Chapter 16: The Judiciary
I. The Judicial Branch
A. THEN-
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B. NOW-
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C. Newfound Powers-
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D. SCOTUS as a Political Issue
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E. “Blue Slips”
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II. Judicial Review
A. Judicial Review- The power of the judicial branch of a government to decide if the acts of the legislative or executive branches violate the constitution
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B. Judicial Restrain Approach-
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C. Activist Approach)- The belief the Supreme Court should play an active role in shaping natural policies.
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D. Strict Constructionist Approach- The belief that the Supreme Court should avoid taking the initiative on social and political questions.
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*E. Capital Punishment
*III. Traditional Role of Courts -
*A. Articles of Confederation and State Supremacy-
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*B. Statutory Law-
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*C. Common Law-
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*D. Article III (Pocket Constitution)-
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IV. Development of the Courts
A. Traditional Understanding-
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B. Federalist #78 – the courts were designed to be an intermediate body between the people and the legislature, in order, among other things to keep the letter within the limits assigned to their authority
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C. Powers of the Early Court
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D. Marbury v. Madison (1803) (p. 443 Box)-
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E. McCulloch v. Maryland (1819)-p. 444
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F. Other Landmark Cases (p. 444)-
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V. Supreme Court Through History
A. National Supremacy and Slavery-
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3. Gibbons V. Ogden established a broad interstate commerce definition
4. Robert Taney was appointed Chief Justice by Andrew Jackson in 1836 because of his States’ Rights stance
5. Dred Scot V. Sandford
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B. Government and the Economy- From the end of the Civil War up to the New Deal, the dominant issue in the United States was the economy and who regulated commerce
1. Using the 14th Amendment:
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C. Government and Political Liberty- After 1936, the Supreme Court stopped imposing any serious restrictions on state or federal power to regulate the economy
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D. Revival of State Sovereignty- For an extended period of time, the Court allowed Congress to pass about any law they wanted extending the definition if interstate commerce broadly
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VI. The Structure of the Federal Courts
A. Article III- Judicial Power of the United States shall be vested in the Supreme Court and in such inferior courts as Congress may establish.
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B. Federal District Courts- created in 1789 to be trial courts
1. Composition- there are 94 districts in the U.S.; each state has at least 1
a. There are more than 550 judges who preside over the district courts
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C. Courts of Appeal (Appellate Courts) -Created in 1891 to ease workload of U.S. Supreme Court
1. 13 Courts of Appeal in U.S.
2. Typically, a panel of three judges hears appeals and decisions occur in 1 of 3 ways
a. uphold original decision
b. reverse that decision
c. send case back to lower court to be heard again
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VII. Selecting Lower Court Judges
A. Party Affiliation- Presidents typically appoint judges from their own political party
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B. Ideology
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C. Blue Slips/Senatorial Courtesy
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3. Litmus tests have eroded senatorial courtesy
D. Litmus Test - A test of ideological purity in selecting judges
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VIII. Jurisdiction of the Federal Courts
A. Dual Court System-state courts have jurisdiction over cases involving state laws while federal courts deal with federal law
1. Jurisdiction- The authority of a court to hear certain kinds of cases.
2. Two factors determine the jurisdiction of federal courts.
a. Subject matter and parties involved.
B. Subject Matter The federal government deals with cases involving United States law; treaties with foreign nations, interpretation of the Constitution, and maritime law
1. Civil Law-
2. Criminal Law-
3. Constitutional Law- relates to the meaning and application of the U.S. Constitution
a. Typically decides the limit of federal law or power
B. Parties Involved-
1. Ambassadors or other representatives of foreign governments 2. Two or more state governments
3. The U.S. government or one of its offices or agencies 4. Citizen of different states
5. A state and a citizen of a different state
6. Citizens of the same state claiming lands under grants in different states
7. a state or its citizens and a foreign country or its citizens
D. Concurrent Jurisdiction- when both state and federal courts have jurisdiction.
1. If someone robs a federally insured bank (FDIC) they have broken federal and state laws
2. Prosecutors usually try to send the case to the court that will give the harsher penalty
a. sometimes they will be tried in both federal and state courts
3. In civil cases, if the person being sued wants it in a federal court, it must be heard there
a. defense attorney will look at the judges involved and which court their client has a better chance of victory
E. Original Jurisdiction- The authority of a court to first hear a case.
1. Trial court- Typically the first court to hear the case
a. District Courts and other lower courts, justice court
F. Appellate Jurisdiction- Those cases heard on appeal
1. If a party loses a case, they may appeal to a higher court
2. In a criminal case, only the defense may appeal
3. Most states have an Appellate and original jurisdiction
*G. Supreme Court-
1. Original Jurisdiction- Only two types of cases may be initiated in the Supreme Court and they occur fewer than 5 times a year
a. Case involving representatives of foreign countries
b. Certain cases in which state is a party
1. Colorado and Arizona disputing between rights to the Colorado River
2. Appellate Jurisdiction- Cases heard on appeal from lower courts or state courts
a. Appeals may only come from state courts if people violated a federal law or the Constitution
b. More than 5,000 cases are appealed to the Supreme Court each year from which the court hears around 400 and grants full hearing to around 150
IX. Getting to Court
A. Costs- In theory, the courts are supposed the great equalizer treating everyone equal and allowing access to the courts equally
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B. in forma pauperis- a petition filed by a poor person to be heard in court as a pauper, free of charge.
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C. Gideon vs. Wainwright (1963)- Established the right to counsel or court appointed cases
1. Gideon was charged with breaking into a pool hall with the intent to commit a crime- a felony
2. He was too poor to afford an attorney and requested a court appointed attorney but was denied
3. Appealed his sentence based upon the right to a fair trial
4. The Supreme Court heard the case and sided with Gideon
5. Justice Hugo Black wrote the decision and said that the right to counsel was considered “fundamental and essential to a fair trial”
D. Interest Groups- If the matter is not a criminal trial and an individual cannot afford a lawyer, interest groups representing a wide spectrum of causes are sometimes willing to take up the cause
1. The ACLU often represents those people whose causes represent an issue of speech or rights
a. The NRA will likely represent an individual regarding a 2nd Amendment issue
2. Interest groups do more than pay the legal expenses, they organize the case, choose the legal strategy, and mobilize legal allies
E. Fee Shifting- Enables the plaintiff to collect the legal costs from the defendant if the defendant loses in certain kinds of cases
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F. Standing- Refers to who is entitled to bring a case
1. A judge or justice may not seek out an issue to decide upon but must wait for a person to bring the issue to the courts
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3. Litigants- People engaged in a lawsuit
G. Sovereign Immunity- A doctrine that a citizen cannot sue the government without its consent
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H. Class Action Suits- A case brought into court by a person on behalf of not only himself or herself but all other persons in similar circumstances
1. Brown v. Topeka Board of Education- desegregation
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X. The Supreme Court
A. Justices- 9 justices; 1 chief justice and 8 associate justices
1. Congress sets the number-
a. FDR’s court packing scheme
2. Salaries cannot be decreased during life term
3. Serve for life upon “good behavior”
B. Duties- main duty of justices is to hear and rule on cases
1. Three tasks
a. decide which cases to hear
b. decided the case
c. explain the decision- opinion- sets precedent
C. Background- not required to have law degree, but all do and most did
1. Almost all have had some legal background and many have held various positions in law or government including law professors, members of Congress, leading attorneys, and state judges
a. Most come from Ivy League schools and appellate court experience
2. Until recently, almost all judges were white, male, and Protestant
a. John Jay- 1st Supreme Court Judge
b. Sandra Day O’Connor- 1st Female
c. Thurgood Marshall- 1st African American
d. Sonia Sotomayor-1st Hispanic
3. Religious Seats-
D. Current Composition
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E. Appointment- Article I. Section 2: a president upon the advice and consent of the Senate may appoint judges.
1. sets no particular qualifications; do not even have to have a law degree
2. 25% of nominees were rejected in 19th century
a. % today depends on who is in the white house and who controls the senate
b. begins in the judiciary committee
2. Political considerations- Presidents prefer those that represent their views
a. the views of some justices have been a surprise
1. Harry Truman- Ton Clark “He hasn’t made one right decision I can think of”
3. Justice Department Consultation w/ the attorney general plays a role
a. many Presidents have been lawyers so they know judges
4. American Bar Association- Rates candidates
5. Interest Groups- many presidents take into consideration the views of the Interest group that got them elected- Christian coalition, labor
a. Obama’s nominees will probably be pro-gun control, pro-choice, liberal, and a minority
XI. Bringing Cases to the Court
A. Appeals- More than 5,000 cases are appealed to the Supreme Court each year from which the court hears around 400 and grants full hearing to around 150
1. Appeals may only come from state courts if people violated a federal law or the Constitution
a. Alleged criminal claims his 14th Amendment was violated during a search
B. Writ of Certiorari- An order from the court to a lower court to send up the records on a case for review (Certiorari is a Latin word meaning roughly; “made more certain”
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C. Rule of Four/Selecting Cases- Determines how much work the court will have during a term
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D. Dilemma-
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E. Workload & Law Clerks-
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2. Law Clerks- In 1882 Justice Horace Gray hired the first law clerk
a. They provide an integral role today enabling the justices to concentrate on their pressing duties
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XII. The Supreme Court in Action
A. Submitting Briefs- After the court accepts the case, the lawyer for each side submit a brief
1. brief- a written statement setting forth the legal arguments, relevant facts, and precedents supporting one side of the case
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B. amicus curiae “friend of the court”- Parties not directly involved but who have an interest in the outcome may also submit a brief
1. Allan Bakke
a. fifty-eight amicus briefs were filed
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*C. Oral Argument-after briefs are filed, each side is asked to present an oral argument before the court.
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D. Conference-every Friday, the justices meet to discuss the cases they have heard in a secret conference
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E. Opinions-states the facts of the case, announces the court’s ruling, and explains its reasoning in its decision.
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2. Four Kinds
a. Unanimous
b. Majority
c. Concurring-one with more justices agree with the conclusion but for different reasons
d. Dissenting.
XIII. The Power to Make Policy
A. Precedent- A model onto which to base later decisions or actions
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B. Using Judicial Review-
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C. stare decisis: “let the decision stand”
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D. Overruling or reversing its early decisions
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E. Political Question
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F. Remedy-judicial order setting forth what must be done to correct a situation that a judge believes to be wrong.
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XIV. Views of Judicial Activism
A. Last Resort- Those who support judicial activism believe it is necessary to correct injustices done by the other two branches or when they refuse to do so
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B. Criticisms-
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C. Reasons for Activism-
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D. Legislation and the Courts
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XV. Checks on Judicial Power
A. Restraints-
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B. Congress and the Courts- Congress has a number of ways of checking the judiciary
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C. Jurisdiction- One of the most powerful potential sources of Congressional power of the courts is deciding the jurisdictions of the lower courts and the appellate jurisdiction of the Supreme Court
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D. Public Opinion and the Courts-
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E. How We Compare
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XVI. Legal Principles
A. Equal Justice Under the Law- The goal of the American Court System to treat everyone alike regardless of; wealth, social status, ethnic group, gender, race, age, sexual orientation
1. Justice is blind and everyone is entitled to the full protection of the law.
2. 5th-8th Amendments- trial by jury, cruel and unusual punishment
3. Death penalty
B. Due Process- the law must be applied in a fair manner
1. 5th and 14th Amendments
a. Self-incrimination, double jeopardy, fair hearing Eminent Domain (rights of the accused)