Unit VII Notes - THE FEDERAL COURTS
THE NATURE OF THE JUDICIAL SYSTEM
The United States has an adversarial judicial system – the two parties bring their conflict before a neutral judge; each competes to prove their point of view is correct, and the belief is that justice will emerge from the struggle. In most cases, however, there is no trial because the issue is settled out of court.
There are two types of cases: criminal law cases and civil law cases.
Criminal law cases – the government charges that an individual has violated a specific law. The offense may harm an individual or society at large.
Civil law cases – a dispute between two parties (one of whom may be the government).
Also, don’t forget, there is federal law and state law. The vast majority of all criminal and civil cases begin and end in state court.
The Participants in the Judicial System
Litigants - each case is a dispute between a plaintiff (who brings the charges or makes the accusation) and the defendant (who is the one being charged or accused). Sometimes the plaintiff is the government bringing the charge against an individual or a corporation. Cases are identifies with the name of the plaintiff first and the defendant second. The task of the judge is to apply the law to the case, determining whether the plaintiff or the defendant is legally correct. In many (but not all) cases a jury (group of citizens – usually 12) is responsible for determining the success of the case.
Not everyone can challenge the law –litigants must have standing to sue–they must have a serious interest in the case. Generally this is determined by whether they have sustained or are in immediate danger of sustaining a direct and substantial injury from another party or an action of the government. Except in cases pertaining to government support for religion, merely being a taxpayer and being opposed to a law does not provide a person with standing to sue or challenge a law in court.
In recent years the concept of standing to sue has been broadened to include class action suits. A class action suit permits a small number of people to sue on behalf of all other people similarly situated. This is often done in cases seeking to end discriminatory practices, environmental protection, etc.
The cases that may be brought to court must also be justiciable disputes issues that are capable of being settled by legal methods. Thus one could not go to court to determine whether or not Congress should fund a program like SDI (Strategic Defense Initiative) this is not a matter that can be resolved in court.
Interest Groups – because the courts are often able to shape policy, interest groups will often seek out litigants whose cases seem particularly strong. A good example of interest groups that has been successful at this policy is the NAACP (Brown v. Board) and the ACLU (ACLU v. Reno, etc)
Attorneys – law is one of the fastest growing professions in the United States growing from about 100,000 in 1960 to over 750,000 today (one for every 360 Americans).
THE STRUCTURE OF THE JUDICIAL SYSTEM
Article III of the Constitution defines the judicial system, but it is rather vague. It specifies that there will be a Supreme Court (but does not say how many justices will serve), and states that Congress can create the inferior courts.
The Judiciary Act of 1789 led to the creation of the constitutional courts. (see p. 412 for diagram of the US court system) Later Congress also established the legislative courts for specialized purposes. These courts include the Court of Military Appeals, the Court of Claims, the Court of International Trade, and the Tax Court. The judges on these courts have a fixed term of office and lack the protections of the constitutional court judges (who serve for life and can only be removed for cause).
Original jurisdiction - the jurisdiction of courts that hear a case for the first time (most often the trial court). These are the courts that determine the facts of a case. More than 90% of court cases begin and end in the court of original jurisdiction.
Appellate jurisdiction – these courts hear cases brought to them on appeal from a lower court. They do not review the factual record, only the legal issues involved. At the state level, the appellate process normally ends with the state’s highest court of appeals (usually called the state supreme court). Appeals from a state supreme court can be taken only to the US Supreme Court.
District Courts - the entry point for most federal cases in one of the 91 district courts. There is at least one in every state, one in Washington D.C. and Puerto Rico (there are 3 very similar territorial courts for Guam, Northern Mariana, and the Virgin Islands). The district courts are courts of original jurisdiction only – they do not hear any appeals. They are the only federal courts that empanel juries and hold trials. In most cases the 649 judges assigned to these courts hear cases alone. In a few circumstances a panel of three judges will decide the case. Each court has between 2 & 28 judges depending on the size of its territory. The jurisdiction of the district courts include federal crimes, civil suits under federal law, civil suits between citizens of different states, bankruptcy cases, review of the actions of some federal agencies, maritime law, and supervision of naturalization cases.
Keep in mind that about 98% of all criminal cases are heard on the state or local level. And most federal cases are settled by a plea bargain –they don’t go to trial. Also only about 5% of civil cases actually go to trial as well. Most are settled out of court.
Federal judges are assisted in their work by clerks, bailiffs, stenographers, court reporters, probation officers, and US marshals (who provide protection and serve writs). Federal magistrates (who serve an 8 year term) issue arrest warrants, determine whether or not to hold arrested persons for action by a grand jury, and set bail). They also (with the consent of both parties) hear petty cases and motions.
Each court has a U.S. attorney who is nominated by the president and confirmed by the Senate (they serve at the discretion of the president and do not have lifetime appointments). These attorneys and their staff prosecute violations of federal law & represent the US government in civil cases.
Of the few cases that actually go to trial, a large number are appealed by the losers.
Courts of Appeal – they have appellate jurisdiction and review cases appealed from the district courts (unless the case involves a decision in which the district court rules the law unconstitutional – these go directly to the Supreme Court). The Courts of appeals also can review orders from the regulatory commissions.
The United States is divided into 12 judicial circuits (see map p. 414). Texas, Louisiana, and Mississippi make up the 5th circuit. Each circuit serves at least 2 states and has between 6 and 28 permanent circuit judges (179 in all) depending on the amount of work in the circuit. Each court normally hears cases in panels consisting of three judges, but they may also sit en banc (with all judges present) in very important cases. Decisions are made by a majority vote of the judges.
There is also a special appeals court called the U.S. Court of Appeals for the Federal Circuit established in 1982. It is composed of 12 judges to hear specialized cases such as those regarding patent cases, claims against the US, and international trade.
The focus of the appeals courts is correcting errors of procedure and law that occurred in the original proceedings. They do not hear testimony and do not hold trials. Their decisions become precedent for all the courts and agencies within their jurisdiction.
The Supreme Court
The highest court in the land. It resolves conflicts between states and insures a uniformity in the interpretation of federal laws. The Supreme Court has nine justices – the Chief Justice and 8 associate justices. The number nine was set in 1869. Prior to that it varied between 5 to 10. It was 10 as late as 1866 when the Congress of Radical Reconstruction reduced it to 8 so Andrew Johnson would not be able to make any appointments. Then they increased it to 9 when Grant was elected. FDR tried to increase the number to 15 in order to gain better control, but Congress refused to go along.
The Supreme Court has both original and appellate jurisdiction.
Original jurisdiction – cases involving representatives of foreign governments & certain cases in which the state is a party (for example California & Arizona argued over control of the water in the Colorado River). The Court generally handles only a few cases of original jurisdiction each year – usually only one or two per year.
Appellate jurisdiction – appeals from lower courts of appeals or directly from a federal district court if that court declared an act of Congress unconstitutional.
The Supreme Court may also hear appeals from the highest court of a state if it involves a federal law or constitutional issue. Here the court may rule only on any federal issue involved –not a state issue. For example if you claim that a state violated your due process by conducting an illegal search and you were found guilty. The Supreme Court can only rule on the question of your rights being vaulted not on your actual guilt or innocence. The court can order you to receive a new trial without the use of the illegally seized evidence.
THE POLITICS OF JUDICIAL SELECTION
The Lower Courts
Article II states that the president shall appoint federal judges with the consent of the Senate, but the Constitution gives no particular qualifications to be a judge. A position on a federal bench is considered highly desirable. Judges in federal court serve “during good behavior” – or for life. It is also unconstitutional to lower their salary during their term of service. This permits judges to be free of public or political pressure. They can make the right decision even when they know it will be unpopular – they do not have to stand for reelection. It also means that presidents can leave their mark on the judiciary long after their terms are over.
Presidents take many things into consideration when making appointments to the federal bench:
1.Party affiliation – presidents favor judges from their own party at least 80% of the time.
2.Judicial philosophy – presidents try to appoint judges that share their own point of view, especially when it comes to interpreting the Constitution. Because they are appointed for life, a president’s appointments can have influence well past his actual term of office.
3.Senatorial Courtesy – a president is expected to (but not required to, it is an unwritten tradition that began with Washington) submit the name of an appointment to the Senators from that candidate’s state. If either or both senators oppose the candidate, the president usually withdraws the name and nominates a more acceptable candidate. It is also customary for the opposing senator to state some general reason for his opposition. The remaining senators then honor his opposition by refusing to vote for the nominee. The practice of senatorial courtesy is limited to the judges of the district courts and other trial courts (where these judges would have the greatest impact); it is not applied to nominations to the Supreme Court or other courts of appeals (unless the nominee is opposed by a senator of the president’s party from the state of the nominees residence, but the president generally has more control over nominees to the appeals courts.). Typically when there is a vacancy in a district court the senator from that state who is in the same party will recommend one or more people to the attorney general. Thus in some cases, the Senate actually ends up making the appointment rather than the president.
4.Recommendations – Sitting judges may also recommend or evaluate candidates, and prospective candidates might even seek out nominations by alerting the relevant parties that they desire the job.
5.The background of the federal judge – almost all have legal training & many have served in state courts. They must also pass a strict FBI investigation. Until recently few women or minorities were appointed to federal judgeships
The Supreme Court
No Constitutional qualifications – even citizenship is not required.
The Chief Justice is paid $175,400 and the associates are paid $167,900 per year. Justices are appointed for life, but may be removed through impeachment. Only one justice has been impeached (Samuel Chase in 1804 because of his participation in partisan politics) but he was found not guilty.
Presidents have to wait for a vacancy to occur among the nine before he can make an appointment. On average this happens every 2 years, but FDR had to wait five years before making an appointment & Pres. Carter never made an appointment – there were only 2 vacancies between 1972 and 1984. In the case of a Supreme Justice, presidents may nominate a sitting justice for elevation (but he still must pass senate muster) or – more often – nominate someone new.
Background of the Justices - we have had over 100 men and women serve as justices; most have law degrees & a great deal of legal experience; most have been federal or state judges or held positions such as attorney general. President Taft served on the Court after his administration. Most are over 50 years of age. Most have been from upper socioeconomic backgrounds. Two African Americans and two women have served – the 1st woman was appointed by Reagan, the 1st African American by LBJ. There have not really been enough minorities or women appointed to see if it makes a difference in court decisions.
Typically justices have held high administrative or judicial positions. Most have had some experience as judges at the appellate level. Many have had surprisingly little judicial experience, but that skill is not as important for the unique work of the Supreme Court.
Appointing Justices – justices are appointed by the president with the consent of the Senate. Approval is generally granted but not automatic. Even George Washington had a nominee fail, as did Ronald Reagan (Robert Bork). In the 19th century over 25% of nominees failed, but in the 20th c. only 7 have failed (2 from Nixon, 2 from Reagan, 2 from LBJ, and 1 from Hoover). Presidents who face a divided govt. in the senate are more likely to face opposition. In generally the Senate does not refuse nominees based on their ideology. Rejection usually involves questions of ethics or legal competence in order to be seen as valid.
Presidents generally chose from their own party (only 13 of 108 justices have been of a different party than the president who nominated them & even then their ideology was similar to the president’s – i.e. a conservative Democrat nominated by a Republican president) & try to select someone with a similar philosophy. Many presidents, however, have found it is not always easy to predict how a justice will rule once he is appointed. Pres. Eisenhower appointed a man he thought would be very conservative, but Justice Earl Warren ended up as one of the most liberal and activist justices in years.
Presidents seek to pack the courts with justices who share their views. They will look at the writings of the potential nominee, speak to people they know as well as the nominee. It is not considered proper to question the nominee about upcoming cases, it is appropriate to ask them about their broader judicial philosophy.
The president generally relies on the Department of Justice to screen candidates.
Presidents usually only consult with the senator from the nominees state after they have made their selection. Typically the senator will not oppose at this point.
It is also common for the American Bar Association to rate the candidates on a scale from “exceptionally well qualified” to “not qualified”. This rating, however, is not as influential as it once was.
Geographical balance use to play an important role in nominations but no longer does.
Interest groups and unions will also try to influence the president and Senate in their choice of nominee.
The justices can also influence the president in his choice of nominees; they may write letters of recommendation, or lobby the president on behalf of a potential candidate. The nominee, however, generally keeps a low profile
Sitting justices also play politics and often refuse to retire during the term of a president with whom they disagree.
THE COURTS AS POLICYMAKERS
The courts are a very misunderstood institution.
the law -----the judge----the law
Declaratory Theory states that the judge will “declare” what the law is. Ideally the law is identical before and after the judge. The judge’s job is to be neutral & unbiased. They are to decide cases based on the law as it is written by Congress.