unit 11 the judiciary “the least dangerous branch…”

Unit 11

THE JUDICIARY“The least dangerous branch…”

I. Original Intent of Framers

A. Federalist Paper #78 examined the need for ________ judiciary. 1. How would members of the judiciary get their jobs? 2. What would be the term of their office? 3. Why was it decided to be this way? - Preserve judicial neutrality - Allow justices the capability to use and make precedent over time.

Original Intent:

B. The Judiciary’s power would be limited to cases involving:

- the interests of the nation;

- the interests of the states when in conflict with each other;

- state conflict with the national gov’t.

Original Intent:C. Interpretation of the laws

(judicial review) has been the judiciary’s main function since 1803 (Marbury v. Madison).

- Legislative acts are void if contrary to the Constitution and once a law is voided.

- The only recourse is a constitutional amendment.

Original Intent:D. The Supreme Court was to be the voice of the

people and supreme over all state courts and state laws (when in conflict). Nullification not specified under the U.S.C.

II. II. Politics of the JudiciaryPolitics of the JudiciaryA. Judicial appointments

by the President reflect his desire to shape an ideological agenda.

B. Over 90% of judicial appointees have been of the same party as the President..

Clarence Thomas

Robert Bork

Sonya Sotomayor

Politics of the Judiciary (cont’d)

C. Judicial appointments are influenced by:

- American Bar Assoc’n

- Interest groups (e.g. NRA, NAACP, NOW)

- Attorney General

- Senate Judiciary Committee members

Senate Confirmation Politics Advice & Consent role:• Senate Judiciary Committee holds hearings where

appointees are questioned. Questioning is very partisan and ideological.

• Committee makes confirmation recommendation to full Senate.

• 2/3 of Senate confirm the nomination.

LITMUS TEST

• A test of a judicial nominee’s ideological purity by the Senate on matters of key social policies.

• Hard to obtain a perfectly “neutral” candidate acceptable to both parties.

JUDICIAL APPOINTMENTS(Through 2009)

PRESIDENT WOMEN AFRICAN AMERICAN

HISPANIC ALL

JUDGES

CARTER 40 37 16 258

REAGAN 28 7 15 384

BUSH SR. 36 12 8 185

CLINTON 77 51

18 378

BUSH JR. 73 26 17 324

OBAMA

10 2 1 21

SENATORIAL COURTESY

• The president allows the senior senator of the president’s party from the nominee’s state to concur or reject a judicial nomination in advance (called a “blue slip”).

• Senatorial courtesy applies to federal district court nominations only!

D. Judicial Philosophy

1. Judicial Activism

Judges overturn a law or an executive action due to personal ideology. Often called “legislating from the bench.”

2. Judicial Restraint

Judges are reluctant to overturn laws or executive actions by strictly interpreting the Constitution and using precedent.

III. Precedent and Justiciability

A. Supreme Court uses precedent (stare decisis), but is not bound by it since it sees itself as the ultimate interpreter of the law.

B. Justiciability: Whether a case has any merit to be heard.

1. Courts hear only 1. Courts hear only justiciablejusticiable cases cases that involve actual that involve actual legal disputes that legal disputes that are real and adverse, are real and adverse, not hypothetical not hypothetical ones.ones.

2. If a plaintiff wants 2. If a plaintiff wants to have his case to have his case heard he must have heard he must have ““standing”standing” (show (show that some that some harmharm was was done to them). done to them).

3. 3. PoliticalPolitical or or religious belief religious belief issues are not justiciable!issues are not justiciable!

- A person cannot sue - A person cannot sue Congress just because he Congress just because he doesn’t like a law.doesn’t like a law.

(e.g. his taxes are too high)(e.g. his taxes are too high) -- The Court will not decide The Court will not decide

which religion is correct in which religion is correct in interpretation of religious interpretation of religious beliefs.beliefs.

4. For the gov’t to be sued it 4. For the gov’t to be sued it must have violated the must have violated the Constitution somehow. Constitution somehow. (Ex: (Ex: violated a person’s rights; violated a person’s rights; favored one race over favored one race over another; exceeded its another; exceeded its powers)powers)

5. Class action suits-

Justiciable because many people may have suffered harm from the results of the same action. (e.g. segregating schools; making a bad drug)

6. Amicus curiae briefs- (“Friend of Court” briefs) are written legal arguments made by any interested party designed to try and sway a court’s decision or add to a case’s justiciability.

IV. Types of Federal Courts

A. Supreme Court is the highest court in the land, is the only court specified in the Constitution, and is the court of LAST RESORT. It’s decisions are final and not subject to appeal.

Federal Courts (cont’d)

B. All other federal courts were created by Congress (through their expressed powers) as “lesser courts” to the Supreme Court, such as…

Federal Courts (cont’d)

Constitutional Courts Designed to enforce specific judicial powers under Article III of the Constitution. Their judges are appointed for life. (e.g. District Courts, Circuit Courts of Appeal)

Federal Courts (cont’d)

Legislative courts

- Special courts created by Congress to enforce laws created under its Article I powers. Its judges have term limits.

(e.g. Tax Court, Territorial Courts, Bankruptcy Court, Maritime Courts)

- Military law is written by Congress so military courts are also Article I courts.

C. Federal District Courts

1. 94 district courts that are spread among all the states and serve a small regional area.

2. Hear criminal and civil trials involving federal law; decide guilt or innocence based on facts; issue verdicts and sentences.

3. Exclusive jurisdiction ONLY!

D. Federal Circuit Courts of Appeals

1. 12 larger regional-based courts that have only appellate jursidiction.

2. Decide issues of law, no trials held. 3. Decisions made by a panel of 3 judges; a majority

vote decides the appeal. 4. Their decisions may be further appealed to the

Supreme Court which has the option to hear or deny the appeal.

V. TWO JUDICIAL SYSTEMS

A. The United States has two levels of courts, state & federal, This is called the dual court system.

- Each level operates independently from the other having jurisdiction over its own laws.

State courts: • State judicial powers

are protected by the 10th Amendment, but is subject to federal supremacy which can override state laws or court decisions when in conflict with the U.S. Constitution.

B. Jurisdiction

Definition:

The authority of a court to interpret and apply the law by hearing and ruling on cases.

Four Jurisdiction Types

1. Original: Courts hear cases for the first time and render a verdict (criminal trial) or a decision (lawsuit).

2. Appellate: Courts hear only appeals brought by people/orgs because previous lower court decisions were unfavorable to them.

Jurisdiction Types (cont’d)

3. Concurrent: Federal gov’t and states have simultaneous jurisdiction in a case. This is called dual sovereignty. Federal supremacy can be applied to claim jurisdiction, but can be deferred to the states. (e.g. bank robbery; 2003 sniper case)

Jurisdiction Types (cont’d)

4. Exclusive: Federal gov’t can prosecute cases that it alone has power over.

(e.g. terrorism; stock market fraud; mail theft)

C. Federal Jury SystemTwo types of juries:

1. Grand juries - Investigative bodies of 16-23 people who decide whether there is enough evidence to conduct a trial.

- Closed to the public. - Neither the suspect nor a judge is present. - Issue indictments (formal charges of a crime)

Federal Jury System (cont’d)

2. Petit juries- Juries of 6-12 selected citizens.

- Decide criminal and civil cases.

- Mostly open to the public

- Secret verdict deliberation

VI. Parties To Lawsuits

A. All parties involved in a lawsuit are referred to as litigants.

1. The party that brings the complaint is called the plaintiff.

2. The party who must answer to the complaint is the defendant.

B. Parties to Appeals

Appellant: The party (1st name on the case) that appeals its loss from a lower court’s original decision.

Appellee: The party (2nd name on the case) that defends against the appellant’s position.

EXAMPLES: Marbury v. Madison

Johnson v. U.S. Steel Corp.

Clinton v. City of New York

United States v. Virginia

VII. Supreme Court Appeals A. All lower court appeals must first be

exhausted. B. The appellant must apply to the Court

for a writ of certiorari (aka: granting “cert”).

- This is a demand for the last appeals court to send up the records of the case in question for review by the Supremes.

Rule of Four

- At least four justices must agree to grant “cert” to a case in order for it to be heard. This is called the Rule of Four.

- If “cert” is not granted then the decision of the last court stands.

OK, who wants to grant cert with me?

Me too!

Me!Hell, no!

Pass!Where am I?

C. The Written Brief

Parties to the case are notified and must file separate written briefs that state the constitutional basis of their argument. If the federal government is a party then it is the Solicitor General who represents it.

- The justices read these briefs prior to hearing the case in the court.

- “Amicus curiae” briefs are also sent.

D. The Oral Argument

On the court date, attorneys for each side state their case in an oral argument before the Court. Each is limited to 30 minutes.

E. The Case Conference

1.The justices will meet in private days later to discuss the merits of the case and vote on a decision. Each justice has one vote.

2.If a tie vote occurs then the decision of the last court stands.

F. The Opinions One justice will be assigned to write the Court’s decision called an opinion.

1. Majority opinion: The winning side of the argument expresses the reasons for its ruling (also called the “opinion of the Court”).

- Split decision: A vote that is 5-4

- Unanimous decision: A vote that is 9-0

Opinions (cont’d)

2. Dissenting opinion: The losing side’s reasons for disagreeing with the majority ruling.

3. Concurring opinion: An opinion agreeing with the majority, but for different reasons than what is written in the majority opinion.

G. Judicial Implementation• Court decisions have legal authority, but courts

have no means to enforce them and must rely on the other two branches to do so.

• Implementation can be difficult if a decision requires the cooperation of numerous bureaucracies or depends upon states to lead.

Example: Brown v. Board of Education• The Court can order its own “remedy” to effect

implementation (judicial activism).

END OF UNIT 11 – JUDICIARY BRANCH

“We are under a Constitution, but the Constitution is what the judges say it is. - Charles Evans Hughes

Former Chief Justice, U.S. Supreme Court