• Section 1 =
Supreme
Court and
Inferior
Courts
1. Hierarchy?
• One
Supreme
Court
• Lower Courts
= Congress
• Section 2 =
Judicial Powers
1. Power to hear
following cases
a) cases affecting
ambassadors,
ministers or
consuls
b) controversies
between two or
more states
c) between citizens of
different states
d) between citizens of
the same state if
involves
Constitution issue
• Section 2
• Jurisdiction (power to hear
a case)
• Original = trial court
• Cases affecting
Ambassadors, other public
Ministers & Consuls
• Cases where State a party
• Appellate= only deciding
issues of law, right to
review decisions of lower
courts
• All other cases are app jur
Trial of crimes will
be done by Jury, and
trial will take place
in the state where
the crime is
committed, except
in cases of
Impeachment
• US Constitution & State
Constitutions
• US Supreme law of land!
Article ____? What happens if
there is a conflict?
• Statutes (Congress – United
States Codes)
• Administrative Regulations
• Common Law - ex. Negligence &
Failure to warn
• Case Law
• Again, Courts have pwr to
interpret all of these sources
because of …
• JUDICIAL REVIEW!
Example – New Jersey
SCOTUS
United States Court of Appeals for
the Third Circuit
United States District Court for the
District of New Jersey
2 Basic Requirements to bring case to Court
• 1) Standing 2) Jurisdiction
• Standing –
• Stake in the matter. Must have suffered
an actual or threatened harm. Issue
must be actual controversy – not
hypothetical situation
• Example – case about right to burn
American Flag. You couldn’t bring a case
unless you 1) burned the American Flag
and 2) were punished for it (fired from
govt job, fined, jail etc)
• If court can dismiss case for standing,
doesn’t have to be decided on the
merits
How do you know which Court to use??
• Jurisdiction: Pwr of a court to
hear your case
• Fed Courts can only hear
certain cases (as set forth in
Article III, Section 1)
• Federal Question
Jurisdiction – must involved
Federal Law or Constitution
• Diversity of Citizenship
Jurisdiction (NJ vs. NC) –
reasoning, home field
advantage/ prejudice
Parties to a Lawsuit
• Trial Court
• Plaintiff vs. Defendant (civil)
• State vs. Defendant (criminal)
• Appellate Court
• Appellant vs. Appellee
• Class Action lawsuits
• Mrs. Smith’s pie shells
• Interest groups
• Use the courts to try to change policies
• Amicus Curiae briefs used to influence the
courts
• “friend of the court” briefs used to raise
additional points of view and information not
contained in briefs of formal parties
Types of Federal Courts
Specialized Courts = Limited Jurisdiction
• Specialized courts have
limited jurisdiction –
meaning they can only try
cases involving certain types
of claims
• Examples – Bankruptcy
Court, Tax Court
United States District Courts = Trial Courts
• Trial courts are courts where trials are
held and testimony is taken
• General jurisdiction – can hear civil
and criminal cases, wide variety
• Jury’s purpose is to be finder of fact!!
Told law by judge and lawyers
• Procedural Rules (at all levels)
• Held in Contempt for violating
• Example -- Cigarette case, failure to
warn post 1969
What happens if you lose at trial court?
• You can appeal! Not automatic,
everyone has right to appeal, not
everyone granted
• Panel of 3 judges, NOT another trial
• ONLY deciding whether trial court
committed error of law !
• Cigarette example – did required
warning labels PREEMPT (supremacy
clause, failure to warn claim) NOT
deciding facts of whether Plaintiff was
actually warned
• Will only challenge finding of fact if
clearly contrary to evidence
presented or NO evidence presented
to support finding
US Appellate Court System
The Supreme Court
• 8 Justices, 1 Chief Justice (not in
Const!)
• Article III – SC superior, Congress
has pwr to create lower courts
• SC can exercise original
jurisdiction (rare)
• Acts as trial court
• Most cases SC uses appellate
jurisdiction
• Can hear cases from Fed Circuit Cts
of Appeal OR
• State Supreme Courts
• Only if the case involves a
Federal Question! (prob
Constitution issue)
Which cases reach the Supreme Court?
• Term – Oct-June/July
• Process for Writ of Cert-• Party files petition for Writ Cert
• 90-95% of Writs denied! WHY?
• If denied, doesn’t mean SC agrees, just
mean lower court decision stands as
final, but denial not precedent
• (if issued, order asking lower court to
send record of case)
• Factors?
• Conflict in lower courts
• Lower courts ruling conflicts with SC
• Decision will affect many
• Rule or 4 – at least 4 justices have to
approve to issue Writ
How
are
cases
decided?
• CT hears Oral “arguments”
• Judges make decision, issue written
opinion (includes reasons, law etc)
• If agree with lower court = affirmed
• Disagree with lower court= reversed
(sometimes also remanded)
• Applies to Ct of Appeals as well
• All 9 agree? Unanimous (rare)
• Types of opinions?
• Majority opinions (writing to represent
the decision of majority)
• Concurring opinions (agrees with
majority decision but disagrees on some
points)
• Dissenting opinions (disagrees with
decision)
Role of the Chief Justice
• Presides over SC
• Enters courtroom first and casts first vote
when justices deliberate (vote doesn’t carry
more weight)
• If votes with majority may choose to write
opinion or assign to associate justice
• Presides over impeachment trials
• Not most senior member
• Head of Judicial Conference of US, which is
chief administrative body of US federal
courts (indirectly oversees 5.5 billion budget
of group)
Judicial Principles for deciding cases
• Precedent =
• Deciding new cases based on prior
similar decisions.
• Stare Decisis =
• Obligates judges to follow
precedents set previously by their
own courts or by higher courts that
have authority over them
• What does this mean?
• Justices defer to prior SC
decisions
• Justices apply precedent to
current cases and rule based
on past decisions
Selection of Federal Judges
• Article III Section 2 = Pres appoint,
with advice and consent of Senate
• ALL federal judges are appointed!
• How many Senators must confirm?
• How long do Justices or Federal Judges
serve?
• “Good behavior” = FOR LIFE (death
or retirement)
• Why?
• Founders wanted to make sure
justices free from political pressures
or making decisions so would get reelected or re-appointed
Nomination Process
• Always works same way
• Pres makes nomination, Senate either confirms
or rejects (can be big disputes)
• First sent to Senate Judiciary Comm
• SJC and subcommittee invites testimony and holds
hearings
• Senatorial Courtesy –
• Constraint on Pres’ appt. pwrs
• Allows Senator of Pres’s political party to veto judicial
appointment in his/her state by way of “blue slip”
• In past, Pres officially nominates judges for fed
district court, often originate with senator of
president’s party for state where opening
• Carter ended with establishing independent
commission to oversee initial nomination
process, Reagan re-established pres control
Nomination Process
• “Recess Appointments”
• Hearings for lower court nominees
equally as bitter
• WHY battleground?
• Many view the courts as agents of
social change
• Serve for life
• So ideology and political views of
potential justices should be matter or
public concern and political debate
Characteristics of Supreme Court Nominees
politically relevant to appointment process
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acceptability to Senate
Age
Competence/qualifications (ABA rating)
Gender
Ideology
Issue orientation (litmus test)
Judicial experience
Partisan identification
Race/ethnicity
Religion
Region
Reputation (prestigious education, ethics,
character)
• Role (activist vs. restraint)
The Courts
• Judiciary forms part of our political process & courts
make policy.
• How do Courts make policy?
• SC has extraordinary pwr to make policy through
JUDICIAL REVIEW!
• What is Judicial Review?
• Pwr of SC or any court to determine whether a law or other action is
unconstitutional. Pwr to determine what the law means!
• Court gave itself pwr, NOT in Constitution!
• TJ’s Sec. of State James Madison is sued for not
delivering the appointment of William Marbury
• What would happen if the Court
issued the writ (decision), but the
executive branch refused to
comply?
• Madison & TJ win the battle
• Marshall said it is not in his power to make
Madison (TJ) give the writ to Marbury
• Supreme Court wins the war
• Marshall proclaims Judicial Review
• “It is emphatically the province and duty of the
Judicial Department to say what the law is. Those
who apply the rule to particular cases must, of
necessity, expound and interpret that rule. If two
laws conflict with each other, the Courts must
decide on the operation of each.”
• Supreme Court decides if laws are constitutional
or not
• Why is this a big deal?
• Theory of Judicial Review makes the Judicial
Branch and equal branch of government!!
• Win for Checks & Balances
• PWR of judicial review permits court to overrule or
find unconstitutional all laws (ie go back to types of
law – lower court decisions, statutes (acts of
Congress), executive orders, state laws
• How can a SC decision be overruled?
• Amendment the Constitution but remember SC job is to
interpret Constitution so couldn’t find an Amendment
unconstitutional
• Congress can also try and pass diff law fixing the issue
Judicial Review
• How does judicial review empower
the Court compared to other
branches?
• It gives the Court the power to overturn
laws passed by Congress or actions taken
by the president and/or exec branch
• Brown v. BOE – segregation ruled
unconstitutional
• Gives the court the pwr to limit actions
taken by Congress or the
president/executive branch
• Example – US v. Nixon – limited use of
executive privilege when Nixon tried to use
to protect disclosure of tapes that related to
criminal investigation against him
Policymaking & the Courts
• Judicial Review
• Judicial Activism (liberalism) vs.
• Belief fed judiciary should take an active
role by using its powers to check the
activities of Congress, state legislatures
and admin agencies
• 1950s/60s SC activist and liberal (Justice
Warren)
• Justices are more likely to strike down
laws and policies as unconstitutional
• Justices more likely to be influenced by
future/societal ramifications/needs of the
nation (gay marriage case example)
• Results in creating new precedent (ie
Brown v. BOE)
Policymaking & the Courts
• Judicial Restraint (conservatism)
• Belief courts should defer to
decisions made by legislatures
and executive branches bc elected
by the people, judiciary is not
• Should not thrwart
implementation of laws or regs
unless clearly unconstitutional
• Serve as a watchdog over other
branches of govt. but not more!
Strict vs. Broad Construction
• Strict Construction – follow “letter of
the law” when they attempt to
interpret the Constitution or a
particular statute
• Often associated with Conservative
Views, but depending on issue
Conservatives may support loose
construction
• Loose/Broad Construction – may
interpret laws loosely or broadly, try to
determine the context and purpose of
the law.
• Often linked with liberalism
• Idea of a living constitution
The Rehnquist Court
• Rehnquist – CJ conservative, court
became more conservative
• Scalia & Thomas also conservative
• John Paul Stevens, David Souter,
Ruth Bader Ginsburg & Stephen
Breyer – moderate to liberal views
• Sandra Day O’Connor & Kennedy –
swing votes on controversial cases
• More conservative but decisions not
always predictable
• Civil rights – generally conservative
The Roberts Court
• 2006, Roberts appointed by George
W. Bush
• Tended to side with conservatives –
upheld ban on partial birth abortions
• Held school policies that included race
as determining factor in admission to
certain schools was unconstitutional
on ground violated EP clause
• Upheld Obama care under taxing pwrs
Checks on Courts
• Executive Checks – judicial
implementation – enforcement of
judicial decisions in a way that
decisions are translated into policy. SC
doesn’t have enforcement pwrs
(remember Jackson). Other 2 branches
must cooperate
• Appointment of judges (going to
appoint judges who are aligned with
Pres.’s policies).
• Appointment is best way President has of
affecting direction of decisions by
judiciary
Legislative Checks
• How can Courts’ ruling be overturned?
• Amend the Constitution!!
• What else can Congress do?
• Rewrite laws or enact new ones
• Confirmation of Justices/Judges
• Impeachment of Justices
• Limit funds necessary to carry out
court ruling
• Congress has pwr to
increase/decrease size of Supreme
Court
Public Opinion
• SC insulated fro public opinion yet
rarely deviates too far from it.
• How is the Supreme Court insulated
from public opinion?
• Judges APPOINTED not ELECTED
• Serve for Life
• Court controls which cases it hears, sets
its own agenda or “docket”
• But Public Opinion still serves as a
check and Court can’t deviate too far
from it. Public Opinion plays significant
role in shaping public policy
• Appointment & Confirmation process –
Justices not likely to be nominated or
confirmed by Senate if too far from
public opinion
Public Opinion
• Court has to rely on public officials to
execute decisions
• School Prayer banned in 1962 – South still
has, until someone brings suit, nothing
Courts can do about it
• SC may lose stature if it decides a case in
a way markedly divergent from public
opinion. SC concerned about its
reputation – for individual justices and for
legitimacy as a whole
• Case can be overruled with Constitutional
Amendment
• Public Opinion plays role in decisions
• Example – Court said in opinion about 8th
amendment, what constitutes cruel and
unusual punishment influenced by public
opinion (banning execution of mentally
retarded)
Interest Groups
• Interest groups play role by
• Lobbying Judiciary Committee about
judicial nominee
• Filing amicus curiae briefs
• Having lawyers represent plaintiff (civil
rights case examples)
• Filing class action lawsuits (on behalf of
similarly situated people with same
interests and case)
Effects of checks on Judiciary?
• Usually will exercise restraint, issue
narrow decision confined to facts before
it
• Restraint mandated by judicial doctrines
like stare decisis and following of
precedent
• Rare to overturn precedent
• Hypothetical & Political Questions also
act as restraint bc will decline to hear
cases, or dismiss on standing basis
• Lowers courts can act as check by not
following precedent for case with diff
facts
Baker v. Carr Decision
• Case was justiciable – defined difference
between what was justiciable and what was
political
• Political ??– if raises an issue whose
determination is clearly committed by the
Constitution to another branch of the federal
govt rather than the judiciary. Many issues
concerning impeachment fall into this
category.
• “Political Question” cases – sometimes used
by Court as a means of avoiding making
decision on some cases
Abortion Cases – Roe v. Wade
• Holding (Decision): Women’s
right to privacy is a fundamental
right under the 14th
Amendment. Case invalidated
Texas’ nearly complete ban on
abortions. Pregnancy divided
into 3 trimesters and diff rules
for each. For first trimester,
state could not ban or even
closely regulate abortions.
Decision to have an abortion
was left to pregnant woman and
doctors.
Planned Parenthood of Southeastern PA v.
Casey
• Holding: upheld Roe’s statement
that women’s right to privacy is
fundamental right. Court in
Casey said that states may
restrict abortion so long as they
do not place undue burdens on
woman’s right to choose.
• Majority: O’Connor, Kennedy,
Souter
• Concurring in Part: Rehnquist,
White, Scalia, Thomas
• Dissent: Scalia, White, Thomas
Stenberg v. Carhart 2000
• Law banning partial birth
abortions was unconstitutional
• Majority: O’Connor, Ginsberg,
Stevens, Souter, Breyer
• Dissent: Thomas, Rehnquist,
Scalia, Kennedy
Gonzales v. Carhart 2007
• SC upheld a complete ban on
partial birth abortions
• Roberts replaces Rehnquist,
Alito replaces O’Connor
• Majority: Kennedy, Roberts,
Scalia, Thomas, Alito
• Dissent: Ginsberg, Stevens,
Souter, Breyer
Supreme Court