Judiciary (Supreme Court)
“Whenever you put a man on the
Supreme Court, he ceases to be
your friend.” – Harry S. Truman
“The Supreme Court has ruled that they cannot have a nativity scene in
Washington, D.C. This wasn't for any religious reasons. They couldn't find three
wise men and a virgin.” – Jay Leno
“Least Dangerous
Branch”
 Article III, as written, didn’t give any enumerated
or implied powers to the judiciary branch
• Alexander Hamilton penned in the Federalist #
78 that the judiciary would be the “least
dangerous branch of government. It lacked the
teeth of both the other branches of government;
it had neither the power of the sword nor the
power of the purse.”
 It had no enforcement powers and could not
raise or spend money
Constitution
• Article III of the Constitution establishes:
– a Supreme Court in which the judicial power of the
United States is vested
– life tenure or 'good behavior' for judges
– judges receive compensation that cannot be diminished
during their service
– such inferior courts as Congress may choose to
establish
– the original jurisdiction of the Supreme Court
• The intent of Article III was to remedy the failings
of the Articles of Confederation which left judicial
matters to the states.
Today
 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
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
Common Law Traditions
 The Court’s decisions are called precedents (d) Decisions that will serve as a guide for future cases
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
American Legal System
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

American Legal System
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?
American Legal System
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
American Legal System
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
Sources of American
Law
The body of American law includes:
 Federal and state constitutions
 Statutes passed by legislative bodies
 Administrative law and case law –
the legal principles expressed in court
decisions
Sources of American
Law
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
 A law declared unconstitutional cannot be
enforced
 Similarly, the state constitutions are supreme
law within their borders (unless they conflict
with the U.S. Constitution or federal laws and
treaties made in accordance with it)
• Amendment II
• A well regulated Militia, being necessary to
the security of a free State, the right of the
people to keep and bear Arms, shall not
be infringed.
Sources of American
Law
Statutes and Administrative Regulations
 Statutes (laws enacted by legislatures)
increasingly have become more important in
defining the rights and obligations of individuals
 These statutes typically cover three areas
 Federal statutes -federal government (may cover areas
ranging from hazardous waste to federal taxation)
 State statutes – state government (may include criminal
codes and commercial laws)
 Ordinances – Cities and counties (may deal with zoning
proposals and public safety)
Sources of American
Law
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
 It is up to the courts, particularly the Supreme
Court, to decide what a constitutional provision or
a statutory phrase means
In the Beginning
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
In the Beginning
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
Federal Court System
Step 1 – DISTRICT COURTS
– 94 US Dist. – Hear 342,000 cases/yr
– Trial by jury (only federal court with jury)
– Where the majority of federal cases are heard and
decided with original jurisdiction
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 $75,000
Federal Court System
• Step 2 – APPEAL (CIRCUIT) COURTS
– 13 Courts of Appeal – Hear 61,000 cases/yr
– Panel of 3 judges, sometimes more
– No cases start here, review district court
decisions
 Court of Appeals has two types of jurisdiction:
 Only have appellate jurisdiction. Will
hear criminal and civil cases from
district court
 Appeals from government administrative
agencies (called the DC Circuit Court of
Appeals-very important court)
Federal Court System
 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
Federal Court System
• Step 3 – US Supreme Court
– 2003 – Argued 84 cases, decided 71
– Hear appeals – writ of certiorari
– Rule of 4 – 4 justices needed to agree to hear a
case
Chief Justice John Roberts
Federal Court System
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
 In the words of Justice Charles Evans Hughes,
“(The Court) is under the Constitution, but the
constitution is what we say it is”

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)
JUDICIAL AUTHORITY
Supreme Court has the power to declare a law
unconstitutional with the principle of judicial
review.
NATIONALISM
The National Government is over the states.
PROPERTY RIGHTS
Private property is sacred and contracts
legal.
JUDICIAL AUTHORITY
Marbury vs. Madison
NATIONALISM
McCulloch vs. Maryland
Gibbons vs. Ogden
Cohens vs. Virginia
PROPERTY RIGHTS
Dartmouth College vs. Woodward
Fletcher vs. Peck
Shaping the Government
• Martin v. Hunter’s Lease (1816)
– The Supreme Court established the
principle that it had jurisdiction over
state courts in cases involving
constitutional rights
Marbury vs. Madison, 1803
• Case: William Marbury, a Federalist and a “midnight
appointment” of President Adams, did not receive his
commission from Sec. of State, James Madison.
Marbury asked the SC to issue a “writ of mandamus”
forcing Madison to deliver his commission.
• Decision/Reason: Marshall dismissed suit, but in
doing so struck down part of Judiciary Act of 1789
because SC had no authority to give Marbury his
commission.
• Significance: Established precedent of “judicial
review” and the Supreme Court, not states had power
to declare laws of Congress unconstitutional.
•Prior to this case, the Supreme Court had been the weakest of
the three branches of government.
•Earlier, the belief was the states could nullify a law
•1803, the Supreme Court established its role as the final
arbitrator (authority) of the meaning of the Constitution and its
position of equality.
•By setting a precedent for judicial review or the Supreme Court
can declare a law unconstitutional not the states or Congress.
•It also “sent the message” that the National Government is the
last authority thus reinforcing Marshall’s belief in a strong
central government over the states.
Chief Justice John
Marshall stated,
•“The Constitution is either a superior paramount law,
unchangeable by ordinary means, or it is on a level with
ordinary legislative acts, and like other acts, is alterable when
the legislature shall please to alter it.
•If the former part of the alternative be true, then a legislative
acting contrary to the constitution is now law; if the latter part
be true, then written constitutions are absurd attempts, on
the part of the people to limit a power in its own nature
illimitable.
•It is emphatically the province and duty of the judicial
department to say what the law is
•If, then, the courts are to regard the Constitution and the
Constitution is superior to any ordinary act of the legislature,
the Constitution and no such ordinary act, must govern the
case to which they are both applicable”.
Implementation
• “John Marshall has rendered his decision;
now let him enforce it!” – Andrew Jackson
• “All deliberate speed” – Chief Earl Warren
– 10 years after Brown only 1% of Southern
schools were desegregated
• Court must rely on branches, states, and
officials to enforce its ruling
Supreme Court At Work
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.(94%) (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)
Supreme Court At Work
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
Supreme Court At Work
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
Supreme Court Caseload

Supreme Court At Work
Decisions and Opinions
•
When an opinion is written (a decision), it often takes
months and many drafts
 There are basically four types of opinions that can
be delivered:
 Majority Opinion
 Concurring Opinion
 Dissenting Opinion
 Per Curiam Opinion
Supreme Court At Work
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)
Supreme Court At Work
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
Supreme Court At Work
Decisions and Opinions
 If the Chief Justice is in the majority, he/she will
assign the job of writing the decision
 The Court must provide legal reasons for its positions
 They will be used as precedents for the lower courts
 If a case is overturned, the Court will “remand” the case
back to the lower courts, sometimes for a new trial
 If the Chief Justice is in dissent, the most senior
judge in the majority will assign the decision
How Supreme Court
Decisions are Made
Case on the Docket
Approx 95
Justices Conference
Cases discussed
Votes taken
Opinion Assigned
Briefs and Amicus
Briefs submitted
Opinions Drafted
and Circulated
Oral Argument
Opinions Announced
Public Influence on
Justices
•
•
Justices are NOT elected, appointed by Prez
However, not entirely immune to public
opinion
1. Appointed by Prez, agree with his ideologies,
Prez was elected, chosen because of bias
2. Justices are aware of public opinion, and are
aware that decisions that flagrantly go against
public opinion will not be implemented
Appointment
• President appoints judges for ALL federal
court vacancies
• Senate must confirm all nominations by
majority vote (Advice and consent)
• Senatorial courtesy – tradition started by
G.Washington to have senators select
locally appointed judges in their states
Nomination Criteria
No constitutional
qualifications
Competence
Ideology/Policy
Preferences
Rewards
Pursuit of Political
Support
Religion
Race and gender
Appointment
 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
 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
Federal Selection Process
President
Senators
Dept. of
Justice
ABA
Interest Groups
Senate
Jud. Comm.
Senate
Appointment
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 QualifiedQualified-Not Qualified)
Appointment
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
Appointment
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
Appointment
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
Appointment
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
Appointment
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
Appointment
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
Who Is Appointed?

Conservatism vs.
Liberalism
• Justices are supposed to be “above politics”
• 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
How the Justices
Vote
Legal Factors
• Judicial Philosophy
– Judicial Restraint - advocates minimalist roles for
judges
– Judicial Activism - feels that judges should use the
law to promote justice, equality, and personal liberty.
• Precedent
– Prior judicial decisions serve as a rule for settling
subsequent cases of a similar nature.
How the Justices
Vote
Extra-Legal Factors
• Behavioral Characteristics
– The personal experiences of the justices affect how they
vote. Early poverty, job experience, friends, and relatives
all affect how decisions are made.
• Ideology
– Ideological beliefs influence justices’ voting patterns.
• The Attitudinal Model
– A justice’s attitudes affect voting behavior.
• Public Opinion
– Justices watch TV, read newspapers, and go to the store
like everyone else. They are not insulated from public
opinion and are probably swayed by it some of the time.
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.
District Court Appointees

Constraints on the
Power of Federal Courts
1. Adversarial system – decision must be
made between 2 choices, and court can’t
bring up an issue
2. Justiciable dispute – must judge actual
situations, not hypothetical situations
3. Political question – absence of law to rule
on a case and the court calls on the
Congress to create law
Ex. – gay marriage – equal protection
Checks on the SC
• 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
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
Legislative Checks

Court’s 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)
 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)
Public Opinion
 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
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
 For example, the Supreme Court will not hear a
meritless appeal or hypothetical case
 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 to not make
broad sweeping changes
Judicial Traditions and
Doctrines
 The doctrine of stare decisis acts as a restraint
because it obligates the courts to follow
established precedents when deciding cases
 Only rarely will the courts overturn a precedent
 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 (ex:
gays in the military)
Judiciary’s 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