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LongmanPoliticalScienceInteracti
ve
Magleby & LightGovernment by the People
Chapter 14The Judiciary:
The Balancing Branch
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The Supreme Court’s Shift
to the RightWhen Sandra Day O’Connor retired from the Supreme Court, a pivotal swing vote disappearedGeorge W. Bush’s appointments of Samuel Alito and John Roberts shifted the Court to the rightExample: 2007 decision to strike down as unconstitutional the use of race in assigning pupils to individual public schools
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Understanding the Federal Judiciary
The Framers viewed the federal judiciary as an important check against Congress and the presidentBut the judiciary has no influence over the “sword” or the “purse”Judicial power is ensured via:– Insulation from public opinion – Insulation from the rest of government
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Judicial Review
The power of a court to refuse to enforce a law or government regulation that, in the opinion of the judges, conflicts with the U.S. Constitution or, in a state court, the state constitutionOnly a constitutional amendment or a later Supreme Court can modify the Court’s decisions
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Adversary System
The Adversarial System
Judges serve as relatively passive
and detached referees who do not argue with attorneys or
challenge evidence
The Inquisitorial System
Judges take an active role in discovering and
evaluating evidence, will
question witnesses, and intervene as
deemed necessary
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Adversary System
Court of law is a neutral arena where two parties argue their differences
The federal government brings criminal cases
The federal judiciary decides the cases
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Types of Legal Disputes
Criminal Law– Crimes against the public order
– Liberty is at stake
– Right to government-provided attorneys
– Right to trial by jury
Civil law– Relations between individuals, and their legal rights
– Typically monetary punishment
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The Scope of Judicial Power
Judicial power is passive and reactive
Power only to decide justiciable disputes– Harm must have been done– Case must be ripe– Case cannot be moot– Case cannot be political
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Prosecuting Cases
U.S. Department of Justice– Led by attorney general– Assisted by solicitor general– Provides public defenders
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Types of Federal CourtsArticle III
(Constitutional)Versus
Article I (Legislative)Courts
Original Jurisdiction
The authority of a court to hear a case
“in the first instance”
Appellate Jurisdiction
The authority of a court to review
decisions made by lower courts
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Level One: District Courts
District courts hear nearly 258,000 civil cases and more than 68,000 criminal cases annually
Use both grand juries and petit juries
District judges are appointed by the president, subject to confirmation by the Senate, and hold office for life
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Level Two: Circuit Courts of
AppealsThe 11 U.S. Judicial Circuits
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Level Three:The Supreme Court
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Judicial Federalism: State and Federal Courts
Dual court system
Two court systems, state and federal, exist and operate at the same time
in the same geographic areas
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The Politics of Appointing
Federal JudgesNo Constitutional requirements
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Making the Initial Choices
Article II:--President has power to appoint--Senate has power of advice and consent Senatorial courtesy
Chief Justice John Roberts (far
right) congratulates Justice Samuel
A. Alito, Jr. at his swearing-in
ceremony as a new member of the
Supreme Court
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Senate Advice and Consent
Senate Confirmation Hearings
Except for Robert Bork, most judicial nominees have refused to answer questions that might reveal how they would decide a
case
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The Role of Party, Race, and Gender
Since FDR, only 10 percent of judicial appointments have gone to candidates of the opposition partyJimmy Carter brought increased diversity to the lower courtsRonald Reagan appointed fewer minorities, but was the first to appoint a woman to the Supreme CourtNearly 50 percent of Bill Clinton’s appointees were women and minoritiesRoughly 32 percent of George W. Bush’s nominees have been women and minorities
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The Role of Judicial Philosophy
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Reform of the Selection Process
The lengthy and embattled confirmation hearings of
Robert Bork (1987) and Clarence Thomas (1991) led
many to ask if the confirmation process was in need of reform
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How Do Cases Rise to the Supreme Court?
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The Eight Steps to Judgment
Reviewing appeals– Writ of certiorari– In forma pauperis– Docket
Granting the appealBriefing the case– Amicus curiae briefs
Holding the oral argument
Meeting in conferenceExplaining the decision– Opinions of the Court
– Dissenting opinion– Concurring opinion
Writing the opinionReleasing the opinion
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The Supreme Court Docket
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Influences on Supreme Court Decisions: The
Chief JusticeAppointed by the president upon confirmation by the Senate
Responsible for assigning judges to committees, responding to proposed legislation that affects the judiciary, and delivering the annual Report on the State of the Judiciary Former Chief Justice William H.
Rehnquist
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Influences on Supreme Court Decisions: Law
ClerksChosen by each justiceIncreased number over time, leading to longer and more elaborate opinionsDebate over how much influence on Court decisions
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Influences on Supreme Court Decisions: The Solicitor General
Represents the federal government before the Supreme CourtFiles amicus curiae briefs in cases in which the federal government is not a party
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Influences on Supreme Court Decisions:
Citizens and Interested PartiesAlso may file amicus curiae
briefsIncreasingly used to counter the positions of the solicitor general and the government
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After the Court Decides
Sometimes remands the caseUncertain effect on individuals who are not immediate parties to the suitDecisions are sometimes ignoredDifficult to implement decisions requiring the cooperation of large numbers of officials
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Limits on Judicial Action:
Adherence to Precedent
Stare DecisisThe rule of precedent, whereby a rule or
law contained in a judicial decision is commonly viewed as binding on
judges whenever the same question is presented
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Limits on Judicial Action:
Congress and the President
Changing the numbers
Changing the jurisdiction
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Debating the Proper Role of the Courts
An independent judiciary is a hallmark of a constitutional democracy and a free societyYet, judicial independence is often criticized when judges make unpopular decisions