Unit 4Judicial Branch

IV. Institutions of National Government: The Congress, the Presidency, theBureaucracy, and the Federal Courts

35–45%

A. The major formal and informal institutional arrangements of power

B. Relationships among these four institutions and varying balances of power

C. Linkages between institutions and the following:

1. Public opinion and voters

2.Interest groups

3. Political parties

4. The media

5. State and local governments

Discuss this quote: • “…a free court is a court where a judge is at

liberty to express his views and exercise his own discretion…without any coercion or pressure from anyone. That is liberty, and that is what America stands for.” Federal Judge Waties Waring,

Federal Court SystemI. Characteristics

A. Adversarial1. Plaintiff brings a charge2. Defendant is the one being charges

B. Passive1. Federal judges are restrained by the Constitution to deciding

ACTUAL disputes or cases2. depends on others to take the initiative.

C. Jurisdiction1. court’s authority to hear a case2. types of jurisdiction

2. types of jurisdiction

a. Original jurisdiction – courts in which a case is 1st heard

b. Appellate jurisdiction – courts that hear cases brought to them on appeal from lower courts

c. exclusive jurisdiction – cases that can be heard only in certain courts

d. concurrent jurisdiction – cases that can be heard in either federal or state court

D. A complex dual court system

1. 2 separate court systems2. Each state has its own system of courts.

over 97% of all criminal cases are heard in state and local courts3. Federal judiciary system spans the entire country.

Two Levels of Law(Dual Court System)

State Courts Federal CourtsDeal with state lawsThree levels

Trial courts Appellate courts (aka courts of

appeal) State supreme court (aka court of

final appeal)

Cases may be appealed to the USSC if a federal or constitutional issue is involved

Original jurisdiction over federal issueso Federal lawso Constitutional issueso Resident of one state v resident

of another stateo Treatieso Maritime issueso Foreign govt is involvedo US govt is involved

Three levels

a. Trial court (aka District Court)

b. Appellate court (aka Court of Appeals)

c. Supreme Court (aka Court of Final Appeal)

The Federal Court System

• A. The Constitutiono 1. Supreme Court is the only court mentioned in the constitution.o 2. Congress has the power to create all other courts

• B. The Judiciary Act of 1789o 1. established 3 tiered structure of federal courtso Set the size of the Supreme Court at 6 justices; it was later expanded

to 9 in 1869

C. District Courts• 1. Currently 94 district courts staffed by about

700 judges.o Each state has at least 1

• 2. District courts handle 300,000+ cases a year or about 80% of the federal caseload

• 3. Most cases end in a plea bargaino Only about 2% go to trial

D. Courts of Appeals• 1. appellate courts authorized to review district

court decisionso Empowered to rule on decisions of federal regulatory agencies such as

the FCC

• Do not hold trials or hear testimony

The Supreme Court• America’s “court of last resort.”• Reviews cases from the US courts of appeals and

state supreme courts• Final arbiter of the Constitution

o Decisions establish precedents that are binding on the entire nation

• Marbury vs. Madisono Established judicial reviewo Judicial review: the power of the Supreme Court to declare federal

legislation invalid if it violates the Constitution

Structure of the Courts

http://www.supremecourtpress.com/chance_of_success.html

Back: Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan Front: Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg

III. The Selection of Judges

A. The Lower Courts1. Appointed by the president and

confirmed by a majority vote of the Senate

2. Senatorial courtesy: unwritten tradition – the Senate will not confirm nominations for lower court positions that are opposed by a senator of the president’s own party from the state in which the nominee is to serve (does not apply to SCOTUS)

Robert Bork and Anita Hill

• Nominated to the Supreme Court in 1987

• Views of Constitution seemed Controversial

• Rejected by Senate

Robert Bork and Anita Hill• Nominated to the

Supreme Court in 1987

• As solicitor general, fired Watergate special prosecutor

• Views of Constitution seemed Controversial

• Rejected by Senate

• Clarence Thomas nominated to SC in 1991

• Hill was an associate of Thomas; accused him of sexual harassment in confirmation hearings

B. The Supreme Court1. Nomination criteria

a. Competence – credentials including prior judicial or governmental experience

b. Ideology & policy preference – expected to share the president’s policy preferences

i. Example: FDR appointed justices who supported New Deal programs

ii. Reagan appointed justices sympathetic to conservative goals

B. The Supreme Court (cont’d)

c. Race, ethnicity and gender

2. confirmation process

d. names of possible nominees sent to FBI for background check & to ABA for professional rating

e. Interest groups increasingly important

i. Public protest

ii. Appearances on TV & radio talk shows

iii. Emails to senators

f. Senate Judiciary committee holds public hearing on each nominee

i. Recommendation to the full Senate

IV. How the Supreme Court works

1. Selecting cases2. Original jurisdiction involving:

a. 2 or more states b. US and a state government c. US and foreign ambassadors and diplomats

3. Writs of certiorari a. Order by the court directing a lower court to

send up the record in a case for review b. Enables the SCOTUS to control its own

caseload 4. Rule of Four

a. Clerks screen approximately 9,000 petitionsb. Weekly conference where justices discuss

petitionsc. 4/9 justices must agree to hear a case

B. Filing Briefs1. Each party files a detailed written statement

arguing one side of a case cite relevant facts, legal principles, precedents

2. amicus curiae (“friend of the court”) briefsa. controversial cases attract a large numberb. attempt to lobby the court

C. Listening to Oral Arguments3. Open to the public 4. 30 minutes to present case

D. Discussion and voting1. Closed meeting held on Fridays2. Chief Justice presides• Chief Justice Roberts is known for

encouraging discussionE. Writing opinions1. Formal opinions present issues, establish

precedents, set guidelines for lower courts2. Types of opinions

a. Majority b. concurring c. minority or dissenting

V. Factors influencing SCOTUS

decisionsA. Precedent

1. Stare decisis – “let the decision stand” 2. Examples – Marbury v. Madison established judicial

review applied to Congress and the President3. Exceptions – court can overturn previous decisionso Plessy v. Ferguson overturned in Brown v. Board

of Ed of Topeka

B. Judicial Philosophy1. Judicial Restraint2. Judicial Activism

Activism vs. Restraint

• Judicial restraint: judges' own philosophies or policy preferences should not be injected into the law o whenever reasonably possible construe the law so as to avoid second

guessing the policy decisions made by other governmental institutions o based on the concept that judges have no popular mandate to act as

policy makers and should defer to the decisions of the elected "political" branches

o so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states.

• Judicial activism: seeks to determine what is "just," not necessarily what is intended by lawo the U.S. Constitution is a living, dynamic document which must

necessarily be interpreted to meet the needs of  modern times.

C. Public Opinion1. Constitution insulated the SCOTUS from direct

political pressures a. appointed for life terms subject to good behavior b. salaries cannot be reduced c. certiorari process lets it set own agenda d. public has limited access to proceedings

2. BUT aware and sensitive to public opiniona. Appointment and confirmation process b. Congress and state legislatures can amend the

Constitution c. Congress can change SCOTUS’ appellate jurisdictiond. Congress can change the number of justices e. Justices can be impeached

AP exam lookout• Judicial restraint and judicial activism are

philosophies that appear on MOST AP US GOPO exams

• Be able to explain how the SCOTUS is insulated from public opinion AND

• The factors that keep the court from straying too far from public opinion