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TRANSCRIPT
THE JUDICIARY-chapter 10 AP Book
www.supremecourtus.gov
http://docket.medill.northwestern.edu/archives/004607.php
What are the qualifications per the Constitution to be on the Supreme
Court?• Discuss the nomination process.
• Page 369
• What part does the FBI play in this process?
• What part does the American Bar Association play?
• What is the Federalist Society?
The Constitution and the National Judiciary
• Article III of the Constitution establishes:– a Supreme Court in which the judicial power of the United
States is vested– life tenure with ‘good behavior’ for judges– judges receive compensation that cannot be diminished
during their service– such inferior courts as Congress may choose to establish– the original jurisdiction of the Supreme Court
• The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.
Article III - Supreme Court
President appoints
Senate confirms
Generally speaking, the Court will hear cases
• involves a basic constitutional principle
• an important question of federal law• conflict between state and federal
laws• Handout: How well do you know
your U.S. Supreme Court?
• John Paul Stevens – Ford-retired• Samuel Alito-George W. Bush• *John Roberts-George W. Bush (chief justice)• Antonio Scalia - Reagan• Anthony Kennedy - Reagan• David Souter – Bush-retired• Clarence Thomas - Bush• Ruth Bader Ginsburg - Clinton• Stephen Breyer – Clinton• Sonia Sotomayor-Obama• Elena Kagan-Obama• http://supremecourt.c-span.org/
Supreme Court 2011
Nomination and Confirmation
• The president usually tries to nominate a justice whose political philosophy is similar to his/her own
• The nominee must win approval of the Senate
• We refer to periods by the Chief Justice (Berger Court, Warren Court, Rehnquist Court, Roberts Court)
• Solicitor General-nine and a half member
Political Philosophy
Court - an ever changing political institution that fluctuates between liberalism and conservatism as well as activism and restraint.
Judicial Review• Judicial review is the power of a court to decide
if a law or other legal issue contravenes the Constitution, and overturn it.
• This power is not mentioned in the Constitution. • Judicial review was established by the Marshall
Court for itself and posterity in Marbury v. Madison (1803).
• Marbury's long-term effect has been to allow the Court to have the final say in what the Constitution means.
Judicial Review• Judges have used this power
sparingly. • The power has only been used
about 140 times to strike down acts of Congress.
• Although more frequently (over 1200 times) to invalidate acts of state legislatures.
http://sunnylandsclassroom.org/Asset.aspx?id=1468
• The American legal system is a dual system:– state courts--actually 50 different 'systems'
– federal courts
• Both systems have three tiers: JUDICIARY ACT OF 1789 Annenberg classroom-How a trial works video.– trial courts--litigation begins and courts hear the facts of the
case at hand (original jurisdiction)
– appellate courts--decide questions of law, not fact (appellate jurisdiction)
– high or supreme courts- FIGURE 10.1 PG. 357
Judicial Activism
The Court should take an active role in using its powers to check the actions of Congress, legislatures, the executive branch and agencies.Examples: Roe v. Wade-1973Brown v. Board of Education-1954
Judicial Restraint
The Supreme Court should defer to the decisions made by elected representatives of the people in the legislative and executive branches.
Federal Selection Process• The selection of judges is a very
political process.• Judges are nominated by the president
and confirmed by the Senate. – Often presidents solicit suggestions from
members of the House of Representatives, Senators, their political party, and others.
• Provides president opportunity to put philosophical stamp on federal courts
How the Justices Vote
Legal Factors• Judicial Philosophy
– Judicial Restraint - advocates minimalist roles for judges, and the latter
– Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty.
• Precedent– Prior judicial decisions serve as a rule for settling
subsequent cases of a similar nature.– STARE DECISIS
Extra-Legal Factors-Roper v. Simmons 2005• Behavioral Characteristics
– The personal experiences of the justices affect how they vote. Early poverty, job experience, friends and relatives all affect how decisions are made.
• Ideology– Ideological beliefs influence justices' voting patterns.
• The Attitudinal Model– A justice's attitudes affect voting behavior.
• Public Opinion-World Opinion– Justices watch TV, read newspapers, and go to the store like
everyone else. They are not insulated from public opinion and are probably swayed by it some of the time.
How the Justices Vote
GO TO MIRANDA ACTIVITY
http://www.teachersdomain.org/search/?q=miranda+v.+arizona&fq_grade=PK&fq_grade=PS
Go to favorites: Time Odd Todd cartoon on Miranda.
Demystifying the Cert Process
The Supreme Court “is not and has never been primarily concerned with the correction of errors in lower court decisions.”
- Chief Justice Vinson
The Certiorari Process
The Supreme Court “is not and has never
been primarily concerned with the
correction of errors in lower court decisions.”- Chief Justice Vinson
The Court’s Primary Role
To resolve conflicts in lower courts; interpret the constitution, laws and treaties of the United States
In other words:
“To secure the national rights and uniformity of judgments”
»John Rutledge at the Constitutional Convention
U.S. District Court – 94 districts
Federal Trials
U.S. Circuit Court of Appeals: 12 circuits + Federal Circuit
FEDERAL: 1 million cases/yr STATES: 30 million
cases/yr
Trial Courts – municipal or county
Local Trials
State Supreme Court – highest state court
Intermediate Appeals Court
U.S. Supreme Court
Original Jurisdiction
~80% of cases accepted come from federal system
<1% of cases accepted are original jurisdiction
~ 80 Decisions
Fed.
DC
How many cert petitions are considered?
• In recent terms, there have been between 7,000 and 9,000 cases appealed to the Supreme Court each year
• Out of approx. 8,000 petitions in the average year,
about 70 to 75 are granted (0.9%)
Paid PetitionsPetitions that pay the $300 filing fee
In forma pauperislitigants who can’t pay the filing fee (often prisoners)
~20% of petitions ~80% of petitions
3-4% granted 0.2% granted
Make up 85-90% of docket
Make up 10-15% of docket
Cert: The Numbers in 2008-09
6,142 IFP Petitions1,596 paid Petitions
78 cases argued, 75 decided after argument
About 1% of all petitions!
7,738 total Petitions
+
Statistics compiled from Chief Justice Roberts’s 2009 Year-End Report on the Federal Judiciary and SCOTUSBlog, 6.29.09 StatPack
Cert: The Justices’ Role
With 8,000 petitions per year:
If a Justice spent 40 hours per week, 50 weeks
per year ONLY reading cert petitions, they
would be able to allocate approximately 15
minutes to each petition (which may include
the petition itself, the brief in opposition, a
reply brief, and amicus briefs).
The Justices cannot possibly read all the cert petitions. They just don’t have the time.
Cert Pool
IN the pool NOT in the pool
Roberts
Scalia
Kennedy
Sotomayor
Thomas
Ginsburg
Breyer
Stevens
Alito
=
4 clerks x 7 justices =
28 law clerks
read 8,000 petitions
Each clerk reads and writes a memo on 285 petitions/yr
4 clerks x 2 justices =
8 law clerks
read 8,000 petitions
Each clerk reads 1000 petitions/yr
=
Advantages of the Pool
• Saves time• Someone is more thoroughly going
over each petition• Clerks from other chambers can
mark up pool memos and give to their justice
Disadvantages of the Pool
• Reduces independence if seven of the nine justices are in the pool and they’re relying on one writer for each memo
• The pool gives clerks - generally one year out of law school and only at the Court for one year - too much responsibility for setting the Court’s agenda
“Discuss List”
• The Chief Justice generates a discuss list, based on memos prepared by clerks. Other justices may add to the list.
• All cases generated by Solicitor General (head Supreme Court lawyer for federal government) are automatically discussed
• All Capital Cases discussed (no such thing as a “frivolous case” here)
The Rule of Four
• If four justices vote to grant cert, it is granted
• Designed to prevent tyranny of the majority• If a case does not gain four votes, a justice
may write a “dissent from denial,” but this is extremely rare
• All votes are secret
More “cert-worthy” criteria
• Conflict in lower courts • Important
– Multiple amicus briefs at cert stage– Affects large number of people – Unique/one of a kind case this Court must decide
More reasons to deny than to grant!
• A better case “in the pipeline”• The issue hasn’t “percolated” enough• A petition that raises too many
questions (prefer focusing on one issue)
• Bad vehicle for reaching this legal issue
• Case is deemed “frivolous”
• What’s important is the legal issue raised, not the parties or facts
• Assumption is: a better case will come along if the issue is important
• Don’t want to risk producing a fractured opinion (4-4-1 or 4-2-3 splits)
Petitions filed by individuals are lower priority
Ranking tends to be:#1 - U.S. government#2 - Corporations#3 - States#4 - Organized groups#5 - Individuals
Go to cert activity
Then again…
“It is really hard to know what makes up the broth of the certification process… Some cases are ones you can just smell as grants.”
Supreme Court Justice, 1990 http://supremecourt.c-spa
n.org/CurrentCourt.aspx
How Supreme Court Decisions are Made
Case on the DocketApprox 95
Briefs and Amicus Briefs submitted
Justices ConferenceCases discussed
Votes takenOpinion Assigned
Opinions AnnouncedOpinions Drafted
and Circulated
Oral Argument
RESEARCH SITES
www.oyez.org/oyez/frontpage
www.findlaw.com
www.law.cornell.edu
www.landmarkcases.orgwww.landmarkcases.org
Landmark Cases
• Marbury vs. Madison (1803) judicial review• McCulloch vs. Maryland (1819) upheld
implied powers clause-to tax a bank• Gibbons vs. Ogden (1824) power to
regulate interstate commerce, federal law prevails over state law
• Dred Scott vs. Sandford (1857) contributed to the Civil War
Landmark Cases cont.• Plessy vs. Ferguson (1896) “separate
but equal”• Brown vs. Board of Education (1954)
“separate is inherently unequal”• Baker vs. Carr (1962) reapportionment,
one person one vote• Roe vs. Wade (1973) right to privacy• Gideon v. Wainwright (1961) right to
counsel GO TO DVD
SELECTED SUPREME COURT CASES
• In your textbook: pages 744-750.
• You have a quick reference for cases.
The Supreme Court Today• According to a 1990 poll, only 23% of Americans
knew how many justices sit on the Supreme Court, and two-thirds could not name a single member.
• In 1998, a poll of teenagers showed that only 2% could name the Chief Justice.
• Yet, Supreme Court decisions have been credited with strengthening the Constitution, increasing the power of the federal gov’t., starting the Civil War, reshaping race relations, restoring fairness to our electoral system, redefining the rights of women, and most recently deciding a presidential election!