Judicial Branch
Chapter 14
Judiciary Overview
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U.S. Judiciary = most powerful judicial branch; has become a
“coequal” policymaking body; not original intentions to be a
policymaking body
Judges make wise, impartial (unbiased) decisions bc not elected;
“watchdog” of other branches
Common Law Traditions - judge-made laws collected over
time; decisions based on previous judges
- new cases reference old decisions = precedence
- stare decisis- “let the decision stand”
- overturning past decisions is a big deal…breaks tradition
Judges hear disputes and choose who is right & wrong
Judges’ job is to find and apply existing law
This interpretation implies limited role in “checks and balances”
Judiciary in the Constitution
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Article III roughly defines Judiciary (afterthought?)
Section 1- creates Supreme Court; Congress creates federal courts
- serve “during good behavior” (no terms of office)
- $ can’t decrease in office
Section 2 - original jurisdiction - all cases w/ ambassadors, ministers,
consuls, & states go directly to Supreme Court
- S.C. has appellate jurisdiction for federal decisions.
- trial by jury for all criminal (not civil) cases
Section 3 - defines treason: “adhering to their enemies” & “giving them
aid and comfort”
- must confess in court or testimony of 2 witnesses
- punishment decided by Congress
Judicial Review
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4th Chief Justice John Marshall est. judicial review in Marbury v. Madison
(1803)
Definition: The power of the courts to declare and action of the other branches
of government and of the states to be unconstitutional and to declare it null
and void.
Gives Supreme Court ability to strike down or reinforce policy (can find laws
unconstitutional)…
not just applying and interpreting it
Judicial Review is key concept of S.C. power
Not mentioned in the constitution; asserted by the Supreme Court.
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Marbury v. Madison
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Adams tried to “pack courts” with judges (Marbury), but new Secretary of
state James Madison refused to send out letter
Marbury wanted Supreme Court Justice Marshall to submit a writ of
mandamus (an enforcable order from superior court to public officials)
under the Judiciary Act of 1789
JA of 1789 gave S.C. more original jurisdiction not stated in Constitution
Marshall declares JA of 1789 unconstitutional, avoids showdown
Established court’s right to declare laws unconstitutional
Dual Court System
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Federal court system, which has a more narrow jurisdiction
(Constitution, U.S. laws, treaties – federal question cases) and cases
involving citizens of different states (diversity cases)
State court system, which focuses on state constitution and laws.
 Each state has a State Supreme Court that decides on state law
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Dual sovereignty - state & federal govt can try same person for
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Sup.Ct. can hear state cases involving Constitutional questions
(if a state law is against the constitution)
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same crime under different law
U.S. is adversarial system of courts…passive
- case comes to court, not vice versa
Jurisdiction
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Jurisdiction: the right, power, or authority to administer justice by hearing
and determining controversies
Courts of original jurisdiction have the authority to hear a case for the
first time.
Courts of appellate jurisdiction hear cases on appeal from the lower
courts and determine whether the law and legal procedures have been
appropriately applied. They have the authority to overturn decisions of
lower courts.
Jurisdiction of federal courts:
 All cases affecting ambassadors, other public ministers and consuls
 All cases of admiralty and maritime jurisdiction
 Controversies to which the U.S. is a party
 Controversies between 2 or more states
 Between a state and citizens of another state
 Between citizens of different states
 Between citizens of the same state claiming lands under grants of
different states
 Between a state or a citizens and foreign countries or citizens
Supreme Court’s Original Jurisdiction
 In all cases affecting ambassadors, other public officials, and those in
which a state shall be party; all else is appellate jurisdiction (cases
appealed from lower courts)
The Judiciary Act of 1789 and the Creation of the Federal
Judicial System; Structure of Court System
Congress created 2 types of Federal Courts
 Established the basic three-tiered structure of the federal court system
1. Constitutional Courts
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-Those established in the constitution or authorized by the constitution.
Exercise Art. III powers, lifetime terms
- 94 district courts (1 in each state, D.C. & Puerto Rico)
- 13 courts of appeal - 1 in each of 12 circuits (region)
- U.S. Court of Appeals in Fed. Circuit hears cases on patents,
copyrights, & trademarks, claims against U.S. & intl trade.
2. District courts - trial courts of original jurisdiction (starting point)
- no appeals heard, only fed. Court with juries
-at least one in each state; each has 1 federal judge
- 2 to 27 judges (in each court depending on case load);
-jurisdiction: hear fed. crimes, civil suits on fed. law, civil suits btwn
citizens of different states of $50,000 or more.
3. Courts of appeal (circuit courts) - only appellate jurisdiction
-review decisions of District courts, review/enforce orders of fed.
agencies
- hears cases in panels of 3 judges or more, majority vote wins
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Supreme Court – 9 justices (1869)
Details: Structure of the Court
Federal District Courts:
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94 federal district courts staffed by 646 active judges, assisted by more
than 300 retired judges
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No district courts cross state lines.
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Every state has at least one federal district court.
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The most populous states have four (CA, TX, and NY).
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Have no appellate jurisdiction
Court of Appeals (Circuit Court)
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The losing party in a case heard and decided in a federal district court can
appeal the decision to the appropriate court of appeals.
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11 numbered circuit courts
Twelfth, D.C. Court of Appeals
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Thirteenth, U.S. Court of Appeals for the Federal Circuit
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Handles most appeals involving federal regulatory commissions and agencies
Deals with patents and contract and financial claims against the federal government
Have no original jurisdiction
Try to correct errors of law and procedure that have occurred in the lower
courts or administrative agencies
Hear no new testimony.
Structure Cont’d
Legislative Courts are established by Congress under its
implied powers and serve special purposes (e.g., the
U.S. Court of Veterans Appeals)
 Legislative – “Art. I courts,” carries out Leg. powers of
Congress
- not protected by Article III, judges serve fixed
terms, removal w/o impeaching, salary can be reduced
- Example: Court of International Trade, Tax Court,
Court of Military Appeals
Judicial System Participants
• Participants in the courtroom (judge, litigants, lawyers, sometimes jury,
audience (press, interest groups, general public)
• Litigants - plaintiff & defendant
-plaintiff – person bringing the charges
-defendant – person being charged
• Criminal law - person accused of violating a specific law &
govt prosecutes
-Criminal law regulates individual behavior to protect property and
public safety.
• Civil law - person v. person; for violating indiv. Rights; no charge of
criminality
– Civil law deals with business and contractual relationships between
groups and individuals
• U.S. in 2/3 of all fed. court cases
• Litigants must have “standing to sue” - personal injury/danger
- indiv. must be directly affected by law to have “standing”
- Class action suits have broadened “standing”
- small # of people represent others in similar situations
-Brown v. Board 1954
Judicial System Participants 2
• Lawyers
- in criminal cases = federal lawyers are prosecutors
- attorney general, solicitor general (govt representative in Supreme Ct. cases)
Fed govt provides public defenders (1964 Gideon v. Wainwright)
- given public defender even if you can’t afford it
-Prosecutor and defense lawyer often work out a plea bargain to avoid trial
• Jury - trial by jury (12) is fundamental right…not used much.
- jury trials cost $ and time
- today defendants and lawyers plea bargain or choose judge trial (bench
trial)….easier to deal with 1 familiar judge than 12 strangers
• Audience - Interest groups hire the best lawyers and litigants
to support their cause
-ACLU, NAACP (Brown v. Board)
- media sensationalizes cases, press gets people interested
• Judges - draws upon education, beliefs, background
- in criminal cases…jury decides verdict and judge sentences
Appointment and Terms
of Federal Judges
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No qualification of judges in Constitution (“in good
behavior”); selection process based on tradition
The president nominates all federal judges (with advise
from Congress, FBI, Dept. of Justice, ABA) and the
Senate confirms (“advice and consent”)
Lower Courts - district court appointments use
senatorial courtesy
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The Senate will usually not confirm a judge if the senior
Senator from the state where the court is located objects
District court appointments are usually recommended by Sen.
Approval process for U.S. Appeal and Supreme Court
judges:
- Senate Judiciary Committee interviews the
nominee, reviews their record, and holds hearings
(interest groups testify) and supports/rejects nominee
-Sen. Jud.Com. recommendation holds a lot of weight
Selection Criteria for Justices
President names nominee after consultation and investigation.
Factors considered:
1. Political Ideology - liberal/cons attitude…. “Litmus Test”
(policy preference on abortion, for example); a test of
ideological purity
2. Party/Personal Loyalty - 90% are President party members
3. Senate Acceptability - SJC, Senate must approve of nominee
4. Judicial experience – past judges (courts of appeal), prominent
attorneys, worked for Dept of Justice, elected officials
5. Race/Gender (group representation) - T. Marshall (1967),
Thomas, O’Connor (1981), % is increasing in recent years
Ginsberg
6. Process: lobbying by interest groups, Senate Committee
hearings, vote
How Supreme Court Works?
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8 associate justices, 1 Chief Justice (1870)
Session from October – June
Writ of certiorari - an accepted petition for the Supreme
Court to hear a case; “made more certain”
• S.C. agrees to hear a case and issues a “cert”
Rule of four =if 4 justices agree to hear a case, it is issued a
“cert” and scheduled
Listen to oral arguments for 2 weeks then adjourn for 2 weeks
to consider the cases and write their own opinion
• Justices informally meet on Wed. pm and Friday to discuss
specific cases and give views on case
Justices review a case and lower court decision before a trial;
each side prepares a brief with oral arguments and relevant
precedent
• Each lawyer has 30 minutes to present case
Amicus curiae – “friends of the court” provide
information/testimony in support of one side or other of the
case (eg. NAACP)
S.C. sets its own agenda/docket
Opinions
Opinion a written statement with legal
reasoning to justify the decision
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Instructs judges of state and federal courts on how to
decide similar cases (establishes precedence)
Majority – the official opinion of the court
Dissenting – justices who disagree with the
majority opinion
Concurring – a justice who agrees with the
majority ruling, but has a different
reasoning
- senior judge chooses writer for majority
and dissenting
Approaches to Judicial Decisionmaking
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Judicial implementation - court decisions into active policy
- who enforces? Other branches of government
-Brown v. Board, Engle v. Vitale
Policy Making Power
Judicial restraint (strict constructionist)- judges do
not “legislate from the bench”
-judges not elected, Congress, Pres connected to people
- Rehnquist
-judges should defer to other branches of government and
let their decisions stand
Judicial activism - “correct injustices of other branches”
- minority rights overlooked in majority rule (protection)
-Marshall, Warren
-Judges should use their power broadly to further justice,
especially in areas of equality and personal liberty.
Constraints of the Courts
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Courts are the least democratic branch (judges are
not elected, cannot be removed except by
impeachment)
Courts have the authority to overrule decisions of our
democratically elected representatives.
Though theoretically “above politics,” Supreme Court
cannot ignore public opinion in cases
Unpopular decisions won’t be carried out
Presidential check on judges power:
Appointed/Approved by elected officials = political
loyalty
Congressional check on judges power:
Potential for impeachment
Congress may be able to overturn a Supreme Court
decision by legislation or by constitutional
amendment.
Congress can affect the make up of the court
Important Chief Justices
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John Marshall (1801-1835) – expanded power of the
Supreme Court; established Marbury v. Madison
Earl Warren (1953-1969) – very liberal, activist judge,
Brown v. Board of Ed
Warren Burger (1969-1986) – conservative justice,
advocate of strict constructivist arguments…. but his
court was mixed eg. Roe v. Wade, reinstatement of
death penalty
William Rehnquist (1986-2005) – conservative judge,
restraint…made it more difficult for employees to sue
for discrimination, gave school administrators
censorship rights over school papers and plays
John Roberts (2005-present) – conservative,
restraint