Name ______________________________ A.P. Government & Politics Lecture Notes

Chapter 16 Judicial Branch

Pump Primer:• List at least four current Supreme Court Justices.• List the name of the present court.

Learning Objectives:16.1 Identify the basic elements of the American judicial system and the major

participants in it 16.2 Outline the structure of the federal court system and the major

responsibilities of each component 16.3 Explain the process by which judges and justices are nominated and

confirmed. 16.4 Describe the backgrounds of judges and justices and assess the impact of

background on their decisions 16.5 Outline the judicial process at the Supreme Court level and assess the

major factors influencing 16.6 Trace the Supreme Court’s use of judicial review in major policy battles

in various eras of American history 16.7 Assess the role of unelected courts and the scope of judicial power in

American democracy

Biblical IntegrationThe law provides a standard for living that are the duty and delight of a Christian; a foundation for the legal system of any nation that desires justice. (Matt. 22:37-40; John 1:17)

Introduction:Although the scope of the Supreme Court’s decisions is broad, the actual number of cases tried in our legal system is tiny, compared to lower federal courts and state and local courts. This means that a great deal of judicial policymaking occurs in courts other than the Supreme Court. This chapter describes how the court systems are structured, how judges are selected, and the influence of the courts on the policy agenda in the United States.

Video: The Big PictureWhy do the unelected judges in the Supreme Court have so much power in a democratic system?

Author George C. Edwards III asks this fundamental question and delves into why decision-making at the Supreme Court level is often based on the personal ideologies of the judges.

Video: The BasicsDo you have confidence in the U.S. court system?

Watch this video to discover what the Founders did to make sure the federal judiciary would be independent of political influence. You’ll also learn about an important check the Supreme Court has on the other two branches of U.S. government.

Nature of the Judicial System (LO 16.1)

In principle, the judicial system provides an arena for two parties to bring their conflict before an impartial arbiter. In theory, justice will emerge when the judge applies the law to the case and determines which party is legally correct. Most cases in our justice system never go to trial because the parties reach a settlement out of court.

There are two basic types of cases: criminal and civil. In a criminal case, the government is the instigating party, charging the defendant with violating specific laws. His offense may harm an individual or society as a whole, and his punishment may be imprisonment, a fine, or some form of community service. A civil case pertains to statutes or common law, and involves a dispute between two private parties, although the government can be a party to a civil suit. Civil cases cover such matters as contracts, property, divorce, child custody, and damages. Money is usually the objective in civil disputes, and imprisonment isn’t an option because a private party, not the government, is filing suit—although a person can face both criminal and civil suits for the same crime.

It’s important not to confuse criminal and civil cases. And, it’s also important not to confuse state and federal courts. The vast majority of all criminal and civil cases are tried in state courts.

_______________ Law The government charges an individual with violating specific laws. ___________________________ for crimes against society (or public

order)

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Tort (_________) Law

Involves a _______________ between two parties (one of whom may be the government itself) over a wide range of matters

Participants in the Judicial System

_____________________

______________________________ - bring charges

______________________________ - one being charged

Actual _______________, not hypothetical cases

___________________________ to sue - must be an injured party

____________ _______________suits - a small group to sue on

behalf of a larger group

__________________________ disputes – must be solvable by legal

methods

______________________ Large profession; 1 million attorneys Not only for the rich anymore

Groups Sometimes choose to represent a plaintiff to test the ______________

of a law

____________ ____________ briefs or “friend of the court” • An attempt to get their point of view across

Linda Brown Linda Brown was handpicked to be the plaintiff in the famous Brown v. Board of Education case that successfully challenged the constitutionality of school segregation.

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Review QuestionsIn which type of case can the defendant receive imprisonment as a punishment?

a. Criminalb. Civilc. Class actiond. All of the above

Structure of the Federal Judicial System (LO 16.2) The Constitution specifies only the Supreme Court, leaving it to Congress to

establish other federal courts as needed. There are both constitutional and legislative courts established by Congress.

Legislative courts are highly specialized and function differently from constitutional courts of general jurisdiction, so this chapter will focus mainly on constitutional courts.

It’s important to understand the difference between courts with original jurisdiction, which hear cases first and determine the facts, and courts with appellate jurisdiction, which hear cases on appeal from a lower court. Appellate courts review only the legal issues, not the facts of the case.

________________________ Courts Article III courts created by _________________________________

_____________________ Courts

_________________courts created by Congress for special purposes. Judges have fixed terms and lack protections against removal or salary

reductions.

Slide 20: FIGURE 16.1: Organization of the federal court system

The federal court system is hierarchical and composed of both constitutional and legislative courts.

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District Courts Organization and jurisdiction

____ courts - at least one in each state• Judges per court 2-28• Total 675

___________________ jurisdiction only

Hold ____________ and impanel juries

________ judge, occasionally require panel of ___• Rely on federal magistrates to help them handle their

workloads. 2% of criminal cases; 1% of civil cases

• 309,000 cases in 2010• Majority of cases involve state law and are tried in __________

courts

Courts of Appeals Review district court decisions

Errors of ______________________ and law

Don’t hear ______________________ or retry cases

75% of 55,000 cases come from ___________________ courts

Review and enforce Independent Regulatory Commissions orders

_____ circuits, serving at least 2 states

6-28 judges per circuit; 179 total

___ judges per case; ____ ___________ (by all the judges of that court) occasionally

Set precedent

FIGURE 16.2: The federal judicial circuits

The 12 circuits vary in geographic size because they’re

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designed to serve a relatively equal population. Population shifts have made district populations uneven, and some have called for dividing the 9th circuit.

Supreme Court Unique responsibilities

Resolving conflicts among ____________

Maintaining national ______________________ in law over state law

Ensuring _____________________ in interpretation of federal laws

Composition

_____ Justices

• _____ associate justices; ____ chief justice• Constitutionally Congress can change the number

Controls its ____________

Picks and chooses what cases it will hear

Receives ____________appeals/year• Most cases are appeals from lower federal courts, some losers in

state courts Only hears about ______ cases/year

Appeals must involve a substantial federal question

Slide 26: FIGURE 16.3: How cases reach the Supreme Court

There are three routes to the U.S. Supreme Court. The first is through its original jurisdiction, but this happens rarely as the Supreme Court’s original jurisdiction is limited to a few specialized types of cases that don’t arise often.

Most cases reach the Court through appeals from decisions in lower federal courts. Some cases also reach the Court as appeals from the highest state court.

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TABLE 16.1: Sources of full opinions in the Supreme Court, 2010-2011

Review QuestionsHow many cases does the Supreme Court hear per year?

a. 100b. 50c. 80d. 10,000

Politics of Judicial Selection (LO 16.2)

Since lower federal court judges and Supreme Court justices serve for life, judicial appointments are a way for a president to leave an enduring legacy. Judges can be impeached, but this has happened only 7 times in more than 200 years. Congress is also forbidden from reducing the justices’ salaries, which further insulates them from political pressure.

But, the president’s judicial nominations must be confirmed by the Senate, which can be a contentious process in situations of divided government.

Lower Courts ____________________ _____________________

Unwritten ____________________ for district court judgeships Senate does not confirm nominees opposed by the senator of

the president’s party from the state in which the district court is located

_________ and ____________ background checks President chooses from survivors of check Nominee suggested by a senator is on the list, the president

must choose this person

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In effect makes the Senate both the nominating and approving body

Politics of judicial selection

______________________ divide Process lengthy and contentiously growing

______________________ groups increasingly active

______________________ against candidates who don’t share their ideology

Supreme Court Vacancies infrequent

• Some presidents never get to fill a position

• ______________________nominates & ____________ confirms

____________ justice vacancy unique• Elevate an associate justice or nominate someone from outside

the Court

______________________ courtesy not relevant• Court justices do not serve in districts or circuits

Chief Justice William RehnquistJustice Rehnquist served on the Court from 1972 until his death in 2005. Elevated to Chief Justice in 1986 by President Reagan. President G.W. Bush went outside the Court after Rehnquist’s death and nominated John Roberts, Jr. to fill the chief justice vacancy

Partisan balance in Senate key

Senate ____________________ Committee• Confirmation process, • Holding hearings - grills candidates on their judicial philosophy

and dissects their past• Highly political

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• ________________________ • To prevent confirmation• Key to confirmation – president’s party holding 60 seats

= _______________

TABLE 16.2: Unsuccessful Supreme Court nominees since 1900 Since 1900, there have been 8 Supreme Court nominees who didn’t get Senate confirmation. Abe Fortas was an associate justice who was unsuccessfully nominated for chief justice.

The Senate never took any action on Homer Thornberry’s nomination, and Douglas Ginsburg’s nomination was withdrawn. Robert Bork was rejected for being too conservative, and Harriet Miers for not being conservative enough.

Image: Elena Kagan Elena Kagan is the junior justice on the Court, having been nominated by President Obama in 2010. As is typical in modern times, she was confirmed by a vote along party lines

Review QuestionHow is the chief justice chosen?

a. Voted on by the other 8 justicesb. The most senior justice gets the positionc. Nominated by president, confirmed by Senate d. Picked by the Senate Judiciary Committee

Backgrounds of Judges and Justices (LO 16.3) Criteria for Selection

________________________ Ethics Diversity

________________________ – most important

Not a legal requirement to be a ____________ Non-lawyer may not make it through confirmation

____________________ background White, male, lawyer

_________ African Americans

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_________ women

_________ Hispanic American

Diversity v. ideology

Older, ____________

Mostly ________________________

____ Catholics – current court 6 Catholics

____________-_______________ class backgrounds Prominent lawyer or judge

Image: Swearing in of Sonia Sotomayor Sonia Sotomayor is the first Hispanic American to serve on the Court. As we can see, the backgrounds of federal judges are not representative of Americans.

TABLE 16.3: Supreme Court justices, 2013

This table shows the 9 Supreme Court justices that comprise the current Court.

Who’s most likely to retire before President Obama’s second term expires?

Criteria for Selection Geography

Different regions of the country Not as important, other considerations are more prominent today

________________________ Diversity (20th Century) Effort to have Jewish or Catholic Justice

____________________/________________________ Main criterion in use today

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Background Characteristics and Policymaking What presidents expect v. what they get

Democratic expect nominees to turn the Court in a _______________ direction

Republican expect nominees to move the Court in a ______________ direction

Disappointed ____ of the time

Diversity: More than a symbolic difference?

____________ judges are slightly more sympathetic to charges of sexual discrimination

__________________ American judges are more sympathetic to claims of racial discrimination

Differences in judicial decision making can not be attributed to any one characteristic, such as sex, race, religion, or background

Image: U.S. Supreme Court, 2013 Can you name each justice in this official photograph?

Review QuestionWhat is the main criterion presidents use to select judicial nominees?

a. State where they are fromb. Religionc. Raced. Ideology

Courts as Policymakers

The Supreme Court isn’t the only court that makes policy. All appellate courts make policy when they set precedents for how to interpret laws. But as the highest court in the land, the Supreme Court is the final arbiter of what a law means. So how does the Court make decisions? Let’s explore that topic.

Accepting CasesFirst step in process

Justices meet in conference _________ a week• Rely on law clerks to pass along the most interesting cases

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____________ ______ ____________• Four justices must vote in favor for a case to be heard

Writ of ________________________ • Formal document that orders the lower court to send up a

record of the case for review

Accepting Cases Type of cases selected

Civil ________________________

Discrepancies in ________________________ of a law

Requests by ________________________ General• Third ranking official in the DOJ• In charge of the court appeals made by the federal government.

• Decides what cases to ____________

• Review and modifies the ____________

• Represents the federal government before the Supreme Court

• Submits ____________ ____________ briefs

FIGURE 16.4: Obtaining space on the Supreme Court’s docket This figure shows the process of appealing a case to the Supreme Court. Most cases are turned down.

Process of Decision Making

____________ Attorneys Amicus curiae briefs (interest groups) Solicitor general

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Oral arguments

_________________ thru ____________________; _______ weeks

on, two weeks off; starting first week in ________. Thru June

10am until noon; ____ minutes for each side

___________________—with all the justices present Justices interrupt with questions Nerve-wracking experience for a lawyer

Conference Meet once to twice/week to discuss case, vote, and assign opinion

writing (mostly Thursday and Fridays)

Opinion writing Majority opinion explains the legal reasoning of the decision

• ____________ ________________assigns opinion, if in majority; if not, the senior associate justice on the winning side assigns the writing

________________________ opinion• Support a majority decision but stress a different constitutional

or legal basis for the judgment

________________________ opinion• Explaining why they disagree with the majority.

FIGURE 16.5: Supreme Court’s decision-making process

The process outlined here can take more than a year from petition to announcement of decision.

Basis of Decisions Principle of __________ _____________(stair-ee di-sahy-sis)

“let the decision stand.” Lower court respect precedent of the Court Free to overturn its own precedent

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• Brown v. Board of Education (1954) overruled ____________ ____________ ________(1896) – “separate but equal”

Why do justices disagree? Uncertainty and ________________________

• “Equal protection,” “due process of law,” “unreasonable search and seizure,” “necessary and proper,” etc.

• Everyone has an opinion on what they perceive each legal ruling to mean constitutionally.

Judicial philosophy

________________________ (original intent or Strict Constructionist) • Interpreted according to what the Framers intended

• ________________________ Justices

• ________________ Constructionist• Interpreted according to the times, the Constitution was

meant to be flexible• _________________ Justices

• ________________________ Construction – Courts interpret the act of Congress.

Video: Thinking Like a Political ScientistWhy do legal scholars and political scientists disagree over how judges make decisions?

In this video, East Central University political scientist Christine Pappas analyzes this and other questions scholars study. She explains how the other branches of government limit the role of the judiciary in public policy-making, and discusses research on how public opinion influences the courts.

Implementing Court Decisions Judicial implementation

________________________ population• Relies heavily on lawyers and judges to understand and reflect

the intent of their decision in subsequent actions

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________________________ population• Rely on other branches of government to implement• Controversial policy area far out of step with public opinion

would cause problems of enforcement by other branches

• ________________________ population Those affected by the decision, who must be aware of

and demand implementation and enforcement of a decision that benefits them in some way

Image: Virgil HawkinsThe Court ordered the all-white University of Florida Law School to admit Virgil Hawkins, but it never did so.

Review QuestionWhat principle governs judicial decision making?

a. Stare decisis b. Ex post factoc. Amicus curiaed. Quid pro quo

Explore the Simulation: You Are a Supreme Court ClerkThrough the power of judicial review, the Supreme Court has the last word on issues of constitutional interpretation. Supreme Court justices can strike down federal legislation. In this simulation, you’ll explore this process as you serve as a Supreme Court clerk.

Courts and Public Policy: A Historical Review (LO 16.4)

Throughout American history, the Supreme Court has made controversial decisions with major public policy implications.

The types of questions before the Court have changed over time. The founding era was dominated by questions of federal supremacy, and federalism issues continued to be raised throughout the nineteenth century.

Government’s regulation of the economy became a prominent issue in the early twentieth century.

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Since the Second World War, questions of personal liberty and social and political equality have predominated.

John Marshall and the Growth of Judicial Review

____________ ____________ ____________ (1803)• Jefferson defeated John Adams 1800 Election• In the ninth hour, Adams appointed as many Federalists to the

judiciary as possible• New Secretary of State – Madison refused to deliver the

outstanding commissions, William Marbury sued

____________________ ____________• Court has power to interpret Constitution

Video: In ContextThe Marbury v. Madison decision had a huge effect on the way the United States is governed.

In this video, East Central University political scientist Christine Pappas discusses Marbury v. Madison and analyzes how the power of judicial review has impacted campaign finance law.

The “____________________________________”Controversy over New Deal legislation

________________________ on Court did not want federal intervention in economy

Struck down FDR’s legislation one by one

FDR’s court-packing plan Asked Congress to expand Court Congress _______________ Court began to vote in favor of New Deal legislation = “___________

____________________________________”

The ___________________ Court (1853 to 1969)

Most ______________ Court in shaping public policy

Chief Justice Earl Warren (1953-1969)

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____________ was one of his first cases - Desegregated schools

Expanded the _______________________________ of the Constitution • Rights of defendants• Prohibited school prayer• Civil Rights

The ____________ Court (1969-1986)

More ________________________ Court

Chief Justice Warren Burger

____________ ____________ (1973) was one of its major decisions

• Established a constitutional right to abortion

Upheld ________________________ action

____________________________________ (1974) - made Nixon turn over Watergate tapes

The ________________________ (1986-2005)

Even ____________ conservative Courts

Chief Justice William Rehnquist

Conservative appointees ________________________• Attempted to roll back some earlier precedents• Judicial activism

________________________ (2000) - decided the 2000 presidential election.

____________________________________ (2010) – extended 2nd Amendment’s limits on restricting right to bear arms to state and local gun control laws

The __________________ Courts (2005-present) Somewhat conservative

Chief Justice John Roberts (2005)

Court has been more ________________________

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____________ rather than reverses previous rulings• Health care• Voting Rights Act• Defense of Marriage Act (DOMA)

Review QuestionWhat power of the Court was established in Marbury v. Madison

a. Control of its docketb. Original jurisdictionc. Judicial reviewd. Affirmative action

Understanding the Courts (LO 16.7)

Our nation’s courts are more powerful than those in most other countries. The power that unelected judges wield raises questions about democratic government in the United States.

Courts and Democracy Where do courts fit in a democracy?

Democracy’s based on accountability to citizens, and judges seem to be unaccountable • Federal judges not ________________

• Federal judges hard to ____________

• Most federal judges are from ____________ backgrounds

Image: “Silent majority” Critics claim that the Court is making controversial policy decisions best left to elected officials. These demonstrators are expressing their opinion on health care reform.

Courts and Democracy Not as insulated as it seems

Framers relied on insulation from the whims of __________________ opinion

The majority of the Court’s decisions don’t tend to be far out of step

with ____________ opinion.

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Image: Bilingual education Interest groups use the judicial system to pursue their policy goals, which compels the courts to rule on important social issues. Some Hispanic parents have sued school districts to make them offer bilingual education.

Scope of Judicial Power Courts try to avoid political questions Are the courts too powerful?

Judicial _________________ Defer to legislatures Adhering to precedent Avoid precedent-setting opinions on major social issues Judicial ________________________ Protect minorities

TABLE 16.4: Supreme Court rulings in which federal statutes have been found unconstitutional It looks like the Court’s become more inclined to overturn federal statutes, which may be true. But, it’s also true that Congress passes many more laws than it used to, so there are more laws to consider.

Video: In the Real WorldShould the Supreme Court have the power to knock down popular laws?

This segment uses the Supreme Court’s 2012 decision in U.S. v. Arizona to illustrate the tension between protecting the law and having a government that's run by the people.

Review QuestionWhy could a powerful federal judiciary be a problem in a democracy?

a. Judges are unelectedb. Judges are appointed for lifec. Judges are usually from elite backgroundsd. All of the above

Discussion QuestionsWhy do we say that judges make policy? How does the Supreme Court make policy? Is the Court’s policymaking role a problem in a democracy? Why or why not?

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Video: So What?What’s the difference between decisions made by a local judge and those made by a Supreme Court judge?

Find out how the vagueness of the Constitution leaves quite a bit of room for interpretation by Supreme Court justices—and why that often leads to the judge’s personal opinions influencing his or her decisions.

SummaryLO 16.1 Nature of the Judicial System

• The vast majority of cases are tried in state, not federal, courts.• Courts can only hear “cases” or “controversies” between plaintiffs and

defendants.• Plaintiffs must have standing to sue, and judges can only decide

justiciable disputes.• Attorneys also play a central role in the judicial system.• Interest groups sometimes promote litigation and often file amicus

curiae briefs in cases brought by others.

LO 16.2 The Structure of the Federal Judicial System

• District courts have original jurisdiction and hear federal criminal, civil, diversity of citizenship, and bankruptcy cases, and handle admiralty and maritime, naturalization, and review the actions of some federal administrative agencies.

• Circuit courts hear appeals from the district courts and from many regulatory agencies.

• They focus on correcting errors of procedure and law that occurred in the original proceedings of legal cases.

• The Supreme Court sits at the pinnacle of the system, deciding individual cases, resolving conflicts among the states, maintaining national supremacy in the law, and ensuring uniformity in the interpretation of national laws.

• Most Supreme Court cases come from the lower federal courts, but some are appeals from state courts and a very few are cases for which the Court has original jurisdiction

LO 16.3 The Politics of Judicial Selection

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• President nominates and Senate confirms judges and justices.• Senators play an important role in the selection of lower court judges,

as a result of senatorial courtesy, while the White House has more discretion with the Supreme Court justices.

• Although the Senate confirms most judicial nominations, it has rejected or refused to act on many in recent years, especially for positions in the higher courts.

LO 16.4 The Backgrounds of Judges and Justices

• Judges and justices are not a representative sample of the American people.

• They are all lawyers and are disproportionately white males.• They usually share the partisan and ideological views of the president

who nominated them, and these views are often reflected in their decisions.

• Other characteristics such as race and gender are also seen to influence decisions.

LO 16.5 The Courts as Policymakers

• Accepting cases is a crucial stage in Supreme Court decision making, and the Court is most likely to hear cases on major issues, when it disagrees with lower court decisions, and when the federal government, as represented by the solicitor general, asks for a decision.

• Decisions are announced once justices have written opinions.• Judicial implementation depends on the interpreting (judges and

lawyers), implementing (the other units of government), and consumer (citizens affected by decision) populations.

LO 16.6 The Courts and Public Policy: An Historical Review

• Until the Civil War, the dominant questions before the Court concerned slavery and the strength and legitimacy of the federal government, with the latter questions resolved in favor of the supremacy of the federal government.

• From the Civil War until 1937, questions of the relationship between the federal government and the economy predominated, with the Court restricting the government’s power to regulate the economy.

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• From 1938 until the present, the key issues before the Court have concerned personal liberty and social and political equality.

• The Court has enlarged the scope of personal freedom and civil rights and has removed many of the constitutional restraints on the regulation of the economy.

LO 16.7 Understanding the Courts

• Judges and justices are not elected, are hard to remove, are not totally insulated from politics, and have promoted openness in political system.

• They have a number of tools for avoiding making controversial decisions, and the president and Congress have means they can use to overturn Court decisions.

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