Seated left to right: Justice Clarence Thomas, Justice Antonin Scalia, Chief Justice John G. Roberts, Justice Anthony M. Kennedy, Justice Ruth Bader Ginsburg. Standing left to right: Justice Sonia Sotomayor, Justice Stephen G. Breyer, Justice Samuel Anthony Alito, Jr., Justice Elena Kagan.

The Politics of Selecting JudgesPrevious Backgrounds

Number Job Experience Most Recent Example33 Federal Judges Sonia Sotomayor (2009)22 Practicing Lawyers Lewis F. Powell (1971)18 State Court Judges Sandra Day O’Connor (1981)15 Other Elena Kagan, Solicitor General (2010) 8 Cabinet Members Arthur Goldberg, Labor Sec. (1962) 7 Senators Harold H. Burton, R-Oh (1945) 6 Attorney Generals Tom Clark (1949) 3 Governors Earl Warren, D-Ca (1953) 1 President (POTUS) William Howard Taft (1921)

The Politics of Appointing Federal Judges•Political Litmus Tests

•Senate: Advice and Consent

•The Role of Party, Race, Age, and Gender

•The Role of Ideology and Judicial Experience

•The Role of Judicial Philosophy and Law Degrees

Libe

ral

Conservative

Activist

Self-Restraint

ScaliaThomas

Breyer

KennedyGinsburg AlitoRobertsSotomayor

Inside The Supreme Court Building

The Federal Judicial System

Article 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

The Scope of Judicial Power• Judicial power is passive and reactive

• Hamilton called it “the least dangerous branch.”

• Power only to decide judicial disputes

• A Dual court system– Two court systems, state and federal, exist and

operate at the same time in the same geographic areas

Judicial Federalism: State & Federal Courts

• Cases must be ripe • Cases cannot be moot• Cases cannot be political

Understanding the Federal Judiciary• The Framers viewed the federal judiciary as an

important check against Congress and the president

• But 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

Alexander Hamilton

The Federal Court System

The Judiciary Act of 1789

Established the federal court system by dividing the country into federal judicial districts, creating district courts and courts of appeals

District Courts94 across the country and US territories• 89 throughout the states according to

population distribution• 1 each in territory

----D.C.----Puerto Rico----Guam----US Virgin Islands----Mariana Islands

Courts of Appeals (aka Circuit Courts)

13 across country

• 12 hear appeals from district courts

• 1 hears appeals from

Special courts like claims court, tax court, etc

Federal agencies like Office of Patents and Trademarks, Civil Service Commission, etc

The Eleven U.S. Circuit Courts of Appeal

Appointed by president

• Advisors recommend candidates

• Professional background

• Political/social views

• Collegiate career

Confirmed by Senate

•Judiciary committee holds hearings

•Professional background

•Political/social views

•Simple majority vote

Life terms• Death• Resignation/retirement • ImpeachmentBalance rights of individual vs. common good

Federal judges are appointed by the president and confirmed by the Senate, this is an example of which principle of government?

United States Supreme Court

Judicial Review

Power to overturn any Act of Congress or executive action the Court deems unconstitutional

Is it in the Constitution? Not specifically stated; however, the Constitution says the Court shall “interpret the law”

Established by Marbury v Madison (1803)Facts of the case: Marbury appointed to federal

judgeship by outgoing President John Adams. New President Thomas Jefferson tells Secretary of State Madison NOT to deliver letter of appointment (Marbury can’t take his new job)

• Marbury sued in SCOTUS citing right to do so in Federal Judiciary Act of 1789

• Justices considered both facts of case and law in question

SCOTUS issued opinion:Marbury was legally appointed as federal judge and Secretary of State Madison should have delivered the letter BUT the part of the Federal Judiciary Act of 1789 that said the USSC would hear this type of case is unconstitutional.

The Constitution lists specific types of cases that SCOTUS has original jurisdiction over. This was not one of them. SO, because that part of law was unconstitutional, Marbury shouldn’t have sued in SCOTUS nor do they have authority to make Madison deliver the letter

The Supreme Court & How it Operates

The Powers of the Chief Justice

Appointed 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

Which Cases Reach the Supreme Court?

The Supreme Court & How it OperatesThe Role of the Law Clerks The number of clerks has increased over time, leading to longer and more elaborate opinions. The clerks for the nine Supreme Court Justices play a key role in the process. They are chosen by each justice. Clerks do the initial screening of petitions. The clerks of the justices participate in a pool in which they divide up the cases and write a single memorandum about each case that is sent to the justices. There is debate over how much influence clerks have on Court decisions

The Supreme Court & How it Operates•The Solicitor General

•Amicus Curiae Briefs

•Oral Arguments

•Behind the Curtains: The Conference

On the federal level, the job of prosecution belongs to the

1. 94 U.S. Attorneys.2. the Attorney General.3. the Solicitor General

Justices are appointed for life terms

Why it matters!!• Conservative presidents = conservative justices

• Liberal presidents = liberal justices• Justices serve for years• Justices interpret the Constitution; set precedent• Those precedents affect all Americans

A day in the life . . .

Calendar

a. Term: first Monday in October – end of June

b. Sittings: 2-wk sessions when Justices hear cases then retire to decide opinions

Selecting cases

Original jurisdiction cases—must hear these

• State governments vs. state governments

• A Foreign representative is a party in a case

Appellate jurisdiction cases: Justices choose to hear these cases1. Must deal with a federal or constitutional issue 2. Must impact a majority of citizens

“Rule of Four”—four of the nine justices must agree to hear the individual case out of the 1000s of cases appealed to them.

Case is on the docket (a court’s schedule or calendar)– Briefs are submitted—written summary of each lawyer’s

side of the case– Justices study lower court proceedings and briefs

Oral arguments – Each side gets 30 minutes to argue – Justices may ask questions

Deliberationsa. Chief Justice summarizes case and main pointb. Group discussion, each presents views c. Justices vote—simple majority “wins”

The Opinions of the Court

Opinions issued Written statement explaining ruling and reasons for reaching that decision

Majority opinion: “winning” decision, sets precedent

Concurring opinion: agree with majority opinion but for different reasons

Dissenting opinion (minority opinion): disagree with majority opinion

JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?

JUDICIAL ACTIVISM: the Judicial branch is an equal partner with the Legislative and Executive and should be actively involved in interpreting and applying laws. Strong belief in judicial review

JUDICIAL RESTRAINT: the Jud branch should let the Leg and Exec branches set policy and only get involved if that policy is a flagrant violation of Constitution. Not a strong belief in judicial review.*NEITHER VIEW IS LIBERAL OR CONSERVATIVE*

Another Route to Supreme Court

District Court

Court of Appeals

Supreme CourtState Supreme

Court

State Court of Appeals

Superior Court

The Supreme Court & How it Operates•Opinions

a. Majorityb. Dissentingc. Concurring

•Circulating Drafts•Releasing Opinions to the Public•After the Court Decides

• Sometimes remands the case• Uncertain effect on individuals who are not

immediate parties to the suit• Decisions are sometimes ignored• Difficult to implement decisions requiring the

cooperation of large numbers of officials

Factors influencing the Court

1. Constitution—fundamental law of US

2. Precedent—are there past similar cases

3. Intent—of the Constitution and law(s) in question

4. Social values—what is the current view of most Americans (will of the people)

5. Personal judicial philosophy—to what extent should justices become involved in setting policy

What happens if the Supreme Court rules on a case that the majority of the country and lawmakers are against?

Do we just have to live with it?

Amend the Constitution!!!!!