American American Government and Government and

Politics Today Politics Today

Chapter 13Chapter 13

The CourtsThe Courts

The Common Law TraditionThe Common Law Tradition

American law stems from English legal American law stems from English legal traditiontradition

Unlike the law in many other countries, Unlike the law in many other countries, English law is based on common lawEnglish law is based on common law– Judge-made law is based on custom and then Judge-made law is based on custom and then

on precedenton precedent– Stare decisisStare decisis: to stand on decided cases: to stand on decided cases– A decision in an initial case is binding on A decision in an initial case is binding on

ensuing cases of that typeensuing cases of that type– Major advantages of this system are Major advantages of this system are

efficiency and stabilityefficiency and stability

Sources of American LawSources of American Law

– ConstitutionsConstitutions– Statutes and administrative Statutes and administrative

regulationsregulations– Case lawCase law

The Federal Court SystemThe Federal Court System– Basic judicial requirementsBasic judicial requirements

JurisdictionJurisdiction: the authority to hear and : the authority to hear and decide casesdecide cases

The Constitution says that federal The Constitution says that federal courts have courts have jurisdiction in cases that: jurisdiction in cases that: – Involve a federal questionInvolve a federal question– Involve diversity of citizenshipInvolve diversity of citizenship

Standing to sueStanding to sue

The Federal Court SystemThe Federal Court System

Types of Federal CourtsTypes of Federal Courts– U.S. District CourtsU.S. District Courts– U.S. Courts of AppealsU.S. Courts of Appeals– The U.S. Supreme CourtThe U.S. Supreme Court– Specialized federal courts and the “war Specialized federal courts and the “war

on terrorism”on terrorism” The FISA courtThe FISA court Alien “removal courts”Alien “removal courts”

Parties and ProceduresParties and Procedures

– PlaintiffPlaintiff: the person or organization that : the person or organization that initiates a lawsuit initiates a lawsuit

– DefendantDefendant: the person or organization : the person or organization against whom the lawsuit is brought against whom the lawsuit is brought

– LitigateLitigate: to engage in a legal proceeding or : to engage in a legal proceeding or seek relief in a court of law; to carry on a seek relief in a court of law; to carry on a lawsuitlawsuit

– Class-action suitClass-action suit: a lawsuit that is filed to : a lawsuit that is filed to seek damages for a large group of persons seek damages for a large group of persons in the same situationin the same situation

– An An amicus curiaeamicus curiae brief: filed by a third brief: filed by a third party (“friend of the court”) who is not party (“friend of the court”) who is not directly involved in the litigation but who directly involved in the litigation but who has an interest in the outcome of the case has an interest in the outcome of the case

– Procedural rulesProcedural rules Civil contemptCivil contempt: failing to comply with a : failing to comply with a

court’s order for the benefit of another partycourt’s order for the benefit of another party Criminal contemptCriminal contempt: obstructing : obstructing

administration of justice or bringing the administration of justice or bringing the court into disrespectcourt into disrespect

Parties and Procedures Parties and Procedures (continued)(continued)

Which Cases Reach Which Cases Reach the Supreme Court?the Supreme Court?

When two lower courts are in When two lower courts are in disagreement disagreement

When a lower court’s ruling When a lower court’s ruling conflicts with an existing conflicts with an existing Supreme Court ruling Supreme Court ruling

When a case has broad When a case has broad significance (as in significance (as in desegregation or abortion desegregation or abortion decisions)decisions)

When a state court has decided When a state court has decided a substantial federal question a substantial federal question

Which Cases Reach Which Cases Reach the Supreme Court? the Supreme Court?

(continued)(continued) When the highest state court When the highest state court

holds a federal law invalidholds a federal law invalid When the highest state court When the highest state court

upholds a state law that has upholds a state law that has been challenged as violating a been challenged as violating a federal lawfederal law

When a federal court holds an When a federal court holds an act of Congress unconstitutionalact of Congress unconstitutional

When the Solicitor General When the Solicitor General pressures the Court to hear a pressures the Court to hear a case case

The Supreme Court at WorkThe Supreme Court at Work– Granting petitions for review - review is granted Granting petitions for review - review is granted

by a writ ofby a writ of certiorari certiorari, issued when a minimum of , issued when a minimum of four justices agree that the case should be heard four justices agree that the case should be heard by the Supreme Court (the “rule of four”) by the Supreme Court (the “rule of four”)

– Deciding cases - both parties in the case submit Deciding cases - both parties in the case submit legal briefs and (usually) make oral argumentslegal briefs and (usually) make oral arguments

– Decisions and opinionsDecisions and opinions Affirmed, reversed, or remandedAffirmed, reversed, or remanded Unanimous opinionUnanimous opinion Majority opinionMajority opinion Concurring opinionConcurring opinion Dissenting opinionDissenting opinion

The Selection of Federal The Selection of Federal JudgesJudges

– Judicial appointmentsJudicial appointments Federal District Court judgeship Federal District Court judgeship

nominationsnominations Federal Courts of Appeals appointmentsFederal Courts of Appeals appointments Supreme Court appointmentsSupreme Court appointments The special role of the Chief JusticeThe special role of the Chief Justice

– Partisanship and judicial appointmentsPartisanship and judicial appointments– The Senate’s roleThe Senate’s role

Policy Making and the Policy Making and the CourtsCourts

– Judicial reviewJudicial review– Judicial activism and judicial restraintJudicial activism and judicial restraint– Strict versus broad constructionStrict versus broad construction– Ideology and the Rehnquist CourtIdeology and the Rehnquist Court

The Court shifted to the right, on the wholeThe Court shifted to the right, on the whole Federalism - the Rehnquist Court emphasized Federalism - the Rehnquist Court emphasized

states’ rightsstates’ rights Civil rights - mixed results under the Civil rights - mixed results under the

Rehnquist CourtRehnquist Court

– The The Roberts Court - too early to generalizeRoberts Court - too early to generalize

What Checks Our Courts?What Checks Our Courts?–Executive checksExecutive checks

The courts have no enforcement power; the The courts have no enforcement power; the president doespresident does

In rare cases a president refuses to implement a In rare cases a president refuses to implement a decisiondecision

More frequently, presidents use their More frequently, presidents use their power of appointment to check the power of appointment to check the judiciary judiciary

–Legislative checksLegislative checks Constitutional amendmentsConstitutional amendments Rewriting lawsRewriting laws

What Checks Our Courts? What Checks Our Courts? (continued)(continued)

–Public opinionPublic opinion–Judicial traditions and doctrines - to a certain Judicial traditions and doctrines - to a certain extent, the courts check themselves extent, the courts check themselves

Hypothetical and political questions - Hypothetical and political questions - refusing to adjudicate on either refusing to adjudicate on either

The impact of the lower courts - The impact of the lower courts - they cannot overturn a they cannot overturn a Supreme Court ruling, but can Supreme Court ruling, but can choose to apply it in choose to apply it in as limited a fashion as as limited a fashion as possiblepossible

Questions for Critical Questions for Critical Thinking Thinking

Why do laws exist? Who makes the law? Why do laws exist? Who makes the law? What happens if someone violates the What happens if someone violates the law? What if the law is not fair or just?law? What if the law is not fair or just?

Since they are not elected, should Since they are not elected, should Supreme Court judges be making policy? Supreme Court judges be making policy? Is it dangerous for those who do not face Is it dangerous for those who do not face the public scrutiny in any meaningful way the public scrutiny in any meaningful way to directly craft policy?to directly craft policy?

Questions for Critical Questions for Critical Thinking Thinking

What checks do the executive and the What checks do the executive and the legislature have on the judiciary? legislature have on the judiciary? Does the bureaucracy have any Does the bureaucracy have any checks? Does the public?checks? Does the public?