Chapter 12 Notes:
Everett Watters 200905164
Friday, March 25, 2011
Terms:
Amicus Curiae: literally, “friend of the court”; individual groups who are not parties to a lawsuit
but who seek to assist the Supreme Court in reaching a particular decision by presenting
additional briefs
Briefs: written documents in which attorneys explain, using case precedents, why the courts
should find in favour of their clients
Chief Justice: justice on the Supreme Court who presides over the Court’s public sessions
Civil Law: the branch of law that deals with disputes that do not involve criminal penalties
Court of Appeals: a court that hears the appeals of trial court decisions
Criminal Law: the branch of law that regulates the conduct of individuals, defines crime and
provides punishment for criminal offences
Defendant: the one against whom a compliant has been brought in a criminal or civil case
Dissenting Opinion: a decision written by a justice in the minority in a particular case in which
the justice wishes to express his or her reasoning /opinion in the case
Due Process of Law: the right of every citizen against arbitrary action by national or state
governments
Judicial Activism: judicial philosophy that posits that the court should go beyond the words of
the Constitution or Statute to consider the broader societal implications of its decisions
Judicial Restraint: judicial philosophy whose adherents refuse to go beyond the clear words of
the constitution in interpreting its meaning
Judicial Review: the power of the courts to review and if necessary declare actions of the
legislative and executive branches invalid or unconstitutional. The Supreme Court asserted this
power in Marbury vs. Madison (1803)
Jurisdiction: the sphere of a court’s power and authority
Opinion: the written explanation of the Supreme Court’s decision in a particular case
Oral Argument: stage in supreme court procedure in which attorneys for both sides appear
before the court to present their positions and answer questions posed by justices
Original Jurisdiction: the authority to initially consider a case. Distinguished from appellate
jurisdiction, which is the authority to hear the appeals from a lower court’s decision.
Per Curiam: a brief, unsigned decision by an appellate court usually rejecting a petition to
review the decision of a lower court
Plaintiff: the individual or organization that brings the complaint or charges in court
Plea Bargains: negotiated agreements in criminal cases in which the defendant agrees to plead
guilty in return for the states agreement to reduce the sentencing or severity of the criminal
charge the defendant is facing
Precedent: prior cases whose principles are used by judges as the basis for their decisions in
present cases
Senatorial Courtesy: The practice whereby the president, before formally nominating a person
for a federal judgeship, seeks the indication that senators from the candidates own state support
the nomination
Solicitor General: the top government lawyer in all cases before the Supreme Court in which
the government is a party
Stare Decisis: literally “let the decisions stand” The doctrine that a previous decision by a court
applies as a precedent in similar cases until the decision is overruled
Supremacy Clause: clauses in Article VI of the Constitution that states that laws passed by the
national government and all treaties “shall be be the supreme law of the land” and superior to all
laws adopted by any other state or subdivision
Supreme Court: the highest court in a particular state or in the United States. This court
typically serves and appellate function
Trial Court: the first court to hear a criminal or civil case
Writ of Certiorari: a decision of at least 4 of the 9 Supreme Court justices to review a decision
of a lower court; from Latin “to make more certain”
Writ of Habeas Corpus: a court order that the individual in custody be brought into court and
shown the cause for detention. Habeas Corpus is guaranteed by the Constitution and can be
suspended only in cases of rebellion of invasion
Key Points:
-Cases are Civil or Criminal…Common Civil cases are Contracts or Torts (Tort Law)
-Several different levels of Courts…. Trial to Supreme Court
-Pres. Appts Supreme Justices with Approval from Senate (1 chief, 8 associates)
-Cases are heard in federal courts if the U.S. government is a party in the case or if the case
involves federal statutes, treaties with other nations, or the U.S. Constitution.
-the Supreme Court’s power to review acts of Congress, although accepted as natural and rarely
challenged, is not specifically granted by the Constitution.
-The Supreme Court’s power to review state action or legislation derives from the Constitution’s
supremacy clause, although it is neither granted specifically by the Constitution nor inherent in
the federal system.
- The solicitor general is the top government lawyer in virtually all cases before the Supreme
Court in which the government is a party. The solicitor general controls the flow of cases by
screening them before any agency of the federal government can appeal them to the Supreme
Court.
-Law is determined/explained in terms of precedent and law
Notes:
The Legal System Settles Disputes
1. Court cases in the United States proceed under two broad categories of law: criminal
law and civil law.
2. In the area of criminal law, either a state government or the federal government is the
plaintiff who alleges that someone has committed a crime.
3. Civil cases are those between individuals or between individuals and the government in
which no criminal violation is charged. The two most common types of civil cases
involve contracts and torts.
4. In deciding cases, courts apply statutes and legal precedent. Precedents are applied
under the doctrine of stare decisis, the doctrine that a previous decision by a court
applies as a precedent in similar cases until that decision is overruled.
5. By far, most cases are heard by state courts.
6. Cases are heard in federal courts if the U.S. government is a party in the case or if the
case involves federal statutes, treaties with other nations, or the U.S. Constitution.
7. Although the federal courts hear only a fraction of all the cases decided every year in the
United States, federal court decisions are extremely important.
The Federal Courts Hear a Small Percentage of All Cases
1. The eighty-nine federal district courts are trial courts of original jurisdiction, and their
cases are, in form, indistinguishable from cases in the state trial courts.
2. The thirteen U.S. courts of appeals review and render decisions in approximately 10
percent of all lower-court and agency cases.
3. Federal judges are appointed by the president and confirmed by a majority vote of the
full Senate.
4. The Supreme Court is the highest court in the country and has the power and the
obligation to review any lower-court decision involving a substantial issue of public law,
state legislation, or act of Congress.
5. The Constitution does not specify the number of justices that should sit on the Supreme
Court, although since 1869 there have been nine—one chief justice and eight associate
justices.
6. The solicitor general can influence the Supreme Court by screening cases before they
reach the Court, submitting amicus briefs, and shaping the arguments used before the
Court.
The Power of the Supreme Court Is Judicial Review
1. The Supreme Court’s power to review acts of Congress, although accepted as natural
and rarely challenged, is not specifically granted by the Constitution.
2. The Supreme Court’s power to review state action or legislation derives from the
Constitution’s supremacy clause, although it is neither granted specifically by the
Constitution nor inherent in the federal system.
3. Appeals of lower-court decisions can reach the Supreme Court in one of two ways:
through a writ of certiorari, or, in the case of convicted prisoners, through a writ of
habeas corpus.
4. The solicitor general is the top government lawyer in virtually all cases before the
Supreme Court in which the government is a party. The solicitor general controls the
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flow of cases by screening them before any agency of the federal government can appeal
them to the Supreme Court.
Every federal judge employs law clerks to research legal issues and assist with the
preparation of opinions. Some justices rely heavily on their clerks for advice in writing
opinions and in deciding whether an individual case ought to be heard by the Court.
Groups and forces in society attempt to influence justices’ rulings on particular issues.
After filing written arguments, or briefs, attorneys present oral argument to the
Supreme Court. After oral argument, the justices discuss the case and vote on a final
decision.
The Supreme Court always explains its decisions in terms of law and precedent.
Despite the rule of precedent, the Court often reshapes law. Such changes in the
interpretation of law can be explained, in part, by changes in the judicial philosophy of
activism versus restraint and by changes in political ideology.
The framers hoped that the courts would protect liberty from the potential excesses of
democracy. Today, Americans of all political persuasions view the courts as useful
instruments through which to pursue their goals rather than as protectors of individual
rights, raising the question of whether the courts are just another set of policy-making
institutions.
-Courts passive power (Hamilton, Federalist papers), they do not have the power to form
legislation, but their role is instead to interpret and make sure the laws/bills are
(un)constitutional or not.
Origin of Judicial Review: Marbury v Madison:
-was the 1st time a court invalidated a law by declaring it unconstitutional
-it formed the basis for judicial review (the idea that courts may oversee and nullify the
actions of another branch of government) in the US under Article 3 of the Constitution
-Case resulted from a petition to the Supreme Court by William Marbury who had been
appointed by the President John Quincy Adams as Justice of the Peace; it was to force
Secretary of State James Madison to deliver the documents, but the court, with Chief Justice
John Marshal, denied Marbury’s petition, holding that part of the statute upon which he
based his claim, the Judiciary Act of 1789, was unconstitutional
“It is emphatically the province and duty of the judicial department to say what the law is”
-Marbury v. Madison 1803
Self Executing Treaties: some nations have these, where once it is signed it is legally binding
(by one level and or section of government)
-The U.S. does not, if the Pres. Signs something (bill, treaty etc.) it is not ratified as law until the
other houses of Congress approve that it is.