The JudiciaryThe Judiciary

Constitutional Underpinnings and Evolution

Constitutional Underpinnings and Evolution

Basis of Power is Found in Article III• Supreme Court• Congress given power to create lower courts

National Supremacy and Slavery• Marbury (1803), McCulloch (1819), Dred Scot (1857)

Government and the Economy

Government and Political Liberty

The Revival of State Sovereignty

Judicial OverviewJudicial Overview

Judicial Review – the power of courts to declare laws unconstitutional

Judicial Restraint Approach – judges should decide cases strictly on the basis of the language of the Constitution

Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances

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The Federal Court SystemThe Federal Court System

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Federal District Courts and Circuit Courts of Appeals

Federal District Courts and Circuit Courts of Appeals

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The Dual Court SystemThe Dual Court System Judge made law:

• Common law based initially on the prevailing custom and eventually on legal precedent. • stare decisis: to stand on decided cases.

Statutory law• Civil law• Criminal law• Public law

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Dual Court SystemsDual Court Systems

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The Federal Court SystemThe Federal Court System Basic Judicial Requirements

• The federal courts have jurisdiction in cases that meet one of the following criteria: • The case involves a federal question• The case involves diversity of citizenship

• Standing to Sue• Must have suffered injury or threat of harm• Justiciable controversy

• How cases reach the court• Writ of Certiorari

– “rule of four”– Only 1 or 2 percent of cases taken

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Which Cases Reach the Supreme Court?

Which Cases Reach the Supreme Court?

Original Jurisdiction• Dispute between the United States and a state• Dispute between two states• Disputes between foreign ambassadors and diplomats• A state and an individual from another state

Appellate Jurisdiction• When two lower courts are in disagreement, or a lower court’s ruling

conflicts with an existing Supreme Court ruling • When a case has broad significance • When the highest state court holds a federal law invalid, or upholds a

state law that has been challenged as violating a federal law• When a federal court holds an act of Congress unconstitutional

Selecting JudgesSelecting Judges Appointment by the president with advice and

consent of senate• Lifetime appointments on good behavior

Senatorial Courtesy• Gives heavy weight to preferences of senators from

state in which judge will serve

The “Litmus Test”• test of ideological purity• sharp drop in the percentage of nominees confirmed

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Confirmation Rates for Nominees to the U.S. Court of

Appeals (1947–2005)

Confirmation Rates for Nominees to the U.S. Court of

Appeals (1947–2005)

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Public Confidence in the Court (1974 – 2006)

Public Confidence in the Court (1974 – 2006)

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The Supreme Court in Action

The Supreme Court in Action

Solicitor General

Petitioner vs. Respondent

Brief

Amicus curiae

Per curiam opinion

Opinion of the court

Concurring opinion

Dissenting opinion

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What Checks Our Courts?What Checks Our Courts? Executive Checks

• Appointments• Execution of law

Legislative Checks• Constitutional amendments• Revision of laws

Public Opinion