in court
 After the Committee questions the
nominee, they give a recommendation to
the full Senate which then votes up or
down to appoint the nominee for life to the
Court
VIII. Selection of Federal Judges
A. Judicial Appointments
 Senate Vote: The Senate’s cooperation
with the President on nominating Supreme
Court judges has varied throughout history
From the beginning of Jackson’s term
through Ulysses Grant’s presidency in 1877,
the Senate was quite aggressive in not
approving presidential nominees
 From 1894 to 1968, the Senate always
went along with the President’s nominations
- the Senate only rejected three nominees

VIII. Selection of Federal Judges
A. Judicial Appointments
 From 1968 to 1991, there were two
Senate rejections and almost a third in
1991
In 1987, two of Ronald Reagan’s nominees
were rejected: Daniel Ginsburg for reports of
him smoking pot in the 1970’s, and Robert
Bork for his views on “original intent”
 In 1991, Clarence Thomas’s nomination was
almost lost at the last moment because of
allegations of sexual harassment

IX. Policy Making & the Courts
A. Judicial Appointments
 Judges, like politicians, have points of
views and political philosophies that come
out in their opinion writing
 Although stare decisis dictates that the
justices are supposed to follow
precedent, justices do have their own
personal interpretations of the
Constitution that influence their voting
IX. Policy Making & the Courts
A.
Judicial Review
B. Judicial Activism
 Judicial Activism (loose interpretation):
people who believe in judicial activism feel
that judges must actively interpret the
Constitution in order to make it relevant to
the issues of the 20th century
IX. Policy Making & the Courts
B.
Judicial Activism
 Activists argue that judges must, especially
in cases involving civil liberties and civil rights,
speak out for the minority that has not been
heard by the other two branches of
government
 If a court is judicially active, it usually means
it is engaging in judicial legislation - making
policy instead of interpreting the law
 The Supreme Court has struck down over 150
laws of Congress as well as 900 state laws
IX. Policy Making & the Courts
C. Judicial Restraint
 Judicial Restraint (strict interpretation):
people who believe in judicial restraint feel
that the judges should stick to the literal
meaning of the Constitution or the “original
intent “of the Founders when making their
decisions
IX. Policy Making & the Courts
C. Judicial Restraint
 In other words, if the Constitution is
silent on a certain issue in front of the
court, the Court should restrain itself and
allow the legislative branch or executive
branch to make a decision
IX. Policy Making & the Courts
 Judicial restraint and activism are not
always conservative and liberal ideologies,
respectively
 For example, prior to 1937, judicial
restraint was the battle cry of liberals who
objected to judges interpreting the due
process clauses of the 5th/14th
Amendments that struck down a lot of laws
designed to protect labor unions and child
and women labor
IX. Policy Making & the Courts
 After the Civil War, the Court refused to
apply the 14th Amendment to protect the
rights of newly freed slaves, even though
Congress ratified that amendment strictly
for that purpose
 Instead, the Court interpreted the 14th
amendments “due process” clause as
protecting a corporation as a person,
allowing it do whatever it wanted when it
came to conducting business or dealing with
workers
IX. Policy Making & the Courts
 Conservative judges were quite active
from the late 1870's to the 1930's in being
the guardians of the Robber Baron
Mentality- protecting laissez-faire
capitalism
 Yet, with the Warren Court in the late
1950s - conservatives were complaining
that there was too much LIBERAL
activism; the Warren Court consistently
upheld labor rights, civil liberty and civil
rights
X. Checking the Powers of the Courts
A. Executive Checks
 Through the power of appointment,
presidents have the ability of changing the
ideological direction of the Court long
after they’re out of office
 Also, presidents can refuse to obey the
orders of the Court, something that both
Lincoln and Jackson did in the 19th century
X. Checking the Powers of the Courts
B. Legislative Checks
 Court’s may make rulings that affect
millions of people at the national, state or
local level, but these rulings will not mean
anything if the legislatures do not
appropriate the funds to enforce those
decisions. (Prison conditions; gun checks;
business or environmental regulation)
X. Checking the Powers of the Courts
B. Legislative Checks
 The Courts’ rulings can also be overturned
by constitutional amendments, as has been
done in the 11th, 14th, 16th, and 26th
amendments
 Finally, Congress can rewrite statues or
pass new laws that can, in effect, overturn
a Supreme Court’s rulings (Civil Rights Acts
of 1991)
X. Checking the Powers of the Courts
C. Public Opinion
 Must be emphasized that the Court
doesn’t have an army of men in black robes
running around the country making sure
that states and localities implement the
rulings of the Court
 As stated before, the Court is a political
institution and even though it hates to
admit it, has generally followed the
dictates of public opinion
X. Checking the Powers of the Courts
D. Judicial Traditions and Doctrines
 Supreme Court justices & federal judges
typically exercise self-restraint in
fashioning their decisions
 In part, this restraint stems from their
knowledge that the other two branches of
government and the public can exercise
checks on the judiciary
 To a large extent this restraint is
mandated by various judicially established
traditions and doctrines
X. Checking the Powers of the Courts
D. Judicial Traditions and Doctrines
 For example, the Supreme Court will not
hear a meritless appeal just so it can rule
on the issue
 Also, when reviewing a case, the Supreme
Court typically narrows its focus to just
one issue or one aspect of an issue involved
in a case
 The Court rarely makes broad, sweeping
decisions on issues
X. Checking the Powers of the Courts
D. Judicial Traditions and Doctrines
 The doctrine of stare decisis acts as a
restraint because it obligates the courts,
including the Supreme Court, to follow
established precedents when deciding
cases
 Only rarely will the courts overturn a
precedent
X. Checking the Powers of the Courts
D. Judicial Traditions and Doctrines
 The courts will also not hear a hypothetical
case
 Additionally, if a political question is involved,
the Supreme Court will often exercise judicial
restraint and refuse to rule on the matter
 A political question is one that the Supreme
declares should be decided by the elected
branches of government
 For example, the Supreme Court has refused
to rule on the controversy regarding gays in
the military
XI. Why Judiciary is Important Today
 The federal judiciary is one of the most
important institutions in Americans political life
 It would be hard to imagine what life in this
country would be like if the judiciary branch was
not independent, but was under the control of
Congress
 Because the Supreme Court is the highest court
in the nation, its decisions must be followed by all
other US courts
 Thus, Supreme Court decisions can directly impact the
lives of millions of Americans. Consider Brown v. Board
of Education as just one example