Chapter 10

The Judiciary

Pearson Education, Inc. © 2008

American Government: Continuity and Change9th Editionto accompany Comprehensive, Alternate, Texas, and Essentials Editions

O’Connor and Sabato

Articulate the principle of judicial review.

The Constitution and the Creation of the Federal Judiciary

Framers devoted little time to the creation of the judiciary. Believed it posed little of the threat of tyranny

they feared from the other two branches Hamilton: “least dangerous branch” Anti-federalists did see the judiciary as a threat.

Life tenure Supreme law of the land

Compromise left it to Congress to design the federal judiciary.

Article III Section I gave Congress the authority to establish

other courts as it saw fit. Section II specifies the judicial power of the

Supreme Court and discusses the Court’s original and appellate jurisdiction. Also specifies that all federal crimes, except those

involving impeachment, shall be tried by jury in the state in which the crime was committed

Section III defines treason and mandates that at least two witnesses appear in such cases.

Article III Did not settle the question of judicial

review Not explicitly stated in the Constitution Allows the judiciary to review the

constitutionality of acts of the other branches of government and the states Judicial review settled with Marbury v.

Madison (1803) for national government’s acts and Martin v. Hunter’s Lessee (1816) regarding state law

The Judiciary Act of 1789 and the Creation of the Federal Judicial System

Established the basic three-tiered structure of the federal court system District courts: at least one in each state, each

staffed by a federal judge Circuit Court: avenue for appeal

Each circuit court initially composed of one district court judge and two itinerant Supreme Court Justices who met as a circuit court twice a year

Supreme Court size set in the Act – chief justice and five associates Number of justices set to 9 in 1869

The Judiciary Act of 1789 and the Creation of the Federal Judicial System

First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up

John Jay, Chief Justice Later, the court decided only one major

case: Chisholm v. Georgia (1793)

Relatively lowly status One associate judge left to become chief justice

of a state supreme court. Limitations in space, support, no system for

reporting its decisions

The Early Court First decade, Court not co-equal but it did

assert itself Declined to give President Washington advice on

the legality of some of his actions Attempted to establish the Court as an

independent, nonpolitical branch Tried to advance principles of nationalism and to

maintain the national government’s supremacy over the states

Began to pave the way for announcement of the doctrine of judicial review

The Marshall Court: Marbury v. Madison (1803) and Judicial Review Marbury v. Madison

Supreme Court first asserted the power of judicial review in finding that the congressional statute extending the Court’s original jurisdiction was unconstitutional

Marshall claimed this sweeping authority for the Court by asserting that the right of judicial review was a power that could be implied from the Constitution’s supremacy clause. The immediate effect was to deny power to the

Court. The long-term effect was to establish the power

of judicial review.

Explain what makes a case justiciable.

Explain the powers of Congress and the President in affecting the courts. Framers gave federal judges tenure for life “with good

behavior” Did not want judges to be subject to the whims of politics,

the public, or politicians Hamilton argued in Federalist 78 that the “independence of

judges” was needed “to guard the Constitution and the rights of individuals.”

Some checks on judiciary included: Congress has the authority to alter the Court’s jurisdiction. Congress can propose constitutional amendments that, if

ratified, can effectively reverse judicial decisions. Congress can impeach and remove federal judges. President (with advise and consent of Senate) appoints

federal judges

Explain how the American system of law is adversarial in nature and outline the structure of the American Court System.

Two sides fight it out in court to discover truth

Importance of lawyers

Problem of inequality

Emphasis on winning

Alternative?

Explain the Appeals Process and differentiate original and appellate jurisdiction.

Trial courts Courts of original jurisdiction where a case begins

Appellate courts Courts that generally review only findings of law made by

lower courts Jurisdiction

Authority vested in a particular court to hear and decide the issues in any particular case

Original jurisdiction: The jurisdiction of courts that hears a case first, usually in a trial Courts determine the facts of a case under their original

jurisdiction. Appellate jurisdiction: The power vested in an appellate

court to review and/or revise the decision of a lower court

The American Legal System Criminal law

Codes of behavior related to the protection of property and individual safety

Reasonable Doubt

Civil law Codes of behavior related to business and

contractual relationships between groups and individuals

Preponderance of Evidence

Outline the Structure of The Federal Court System

Constitutional courts Federal courts specifically created by the

U.S. Constitution or Congress pursuant to its authority in Article III

Legislative courts Courts established by Congress for

specialized purposes, such as the Court of Military Appeals

The Federal Court System

District Courts 94 federal district courts staffed by 646

active judges, assisted by more than 300 retired judges

No district courts cross state lines Every state has at least one federal

district court The most populous states have four. (CA,

TX, and NY)

Original Jurisdiction of Federal District Courts

Involve the federal government as a party Present a federal question based on a claim

under the U.S. Constitution, a treaty with another nation, or a federal statute Called federal question jurisdiction and can

involve criminal or civil law

Involve civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000

District Courts Each federal judicial district has a U.S.

attorney. This individual is nominated by the president

and confirmed by the senate. The attorney is that district’s chief law

enforcement officer. They have a considerable amount of discretion

as to whether they pursue criminal or civil investigations or file charges against individuals or corporations.

Springboard to elective office NY City Mayor Rudy Giuliani

The Courts of Appeals The losing party in a case heard and decided in a federal

district court can appeal the decision to the appropriate court of appeals.

11 numbered circuit courts Twelfth, D.C. Court of Appeals

Handles most appeals involving federal regulatory commissions and agencies

Thirteenth, U.S. Court of Appeals for the Federal Circuit 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

Briefs submitted to them containing legal written arguments in a case

The Courts of Appeals Decisions of the court of appeals are

binding on only the district courts within the geographic confines of the circuit

Decisions of the Supreme Court are binding throughout the nation and establish national precedents Reliance on past decisions or precedents to

formulate decisions in new cases is called “stare decisis.”

Allows for continuity and predictability

The Supreme Court Often the center of highly controversial issues Reviews cases from the U.S. courts of appeals and

state supreme courts (as well as other courts of last resort)

Acts as the final interpreter of the Constitution Ensures uniformity in the interpretation of national

laws and the Constitution Resolves conflicts among the states Maintains the supremacy of national law in the federal

system 8 justices and one chief justice Relatively few support staff

Clerks plus 400 staff members

Explain the process of federal judicial appointment.

Often a very political process Judges nominated by president and

confirmed by Senate Can reflect the ideological stamp of the

president Senatorial Courtesy

A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs

Who Are Federal Judges?

Typically they have held other political offices. State court judge or prosecutor Most have been involved in politics. White males tend to dominate.

Appointments to the U.S. Supreme Court

Nomination Criteria Competence Rewards Pursuit of Political Support Religion Race, Ethnicity, and Gender Ideology or Policy Preference

Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer’s original intentions

Explain Two Judicial Philosophies

Judicial restraint: A philosophy of judicial decision making that argues

courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own sense of principles Strict Constructionist

Judicial activism: A philosophy of judicial decision making that argues

judges should use their power broadly to further justice, especially in the areas of equality and personal liberty

The Supreme Court Confirmation Process

Investigation Lobbying by Interest Groups Senate Committee Hearings Senate Vote

Few recent confirmations have been close; closest in recent history Clarence Thomas 52-48 (1991) Samuel A. Alito 58-42 (2005)

Robert Bork

Expressed strong opinions

Not confirmed by Senate

David Souter

Nominated by George H.W. Bush

Did not express opinions due to Bork

Turned out to be liberal

Clarence Thomas

Personal life became issue

Sexual Harassment

Define certiorari and explain how cases are selected by the Supreme Court.

Court has two types of jurisdiction: Original Appellate

Writ of certiorari A request for the court to order up the records from a lower court to

review the case Rule of Four

Court controls its caseload through the certiorari process. All petitions for certiorari must meet two criteria:

The case must come either from a U.S. court of appeals, a special three-judge district court, or a state court of last resort.

Case must involve a federal question. This means that the case must present questions of interpretation of federal constitutional law or involve a federal statute, action or treaty.

Cert pool Discuss list Cert granted when at least four justices vote to hear a case Role of clerks

The Supreme Court Today: Deciding to Hear a Case

Nearly 8,000 cases were filed at the Supreme Court in its 2005-2006 term. 87 heard, 74 decisions issued Early years relatively few cases decided

Main duty: riding the circuit 1940s fewer than 1000 cases filed annually Increased over time Modern period, many of the cases have involved

Bill of Rights issues

How Does a Case Survive the Process? Characteristics of the cases the Court accepts:

The federal government is the party asking for review. Solicitor General

The case involves conflict among circuit courts. The case presents a civil rights or civil liberties

question. The case involves ideological and/or policy

preferences of the justices. The case has significant social or political interest, as

evidenced by the presence of interest group amicus curiae briefs.

Outline the steps in a Supreme Court Decision

Oral argumentsThe conference and the voteWriting opinions

Majority Minority Concurring

Factors in Judicial Decision Making

Constitution and the LawJudicial PhilosophyAmicus Curae BriefsClerksPublic OpinionThe Situation

Public Opinion

Justices are exposed to information regarding the public’s attitudes on issues. Can act as a check on the power of the

courts as well as an energizing factor Brown v. Board of Education Webster example

Court subjected to lobbying, marches, etc.

Judicial Policy Making and Implementation

Policy making: More than one hundred federal laws

have been declared unconstitutional. Ability to overrule itself

Judicial Implementation: Refers to how and whether judicial

decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit

The Supreme Court Today

Surprising that so many Americans know next to nothing about the judicial system

Half surveyed in 2006 could not name a single member of the court Lack of interest Court’s privacy and sense of decorum Does not televise its proceedings