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LO 3.1 11/17/2013

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AP AMERICAN GOVERNMENT

2 | 1

Unit Five

The Judiciary

Chapter 14: The Judiciary

� The Federal Court

System

� The Politics of

Appointing Judges

� How the Supreme

Court Makes

Decisions

� Judicial Power and

Its Limits

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Unit Learning Objectives

The Organization of Federal Courts5.1 Outline the structure of the federal court system.

The Politics of Appointing Judges5.2 Analyze the factors that play an important role in selecting judicial nominees.

The Jurisdiction of the Federal Judiciary5.3 Determine the basic constitutional powers of the federal judiciary.

How the Supreme Court Decides5.4 Trace the process by which Supreme Court decisions are reached, and assess

influences on this process.

Judicial Power and Its Limits5.5 Assess the role of the judiciary in a constitutional democracy and the limits on

judicial action.

Organization

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Code LawWritten legal Code covers entire system of law

Judges discover factsto apply appropriate code.

Legislature is final Court of Appeal

� Law gives general guidelines.

� Judges referee debate based on Precedentcases.

� A Supreme Court is the final court of Appeal.

The Organization of the Federal Judiciary5.1 Outline the structure of the federal judiciary.

Common Law

France, Germany, Italy, Brazil,

Mexico, Spain, Japan, ChinaUnited States, Canada, Australia,

India, South Africa

Which branch of government is given the power to establish lower federal courts?

The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.

Why do you think this is the case?

Article III

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District and Circuit (Appellate)Courts

Administrative Office of the United States Courts (January 1983).

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Article II, Section 2(The President) shall nominate, and by and

with the advice and consent of the Senate,

shall appoint ambassadors, other public

ministers and consuls, judges of the

Supreme Court, and all other officers of the

United States.

The Politics of Appointing Judges5.2 Analyze the factors that play an important role in selecting

judicial nominees.

Selecting Judges

Presidents seek judicial appointees who

share their political ideologies

Potential Nominees for federal courts are first recommended by the National Bar Association

‘Litmus test’ interviews

Creation of ‘short list’ of potential nominees

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Constitutional Interpretation

Strict Construction: judges feel bound by

the actual wording of the Constitution

most strict constructionists tend to be conservative Republicans

Activist: feel judges should look to the

underlying principles and intentions of the

founders

most activists tend to be liberal Democrats

Selection

Back row: Sotomayor, Breyer, Alito, Kagan

Front row: Thomas, Scalia, Chief Justice Roberts, Kennedy, Ginsburg.

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Current Supreme Court

Ginsberg (Clinton, 1993): very liberal

Sotomayor (Obama, 2009): consistently liberal

Breyer (Clinton, 1994): consistently liberal

Kagan (Obama, 2010): centrist but more likely to vote liberal

Kennedy (Reagan, 1988): the swing vote, but generally

conservative

Alito (Bush, 1990): consistently conservative

Roberts (W. Bush, 2005): consistently conservative

Scalia (Reagan, 1986): extremely conservative

Thomas (Bush, 1991): extremely conservative

The current court is considered conservative

Arguments Against Judicial Activism

Judges lack experience in public policy

or government management

Courts are not accountable to the public

because judges are not elected

Arguments for Judicial ActivismCourts should correct injustices when

other branches refuse to do so

Courts are the last resort for those

without the power or influence

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Selecting Judges

Tradition of Senatorial Courtesy

The short list is reviewed

by senators

Senators from the same

state may ‘blue slip’ the

nominee

Why do you think the President does this?

Is this process Constitutional?

What is the term of a Supreme Court justice?

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office

Why do you think this is their term?

Article III

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Jurisdiction

Civil LawA private party files the

lawsuit as the plaintiff.

Burden of proof is on the

Plaintiff

‘For the Plaintiff’ or ‘For

the Defendant’ by a

preponderance of the evidence

Remedy is

Compensation

• The state or the people

prosecute the case.

• Presumption of Innocence;

burden of proof on the state

• ‘Guilty or Not Guilty’

beyond a reasonable doubt

• Remedy is Punishment: Fines, Imprisonment, or

Execution

Criminal Law

The Jurisdiction of the Federal Judiciary5.3 Determine the basic constitutional powers of the federal

judiciary.

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Article IIIList three examples of cases that would fall under the judicial power of the Federal Courts:

The judicial power shall extend to all cases, in law and equity, arising under

this Constitution, the laws of the United States, and treaties made, or

which shall be made, under their authority;

--to all cases affecting ambassadors, other public ministers and consuls;--to

all cases of admiralty and maritime jurisdiction;-

-to controversies to which the United States shall be a party;

--to controversies between two or more states;--between a state and

citizens of another state;

--between citizens of different states;

--and between a state, or the citizens thereof, and foreign states, citizens

or subjects.

Federal Cases

Federal question cases: involving the

U.S. Constitution, federal law, the sea,

or treaties

The Constitution or Federal laws

Treaties

Ambassadors, other public ministers and consuls

Admiralty and maritime jurisdiction

The United States government

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Federal Cases

Diversity cases: involving different

states, or citizens of different states

Two or more states

A state and citizens of another state

Citizens of different states

citizens of the same state over property in a different state

a state or citizen and foreign states or citizens

What is “Original Jurisdiction”?

The ability and authority to hear and decide

cases for the first time based on hearing

testimony and viewing evidence

In contrast to hearing a case “on appeal”

after a verdict has been rendered.

Article III

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Article III, Section 2

Under what circumstances does the Supreme Court have “original jurisdiction”?

In all cases dealing with

ambassadors, other public ministers and consuls

a state government

In all the other cases

the Supreme Court shall have appellatejurisdiction

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Procedure

Term begins the first Monday in October

Court has four week

sessions:

“Sittings," two weeks for

hearing arguments

“Recesses," two weeks for

conferences and writing

opinions.

They hear as many as 24

cases each sitting.

In May and June, the

Justices announce their

decisions

How the Supreme Court Decides5.4 Trace the process by which Supreme Court decisions are

reached, and assess influences on this process.

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Writs of Certiorari

Requires agreement of four justices Significant Constitutional question

Conflicting decisions by circuit courts

Constitutional interpretation by a State court

7000 petitions, only around 100 granted

Most cases arrive by writ of cert

Standing to Sue

There must be a real controversy

Harm must be demonstrated

Actual

Financial

Personal

The Court will NEVER address

Political Questions

Sovereign immunity

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Expenses

In forma pauperis

Fee shifting

Class actions

Brief

Precedent!!!

Remedy

Amicus Curiae

‘Friend of the Court’

Oral Argument

Plaintiff

Defendant

Inquiry by Justices

Closing Arguments

Rebuttal

Procedure

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The Supreme Court in Action

Lawyers submit briefs that set forth the facts of the case, summarize the lower court decision, gives the argument of their side of the case citing appropriate precedent, and suggests remedy

Amicus Curiae briefs are submitted

Oral arguments are given by lawyers after briefs are submitted

Justices then question the attorneys

The Adversarial SystemTwo or more opposing parties gather evidence

Parties present their evidence and arguments to a judge or jury.

The judge acts as a referee on points of law.

The judge or jury determine both the verdict and the remedy.

The Inquisitorial SystemIn the INQUISITORIAL system, the presiding judge actively steers the

search for evidence and questions the witnesses

Attorneys play a more defensive role, suggesting arguments and

precedents and answering the judge’s questions.

The judge determines the verdict and the remedy.

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Goal of both is to find the truth.

The adversarial system

seeks truth by pitting parties against each other in the

hope competition will reveal it

the adversarial system places a premium on the

individual rights of the accused

The inquisitorial system

seeks the truth by questioning those most familiar with

the events in dispute

The inquisitorial systems places the rights of the

accused secondary to the search for truth.

Inquisitorial and Adversarial Systems

Inquisitorial and Adversarial Systems

Lower courts are Adversarial; the Supreme Court is

Inquisitorial.

Justices question and cross-examine the attorneys

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Court Opinions

Per curiam: brief and unsigned

Upheld

Overturned

Sent back for retrial

Opinion of the court: majority opinion

Concurring opinion: agrees with the

ruling of the majority opinion, but with

different reasoning

Dissenting opinion: minority opinion

Judicial review: the right of the federal courts to rule

on the constitutionality of laws and executive actions

It is the primary tool of the judicial branch in the

checks and balances system in the Constitution

Founders probably expected judicial review but did

not expect courts to play such a large role in policy-

making

But federal judiciary has evolved toward activism,

shaped by political, economic, and ideological forces

Judicial Power and Its Limits5.5 Assess the role of the judiciary in a constitutional

democracy and the limits on judicial action.

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“It is emphatically the

province and duty of

the judiciary to say

what the law is, and a

law repugnant to the

Constitution is void.”-John Marshall

Chief Justice of the Supreme Court,

1801-1835

Marbury v. Madison

Judicial Review

Congress has implied

powers under the

Elastic Clause

Federal law is

supreme over state

law

Judicial Review

McCulloch v. Maryland

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Checks on Judicial Power

Nomination, Confirmation and

impeachment

Congressional control of lower courts,

number of judges, and jurisdiction

Judges have no enforcement ability, must

rely on Executive branch

Congress can revise legislation, or propose

amending the Constitution

Rick Perry’sConstitutional Amendment

Proposal

18 YEAR TERMS FOR FEDERAL JUDGES

2/3rds VOTE OF CONGRESS TO OVERRIDE JUDICIAL DECISIONS

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Public Opinion and the Courts

Public confidence in the Supreme Court has varied but generally remained high overall

Amicus Curiae opinions give court a sense of public opinion

Defying public opinion may be dangerous to the legitimacy of the Supreme Court

Section 3.

Treason against the United States, shall consist only in

levying war against them, or in adhering to their enemies,

giving them aid and comfort. No person shall be convicted

of treason unless on the testimony of two witnesses to the

same overt act, or on confession in open court.

The Congress shall have power to declare the

punishment of treason, but no attainder of treason shall

work corruption of blood, or forfeiture except during the

life of the person attainted.

� What constitutes treason in this section 3?

� What is required to convict a person of treason?

� Why do you think Treason is the only specific crime that is

mentioned in the Constitution?

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