Chapter 12

The JudiciaryThe Judiciary

Common Law Tradition Common law = judge-made law; originated in

England; derived from prevailing customs Precedent = court ruling bearing on

subsequent legal decisions in similar cases Emanates from stare decisis, or standing on

decided cases Precedents set by Supreme Court binding on

all lower courts; highest court in U.S.

Sources of American Law

Constitutions United States Constitution State Constitutions

Congressional Statutes Administrative regulations Case law = previous court decisions

Basic Judicial Requirements

Jurisdiction (Article III, Section 1) Authority to hear and decide a case

Federal question U.S. Constitution, treaties, federal law

Diversity of citizenship Parties from different states or countries

Standing to sue Sufficient state to justify bringing suit; party must

have been threatened by or suffered a harm as a result of the action

Justiciable controversy Real, substantial case; no hypotheticals

Federal Courts U.S. District Courts

Trial courts of general jurisdiction 94 total, at least one in each state

U.S. Courts of Appeals 13 total, regional jurisdiction Appellate courts Hears appeals from district courts Panels of three or more judges

Supreme Court 9 justices Number can be changed by Congress Appointment process often highly politicized Primarily an appellate court Hears appeals from federal courts and highest

state courts Only deals with federal questions Writ of certiorari/rule of four (sur-shee-uh-rah-

ree, petition for review approved by 4 justices) Oral arguments

Which Cases Reach the Supreme Court?

a subjective process, but certain factors increase a case’s chances

Two lower courts are in disagreement

Lower court’s ruling conflicts with an existing Supreme Court ruling

Case has broad significance State court has decided a substantial

federal question

Which Cases Reach the

Supreme Court? (cont.)

Highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law

Federal court holds an act of Congress unconstitutional

Solicitor general is pressuring the Court to hear a case

Types of Court Decisions

Discuss cases twice a week in conference

Opinions Unanimous = all agree Majority = at least 5 agree Concurring = support with qualification Dissenting = disagrees with court ruling

Affirm = court ruling is valid Reverse = void a court ruling Remand = send the case back

Selection of Federal Judges

Appointed by the president Confirmed by the Senate Senatorial courtesy and district courts Partisanship of court appointees Senate Judiciary Committee hearings

Courts as Policymakers Our current court, p. 296 Judicial review = power of the courts to

declare the laws of Congress and acts of governmental officials unconstitutional

Judicial activism = taking a broad view of the Constitution and using judicial power to direct policy towards a desired goal

Judicial restraint = rarely using judicial review and limiting judicial action in the policy process

Checks on the Judiciary Executive checks

Judicial implementation = court has no enforcement power

Appointments Legislative checks

Appropriation of funds to carry out rulings

Constitutional amendments Amending laws to overturn court’s

rulings

Checks on the Judiciary, (cont.)

Public opinion Sometimes can ignore decisions Pressure for non-enforcement Influence judicial opinions

Judicial self-restraint Tradition of restraint Narrow focus of judicial questions Political questions better decided by other

branches Stare decisis = following precedent

Discussion questions

1. What are the major sources of law in the U.S.?

2. What would be the strengths and weaknesses of electing justices?

3. What would our political system look like if judicial review had been rejected?

4. Should federal judges engage in judicial activism or judicial restraint?

5. Describe the checks on judicial power.

Hot Links to Selected Internet Resources: Book’s Companion Site:

http://politicalscience.wadsworth.com/schmidtbrief2004

Wadsworth’s Political Science Site: http://politicalscience.wadsworth.com

The Federal Judiciary: http://www.uscourts.gov

Supreme Court of the United States: http://supremecourtus.gov

FindLaw: http://www.findlaw.com