The Federal Judiciary

How the Supreme Court works

The Federal Judiciary Federal courts deal only with business of

the entire country, not just of any one state

American courts handle many kinds of law: the major types are…

The Federal Judiciary STATUTORY LAW – law made by a

legislature or other law-making body such as a city council, board of commissioners, etc.

The Federal Judiciary COMMON LAW – law that is not written by

a law-making body, but that has come about through custom or habit and that over time has become accepted practice.

The Federal Judiciary CONSTITUTIONAL LAW – Supreme Court

decisions on previous questions about interpreting the Constitution, or in judging statutory laws in terms of whether they follow the rules set by the Constitution.

The Federal Judiciary CRIMINAL LAW – laws made by the federal

legislature, state legislatures, city councils, boards of commissioners, etc; these laws define crimes and set the punishments for them.

The Federal Judiciary CIVIL LAW – laws that deal with

relationships between and among citizens. Civil laws relate to things like inheritances,

marriages, divorces, injury lawsuits, etc. Civil courts don’t handle crimes, just

situations that citizens can’t sort out themselves

Federal courts rarely get involved in civil law

The Federal Judiciary A case might come to the Supreme Court

because of a question or complaint about a lower court decision. In such a case, the decision is said to be “under appeal.”

In such a matter, the Supreme Court has “appellate jurisdiction”

“jurisdiction” means “the right to hear a case”

The Federal Judiciary When a suit is brought against the US

government, it is heard in the Supreme Court

When a state sues another state, it is heard in the Supreme Court

These are not “appeals” This is called “original jurisdiction” Meaning: this kind of case goes straight to

the highest court in the nation

The Federal Judiciary The federal judiciary consists of the

Supreme Court, other federal courts, and the district courts that serve those courts.

Judicial branch was set up in Article III of the Constitution.

Article III is sketchy; it only says “Congress shall set up a Supreme Court and a federal court system.” It gives no other specific rules.

The Federal Judiciary presiding judge in any court is said to be

on the bench of that court. People speak of “the federal bench” or

“the state bench” to refer to state and federal courts.

When you see the phrase “on the Bench” (capital B) the writer is referring to the Supreme Court.

The Federal Judiciary There are only three ways that a position

can open up on the federal bench: The justice dies The justice retires voluntarily The justice is impeached, found guilty, and

is removed.

The Federal Judiciary A president who gets to appoint a new

federal judge has an opportunity to affect government for a long time into the future.

All presidents hope for the chance to put a judge who shares their political opinions on the Supreme Court

The Federal Judiciary When an opening occurs, the president

gets special advisors to locate a suitable nominee

Check the person’s background, history, legal writings, etc. This process is called vetting.

Nominee’s name goes to the Senate for confirmation

The Federal Judiciary

Judicial activism is a way of looking at the law and The Constitution as changeable things, that can and should be interpreted different ways to different generations.

Judicial activism is very controversial; some say it allows judges to actually make law, rather than a legislature

The Federal Judiciary The opposite of judicial activism is called

judicial restraint. This theory tends to see the law as

absolute and unchanging. Believers in this theory say law-making is

the legislature’s job, not the judiciary’s job.

The Federal Judiciary Liberals tend to accept judicial activism Conservatives tend to resist it When the Supreme Court ordered

American school de-segregated in the 1950s, that was an example of judicial activism

The Court ordered an action the legislature did not want to do

The Federal Judiciary When The Supreme Court decides a case,

it considers many things Of course, they must consider what the

Constitution actually says. Another is called stare decisis – a Latin

phrase meaning “look at the standing decisions.”

The Federal Judiciary Sometimes the Court makes a decision

and announces that an earlier opinion was incorrect, and must now be corrected.

This process is called overturning a decision.

The Federal Judiciary Supreme Court gets thousands of petitions

each year, and can’t take all of them If they agree to hear a case they issue a

writ of certiorari, a legal document inviting the petitioner to come to the Supreme Court.

Most petitioners don’t get the writ; the Court turns most cases down

The Federal Judiciary Only specialized lawyers can argue a case

before the Supreme Court. This takes extra training and experience It is considered a very great honor to be

chosen to argue before the Court

The Federal Judiciary Each side is allowed to bring statements

from persons or groups that are interested in its case.

These letters (“briefs,” in the legal phrase) are called amicus curiae briefs (Latin for “friend of the court briefs.”)

The Federal Judiciary All nine justices sit on the bench for each

hearing. After each side has spoken its case, the

justices are free to ask questions. Justices can also interrupt the attorneys as they speak.

The Federal Judiciary The Court is in session October through

May (maybe June, if there is a heavy case load.) The actual decision is announced at any time during that frame.

Once the Supreme Court announces its decision (called an “opinion”) no one can overturn it except a later Supreme Court

The Federal Judiciary After the final decision is made, the Chief

will assign one justice to write the majority’s opinion, and one to write the minority’s opinion

The minority opinion is often called a “dissent” (dissent means to disagree)

Supreme Court Cases you ought to know (I never said they were all good decisions….)

Marbury v. Madison, 1804: upheld the Court’s right to overturn unconstitutional laws

Dred Scott v. Sandford, 1857: stated “Black persons have no rights that the country is bound to recognize.”

Plessy v. Ferguson, 1897: stated states or companies can segregate facilities as long as the facilities are equal

Supreme Court Cases you ought to know (I never said they were all good decisions….) Schenck v. US, 1917: decided that the

government can limit civil liberties of citizens during times of “clear and present danger” to the country

Brown v. Topeka Board of Education, 1954: overturned Plessy, stated “separate but equal” is not equal, public facilities must be equally open to all ethnic and racial groups

Supreme Court Cases you ought to know (I never said they were all good decisions….) Gideon v. Wainwright, 1961: stated that

defendants unable to pay for an attorney must have an attorney supplied by the court

Miranda v. Arizona, 1966: stated that a person must be reminded or informed of his/her constitutional rights before a legal arrest can be made

Supreme Court Cases you ought to know (I never said they were all good decisions….) Roe v. Wade, 1973: stated a woman is

entitled to secure abortion as an extension of her 4th amendment right to privacy

University of California v. Bakke, 1978: limited “affirmative action” programs to those of minority races, not of majority races

Bush v. Gore, 2000: decided the close 2000 election in favor of President George Bush

Is the Supreme Court always right? No – history has shown that The Constitution is written that mistakes

made by the Court can be correction The Constitution also allows the law to

change as people’s understanding of the world changes