The Judiciary

Term of Office

Life

Roots of the Federal Judiciary

• not much time spent on Article III• Framers saw little threat of tyranny by judiciary• life tenure for federal judges• checks and balances• Basic Power of Judicial Branch Constitution

was silent on judicial review• judicial review: power of the courts to review

acts of other branches of government and the states

The Judiciary Act of 1789

• Congress spent entire second half of its first session deliberating Judiciary Act

• Judiciary Act of 1789: Established the basic three-tiered structure of the federal court system

The Marshall Court: Marbury v. Madison (1803) and Judicial Review

• Authority of the Court was unsettled question• Marbury v. Madison (1803): Case in which the

Supreme Court first asserted the power of judicial review by finding that the congressional statute extending the Court's original jurisdiction was unconstitutional

• brilliant move: initially denied power to the Court, but established implied power of judicial review

The American Legal System

• Dual system: federal courts and state courts

• Pyramid: trial courts, appellate courts, court of last resort

• trial court: Court of original jurisdiction where cases begin

• appellate court: Court that generally reviews only findings of law made by lower courts

Jurisdiction

• jurisdiction: Authority vested in a particular court to hear and decide the issues on any particular case

• original jurisdiction: The jurisdiction of courts that hear a case first, usually in a trial. These courts determine the facts of a case

• appellate jurisdiction: The power vested in particular courts to review and/or revise the decision of a lower court

Criminal and Civil Law

• criminal law: Codes of behavior related to the protection of property and individual safety

• Society is the victim, so the government prosecutes on behalf of injured party

• civil law: Codes of behavior related to business and contractual relationships between groups and individuals

• No threat to society, so injured party must take action against other party

• Four elements in each case: plaintiff, defendant, judge, jury

The Federal Court System

• district courts, courts of appeals and the Supreme Court

• constitutional courts: Federal courts specifically created by the U.S.Constitution or by Congress pursuant to its authority in Article III.

• legislative courts: Courts established by Congress for specialized purposes, such as the Court of Military Appeals

District Courts

• federal trial courts of original jurisdiction

• 94 federal district courts

• hear three types of cases– federal government is a party– federal question based on a claim under the

Constitution, a treaty or a federal statute– civil suits in which citizens from different

states and amount more than $75,000

The Courts of Appeals

• intermediate appellate courts in the federal system• no original jurisdiction• no automatic right of appeal after decision• brief: A document containing the legal written arguments

in a case filed with a court by a party prior to a hearing or trial

• precedent: A prior judicial decision that serves as a rule for settling subsequent cases of a similar nature

• stare decisis: In court rulings, a reliance on past decisions or precedents to formulate decisions in new cases

The Supreme Court

• reviews cases from U.S. courts of appeals and state supreme courts

• final interpreter of the U.S. Constitution

• eight associate justices and one chief justice (since 1869)

• Constitution silent on number of justices

How Federal Court Judges Are Selected

• political process• nominated by President and confirmed by the

U.S. Senate• put philosophical stamp on court system• from nominating President’s party• senatorial courtesy: Process by which

presidents generally defer selection of district court judges to the choice of senators of their own party who represent the state where the vacancy occurs

Who Are Federal Judges?

• most have held political office

• increasing number have judicial experience

Appointments to the U.S. Supreme Court

• importance means greater opposition to nominations

Nomination Criteria

• Competence– at least some judicial or governmental experience

• Ideology or Policy Preferences– nominees should share President’s policy preferences

• Rewards– friends and party members

• Pursuit of Political Support from Various Groups– campaign promises (ex. Reagan, Sandra Day O’Connor)

• Religion– Protestant, Catholic, Jewish

• Race, Ethnicity, and Gender– Few minorities or women have served

The Supreme Court Confirmation Process

• Investigation– FBI background check– Senate Judiciary Committee investigation

• Lobbying By Interest Groups– greater involvement of interest groups in the process

• The Senate Judiciary Committee Hearings and Senate Vote– Committee recommends to full Senate– Simple majority vote

The Supreme Court Today

• widespread lack of interest in the court system

• Court tradition of privacy and tradition

• No televised proceedings

Deciding to Hear a Case

• 2007-2008 9,600 cases filed, 75 heard, 74 decisions– important issues of law or substantial federal question

• Writs of Certiorari and the Rule of Four– writ of certiorari: A request for the Court to order up

the records from a lower court to review the case– Rule of Four: At least four justices of the Supreme

Court must vote to consider a case before it can be heard

• The Role of Clerks– first pass of petitions– young and ideological

How Does a Case Survive the Process?

• The Federal Government– Court accepts 70-80% of cases in which U.S. government is

petitioning party– solicitor general: The fourth-ranking member of the Department

of Justice, responsible for handling all appeals on behalf of the U.S. government to the Supreme Court.

– amicus curiae: "Friend of the court"; amici may file briefs or even appear to argue their interests orally before the court

• Conflict Among the Courts of Appeals– Court desires consistency in the system

• Interest Group Participation– the more briefs filed, the better the chance the Court will take

case

Hearing and Deciding the Case

• Oral Arguments– steeped in tradition, 10 AM start time

• The Conference and the Vote– closed door session, conference vote

• Writing Opinions– written opinion gives legal reasoning– serves as precedent

Judicial Philosophy, Original Intent, and Ideology

• judicial restraint: (a philosophy that) courts should allow the decisions of other branches of government to stand, even when they offend a judge's own sense of principles

• strict constructionist: An approach to constitutional interpretation that emphasizes the Framers' original intentions

• judicial activism: A philosophy of judicial decision making that argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty

Models of Judicial Decision Making

• Behavioral Characteristics– social background of justices affect decisions

• The Attitudinal Model– policy preferences (party, liberal versus conservative)

• The Strategic Model– chance of loss, needs of the court

• Public Opinion– could be swayed by public opinion on some issues

Toward Reform: Power, Policy Making, and the Court

• Policy Making– declare federal laws unconstitutional– overrule itself

• Implementing Court Decisions– courts must rely on other units of government

to carry out their decisions– judicial implementation: How and whether

judicial decision are translated into actual public policies affecting more than the immediate parties to a lawsuit