THE JUDICIARY THE JUDICIARY BRANCHBRANCH

TYPES OF LAWTYPES OF LAW Common LawCommon Law

Judge-made lawJudge-made law Rules that have been created by judges through their Rules that have been created by judges through their

decisionsdecisions Every state based law on English common law except Every state based law on English common law except

LouisianaLouisiana Stare DecisisStare Decisis

““let the decision stand”let the decision stand” ““to stand on decided cases”to stand on decided cases”

PrecedentPrecedent Previous court rulingsPrevious court rulings Judges obligated to applyJudges obligated to apply Can be overturned Can be overturned

EquityEquity Judges issue orders preventing possible damage or to Judges issue orders preventing possible damage or to

direct that some action be takendirect that some action be taken Injunctions, cease and desist orders, restraining ordersInjunctions, cease and desist orders, restraining orders

TYPES OF LAWTYPES OF LAW Statutory LawStatutory Law

Legislation passed by Congress, state legislators, or city Legislation passed by Congress, state legislators, or city councilscouncils

Public can create through initiative and referendumPublic can create through initiative and referendum Ruled by supremacy policyRuled by supremacy policy

Constitutional LawConstitutional Law Interpretation and application of US Constitution and state Interpretation and application of US Constitution and state

constitutionsconstitutions Case LawCase Law

Collective decisions of the courts and their inherent legal Collective decisions of the courts and their inherent legal meaningmeaning

Administrative LawAdministrative Law Rules and regulations that are issued by federal Rules and regulations that are issued by federal

bureaucratic agenciesbureaucratic agencies

TYPES OF LAWTYPES OF LAW Civil LawCivil Law

Disputes between two private partiesDisputes between two private parties Monetary damages are usually the punishmentMonetary damages are usually the punishment

Criminal LawCriminal Law Crimes against societyCrimes against society Government is the enforcer of criminal Government is the enforcer of criminal

law/plaintiff law/plaintiff Accused is defendantAccused is defendant Violations range from misdemeanors to feloniesViolations range from misdemeanors to felonies Burden of proof greater than in Civil casesBurden of proof greater than in Civil cases Penalties include probation, fines, Penalties include probation, fines,

imprisonment, or executionimprisonment, or execution Majority of criminal and civil cases violate state Majority of criminal and civil cases violate state

law and therefore tried in state courtslaw and therefore tried in state courts

PARTICIPANTSPARTICIPANTS LitigantsLitigants

Plaintiff-party that brings case to courtPlaintiff-party that brings case to court Defendant-party accused of violationDefendant-party accused of violation In court to In court to

Right a perceived wrongRight a perceived wrong Change an existing lawChange an existing law Sue for damagesSue for damages Challenge actions of gov’t and corp.Challenge actions of gov’t and corp.

Standing to sue-sincere interest in case and be Standing to sue-sincere interest in case and be in danger of suffering injury or harm from the in danger of suffering injury or harm from the other partyother party

Class Action suits-group of people sue Class Action suits-group of people sue representing any person who sustained the representing any person who sustained the same injuries in the same situationssame injuries in the same situations

PARTICIPANTSPARTICIPANTS

Interest GroupsInterest Groups Understand power of courts to make public Understand power of courts to make public

policypolicy Seek out strong litigants and casesSeek out strong litigants and cases File amicus curiae briefs-”friend of the court” File amicus curiae briefs-”friend of the court”

LawyersLawyers Defend and prosecute individualsDefend and prosecute individuals Translate policies into legal terminologyTranslate policies into legal terminology Enforce and challenge existing Enforce and challenge existing

statutes/laws/precedentsstatutes/laws/precedents Legal Services Corporation-federally funded to Legal Services Corporation-federally funded to

help poor with legal representationhelp poor with legal representation

PARTICIPANTSPARTICIPANTS

JudgesJudges Center of processCenter of process Neutral umpires who weigh the facts of a Neutral umpires who weigh the facts of a

case and guarantee that a court hearing case and guarantee that a court hearing is fair to all concerned partiesis fair to all concerned parties

BackgroundBackground Federal judges-lawyers, white males, Federal judges-lawyers, white males,

politically active, middle aged, upper class, politically active, middle aged, upper class, and Protestantand Protestant

State court-practicing attorneys, law-school State court-practicing attorneys, law-school professors, former members of state professors, former members of state legislatures or Congress, more representative legislatures or Congress, more representative of American populationof American population

ORGANIZATIONORGANIZATION

Dual Court SystemDual Court System State and local courtsState and local courts

Majority of casesMajority of cases HierarchyHierarchy

Lowest level-municipal, district, county, and Lowest level-municipal, district, county, and police courtspolice courts

Superior or circuit court-trial court Superior or circuit court-trial court Appellate courtAppellate court State supreme courtState supreme court

Special courtsSpecial courts Domestic relations, wills, and estatesDomestic relations, wills, and estates

ORGANIZATIONORGANIZATION

Dual Court SystemDual Court System Federal Courts/Constitutional CourtsFederal Courts/Constitutional Courts

Exercise powers given in Article III of the Exercise powers given in Article III of the ConstitutionConstitution

District Courts, intermediate courts of appeals, District Courts, intermediate courts of appeals, Court of International trade, Foreign Intelligence Court of International trade, Foreign Intelligence Surveillance court, and the US Supreme CourtSurveillance court, and the US Supreme Court

Judges appointed for lifeJudges appointed for life Congress given power to constitute lower courtsCongress given power to constitute lower courts

Court of Federal Claims & Tax CourtCourt of Federal Claims & Tax Court Judges have fixed termsJudges have fixed terms

ORGANIZATIONORGANIZATION

JurisdictionJurisdiction Authority of the court to hear, try, and decide a Authority of the court to hear, try, and decide a

casecase Federal court jurisdictionFederal court jurisdiction

Constitutional interpretation, violations of federal law, Constitutional interpretation, violations of federal law, questions of admiralty or maritime law, where litigants questions of admiralty or maritime law, where litigants are the United States, a sovereign state, or a citizen of a are the United States, a sovereign state, or a citizen of a state suing another statestate suing another state

Exclusive jurisdictionExclusive jurisdiction Cases involving an ambassador, federal crime, Cases involving an ambassador, federal crime,

infringement of a patent, copyright, or an act of Congress infringement of a patent, copyright, or an act of Congress can only be heard in federal courtcan only be heard in federal court

Concurrent jurisdictionConcurrent jurisdiction Cases that may be tried in either state or federal courtCases that may be tried in either state or federal court

ORGANIZATIONORGANIZATION Selection of federal, state, and local judgesSelection of federal, state, and local judges

President appoints all federal judgesPresident appoints all federal judges Senate confirms with a majority voteSenate confirms with a majority vote Most appointees are the same political Most appointees are the same political

ideology as the presidentideology as the president Senatorial Courtesy-senators from the Senatorial Courtesy-senators from the

presidents party have veto on judges from presidents party have veto on judges from their statetheir state

Senate Judiciary Committee holds hearings on Senate Judiciary Committee holds hearings on the nomineesthe nominees

Federal judges have lifelong appointment, but Federal judges have lifelong appointment, but can be impeached and removed if found guilty can be impeached and removed if found guilty of criminal offensesof criminal offenses

Those that retire at 65 and have served for 15 Those that retire at 65 and have served for 15 years receive a full salary the rest of their livesyears receive a full salary the rest of their lives

ORGANIZATIONORGANIZATION

Selection of federal, state, and local Selection of federal, state, and local judgesjudges State and local judges are selected by State and local judges are selected by

election for fixed terms, or appointment election for fixed terms, or appointment by the governor or mayorby the governor or mayor

Missouri Plan-judge is first appointed for Missouri Plan-judge is first appointed for a fixed term and then must gain voter a fixed term and then must gain voter approval to stay in officeapproval to stay in office

About 25 states use this methodAbout 25 states use this method

US DISTRICT COURTUS DISTRICT COURT Federal trial courtsFederal trial courts Handle majority of federal casesHandle majority of federal cases Original jurisdictionOriginal jurisdiction Handle both criminal and civil casesHandle both criminal and civil cases 94 district courts94 district courts

Each state has at least oneEach state has at least one One in each territoryOne in each territory

Grand juriesGrand juries Indict individuals after determining there is enough evidence Indict individuals after determining there is enough evidence

to justify a trialto justify a trial Jury trialsJury trials Number of judges depends on populationNumber of judges depends on population

One to 27One to 27 Single judges typically hear casesSingle judges typically hear cases Voting rights and anti-trust cases have a three judge panelVoting rights and anti-trust cases have a three judge panel

US DISTRICT COURTUS DISTRICT COURT Federal crimesFederal crimes

Tampering with mail, counterfeiting, interstate Tampering with mail, counterfeiting, interstate threat, bank robbery, kidnapping, tax evasion, threat, bank robbery, kidnapping, tax evasion, treasontreason

Civil casesCivil cases US government named as a partyUS government named as a party Bankruptcy Bankruptcy

Key personnelKey personnel Magistrates-appointed by judges to an 8 year Magistrates-appointed by judges to an 8 year

term, variety of duties including; issuing term, variety of duties including; issuing warrants and setting bailwarrants and setting bail

Bankruptcy judgesBankruptcy judges US attorneys-prosecutors for the governmentUS attorneys-prosecutors for the government US marshals-four year terms, concerned with US marshals-four year terms, concerned with

arrest procedures and implementation of arrest procedures and implementation of judicial ordersjudicial orders

US COURT OF APPEALSUS COURT OF APPEALS Designed to relieve the burden of Supreme Court Designed to relieve the burden of Supreme Court

casescases Most losing litigants appeal Most losing litigants appeal 13 courts13 courts

One in each of the 11 judicial circuits (regions)One in each of the 11 judicial circuits (regions) One for the District of ColumbiaOne for the District of Columbia

US Court of Appeal for the Federal CircuitUS Court of Appeal for the Federal Circuit Specializes in customs and patent appealsSpecializes in customs and patent appeals Designed to accelerate appeals-National jurisdictionDesigned to accelerate appeals-National jurisdiction

Panel of three judges hear most casesPanel of three judges hear most cases Do not retry cases, but review records of the lower Do not retry cases, but review records of the lower

court proceedings and evaluate arguments about court proceedings and evaluate arguments about legal questions raised legal questions raised

Can uphold the lower courts ruling, modify part of Can uphold the lower courts ruling, modify part of its ruling or remand (send back) a case to the trial its ruling or remand (send back) a case to the trial court for additional reviewcourt for additional review

Review about 55,000 cases a yearReview about 55,000 cases a year

US COURT OF INTERNATIONAL US COURT OF INTERNATIONAL TRADETRADE

Established in 1890Established in 1890 Nine judgesNine judges Deals with disputes from tariff and Deals with disputes from tariff and

trade issuestrade issues Civil lawCivil law Heard in key port cities around the Heard in key port cities around the

nationnation

US FOREIGN INTELLIGENCE US FOREIGN INTELLIGENCE SURVEILLANCE COURTSURVEILLANCE COURT

Established in 1978Established in 1978 Originally composed of 7 judges, Originally composed of 7 judges,

expanded to 11 judges by the Patriot expanded to 11 judges by the Patriot ActAct

Hears requests from the FBI, National Hears requests from the FBI, National Security Agency, and other intelligent Security Agency, and other intelligent organizations for surveillance warrants organizations for surveillance warrants to investigate possible foreign to investigate possible foreign subversives or terrorist suspectssubversives or terrorist suspects

Proceedings held in secretProceedings held in secret

US SUPREME COURTUS SUPREME COURT Consists of nine membersConsists of nine members

Chief Justice and 8 associate justicesChief Justice and 8 associate justices Appointed for life by the president and Appointed for life by the president and

confirmed by the senate confirmed by the senate Court of last resort on all questions of Court of last resort on all questions of

federal lawfederal law Term lasts approximately 9 months from Term lasts approximately 9 months from

the first Monday in October to the the first Monday in October to the following June or Julyfollowing June or July

Cases not decided on in one term are Cases not decided on in one term are carried over to the nextcarried over to the next

Judicial ReviewJudicial Review Marbury v. Madison (1803)Marbury v. Madison (1803)

US SUPREME COURTUS SUPREME COURT Original JurisdictionOriginal Jurisdiction

Cases involving ambassadors of foreign Cases involving ambassadors of foreign nations and when a state is party to a nations and when a state is party to a disputedispute

Few casesFew cases Appellate jurisdictionAppellate jurisdiction

Appealed from lower courtsAppealed from lower courts 8,000 to 9,000 filed each year8,000 to 9,000 filed each year Court hears arguments and renders Court hears arguments and renders

decisions on only about 100decisions on only about 100

US SUPREME COURTUS SUPREME COURT How cases reach the courtHow cases reach the court

Disposed cases-those not containing Disposed cases-those not containing significant constitutional challenges and significant constitutional challenges and sent back to the lower court or those sent back to the lower court or those that the court agrees withthat the court agrees with

Rule of Four-Four of the nine justices Rule of Four-Four of the nine justices must agree to hear the casemust agree to hear the case

Writ of Certiorari-”to be made more Writ of Certiorari-”to be made more certain”certain”

Order by the Court to send up the case Order by the Court to send up the case record because there is a claim that the record because there is a claim that the lower court mishandled the caselower court mishandled the case

90% after review are denied by the Court90% after review are denied by the Court

US SUPREME COURTUS SUPREME COURT Which cases are heard by the courtWhich cases are heard by the court

Factors for acceptanceFactors for acceptance Different rulings by lower courts, rulings in conflict Different rulings by lower courts, rulings in conflict

with a Supreme Court ruling, important constitutional with a Supreme Court ruling, important constitutional or societal implications, eminent domain, prominent or societal implications, eminent domain, prominent individuals or groups involvedindividuals or groups involved

Solicitor GeneralSolicitor General Federal government’s attorney in the Supreme CourtFederal government’s attorney in the Supreme Court Decision to appeal lower courts decision invites Decision to appeal lower courts decision invites

Courts reviewCourts review Pauper PetitionsPauper Petitions

Gideon v. WainwrightGideon v. Wainwright No lawyer or bad court defendersNo lawyer or bad court defenders

US SUPREME COURTUS SUPREME COURT How is a case decidedHow is a case decided

About 3/4About 3/4thsths of cases decided without oral arguments of cases decided without oral arguments Court issues ruling in a per curiam (unsigned written) Court issues ruling in a per curiam (unsigned written)

opinion that explains decisionopinion that explains decision Attorneys submit briefs that argue the cases merits or Attorneys submit briefs that argue the cases merits or

flawsflaws Each side is permitted half an hour to present its case Each side is permitted half an hour to present its case

orally and answer questions from the justices orally and answer questions from the justices Justices meet in secret conference, discuss, and voteJustices meet in secret conference, discuss, and vote Cases decided by simple majorityCases decided by simple majority If the Chief Justice agrees with the decision, he writes If the Chief Justice agrees with the decision, he writes

the Majority Opinion ( or assigns another justice)the Majority Opinion ( or assigns another justice) If the Chief Justice does not agree, then the most senior If the Chief Justice does not agree, then the most senior

member in the majority writes the opinionmember in the majority writes the opinion Concurring OpinionsConcurring Opinions

Written by other justices that agree with the decision, but Written by other justices that agree with the decision, but not for the same legal reasonsnot for the same legal reasons

Dissenting OpinionsDissenting Opinions Written by justices that do not agree with the majority and Written by justices that do not agree with the majority and

their reasons whytheir reasons why

US SUPREME COURTUS SUPREME COURT OpinionsOpinions

Set precedentSet precedent Any dissenting or minority opinions could be Any dissenting or minority opinions could be

used in future casesused in future cases Actual DecisionActual Decision

Announced in open courtAnnounced in open court All decisions/opinions published in the United All decisions/opinions published in the United

States ReportsStates Reports ImplementationImplementation

Lower courts are to followLower courts are to follow Government agencies must implementGovernment agencies must implement Outright defiance is rareOutright defiance is rare Delay and evasion are more common strategiesDelay and evasion are more common strategies

EVOLUTION OF SUPREME EVOLUTION OF SUPREME COURTCOURT

Marshall CourtMarshall Court Chief Justice John Marshall instituted the idea Chief Justice John Marshall instituted the idea

of giving a single opinion for the entire courtof giving a single opinion for the entire court Established the doctrine of judicial reviewEstablished the doctrine of judicial review Improved the courts imageImproved the courts image Built the judicial foundation for a powerful Built the judicial foundation for a powerful

national governmentnational government Ruled to protect private property and for a Ruled to protect private property and for a

powerful central govt in contrary to powerful powerful central govt in contrary to powerful statestate

Taney Court (1836-1864)Taney Court (1836-1864) Chief Justice Roger Taney developed the Chief Justice Roger Taney developed the

constitutional basis for state police powerconstitutional basis for state police power Could not resolve the slavery issueCould not resolve the slavery issue Became infamous due to the Dred Scott Became infamous due to the Dred Scott

decisiondecision

EVOLUTION OF SUPREME EVOLUTION OF SUPREME COURTCOURT

ReconstructionReconstruction Court tried to overturn Congressional Court tried to overturn Congressional

reconstruction actsreconstruction acts Congress repealed its appellate jurisdiction and Congress repealed its appellate jurisdiction and

reduced the size of the court to 7 membersreduced the size of the court to 7 members President Grant reinstated the size to 9 President Grant reinstated the size to 9

Corporate Power (1875-1937)Corporate Power (1875-1937) Court sympathetic to growth of corporate Court sympathetic to growth of corporate

powerpower It limited national government and states’ It limited national government and states’

regulatory statutesregulatory statutes Conflicted with FDR’s plans for combating the Conflicted with FDR’s plans for combating the

depressiondepression Court packing threat Court packing threat

EVOLUTION OF SUPREME EVOLUTION OF SUPREME COURTCOURT

Warren Court (1953-1969)Warren Court (1953-1969) Dominated by liberal majority, led by Dominated by liberal majority, led by

Chief Justice Earl WarrenChief Justice Earl Warren Rulings benefited the disadvantaged, Rulings benefited the disadvantaged,

strengthened civil liberties, changed the strengthened civil liberties, changed the nature of legislative reapportionment, nature of legislative reapportionment, and called for the desegregation of and called for the desegregation of southern schoolssouthern schools

Greatly expanded federal power at the Greatly expanded federal power at the expense of states expense of states

EVOLUTION OF SUPREME EVOLUTION OF SUPREME COURTCOURT

Burger Court (1969-1986)Burger Court (1969-1986) Nixon appointed Warren Burger to replace the Nixon appointed Warren Burger to replace the

retiring Warren along with three other justicesretiring Warren along with three other justices Court became increasingly conservativeCourt became increasingly conservative However it became very supportive of womenHowever it became very supportive of women

Roe v. Wade-abortion rulingRoe v. Wade-abortion ruling Ruled against laws that discriminated against women Ruled against laws that discriminated against women

in the workplace, but ruled against pregnancy as a in the workplace, but ruled against pregnancy as a temporary disability or sick pay benefitstemporary disability or sick pay benefits

Required school busing to help desegregate Required school busing to help desegregate the souththe south

Upheld affirmative actionUpheld affirmative action Ironically, forced Nixon to turn over secret tape Ironically, forced Nixon to turn over secret tape

recordings that led to his resignationrecordings that led to his resignation

EVOLUTION OF SUPREME EVOLUTION OF SUPREME COURTCOURT

Rehnquist Court (1986-2005)Rehnquist Court (1986-2005) Even more conservative than Burger CourtEven more conservative than Burger Court Reagan appointed three justices, Bush Sr. Reagan appointed three justices, Bush Sr.

appointed twoappointed two Only two justices could be counted as liberalOnly two justices could be counted as liberal Modified liberal decisions on the issues of Modified liberal decisions on the issues of

criminal rights, abortion, and affirmative actioncriminal rights, abortion, and affirmative action Goal to limit congressional power over the Goal to limit congressional power over the

statesstates After two Clinton appointments, Court became After two Clinton appointments, Court became

more moderatemore moderate George W. Bush’s two appointments could George W. Bush’s two appointments could

swing the court into a more conservative eraswing the court into a more conservative era

CONSTRAINTSCONSTRAINTS PresidentPresident

Speak out against and refuse to implementSpeak out against and refuse to implement CongressCongress

Impeach Impeach Reject appointmentsReject appointments Increase number of judgesIncrease number of judges Constitutional amendmentsConstitutional amendments Refuse to appropriate money needed to implement Refuse to appropriate money needed to implement

decisionsdecisions Public OpinionPublic Opinion

Aware of public opinion and changing political moodsAware of public opinion and changing political moods Absence from media makes it the most respected of the Absence from media makes it the most respected of the

three branchesthree branches However, this support makes it easier for the court to However, this support makes it easier for the court to

rule in favor of minority groupsrule in favor of minority groups