To Accompany Comprehensive, Alternate, and Texas Editions American Government: Roots and Reform, 10th edition Karen O’Connor and Larry J. Sabato  Pearson Education, 2009  Chapter 10 The Judiciary

Roots of the Federal Judiciary  Hamilton called it “the least dangerous branch.”  Little on the judiciary in the constitution.  Creates high Court, Congress establishes others.  Judges have life tenure with good behavior.  Congress can alter the Court’s jurisdiction.jurisdiction  Constitution is silent on judicial review.

Judiciary Act of 1789  Established three-tiered federal court system.court system  Can appeal through the system.  Federal district courts at the bottom.  Courts of appeals in the middle.  U.S. Supreme Court at the top.  Court had little power, few wanted to serve.

The Marshall Court  Chief Justice John Marshall gave Court prestige.  Discontinued practice of seriatim.  Established power over states in McCulloch v Maryland (1819).

Marbury v. Madison  Established Judicial Review in Marbury v. Madison (1803).  Implied from the Supremacy Clause in Article 1  President Jefferson refused to give Marbury his appointment as Justice of the Peace so he sued  Court ruled that Jefferson was supposed to give him his commission but court did not have jurisdiction to offer the verdict  Led to need for Judicial Review

Table Supreme Court Jurisdiction  Back

American Legal System  A court must have jurisdiction to hear a case.  Jurisdiction can be original or appellate.  Cases can be criminal or civil.  Most courts are constitutional courts.  Specialized legislative courts may also be created.

Figure American Court System  Back

District Courts  Trial courts of original jurisdiction.  94 Districts- At least one court per state.  Cases involve federal government or question.  Also citizens from two states if over $75,000.  Cases decided by a single judge (possibly with jury).

Figure Federal Court System  Back

Courts of Appeals  Appellate courts with no original jurisdiction.  Cases decided by three-judge panels.  Cases are appeals from district courts or agencies.  Correct errors of procedure or law.  Submit a brief to have a case heard.  Decisions set a precedent for only that circuit.  Judges may abide by stare decisis.

Supreme Court  Appellate and original jurisdiction.  Ensures uniform interpretation of laws.  Maintains national supremacy.  Nine justices hear decisions en banc.

Table Supreme Court Knowledge  Back

Selecting Federal Judges  President makes appointments.President makes appointments  Use of senatorial courtesy.  Competence; use of ABA ratings.Competence  Ideology or policy preferences.  Rewards or political support.  Religion, race, ethnicity, and gender.

Table Presidential Impact  Back

AV- Who Is Appointed?  Back

Table District Court Appointees  Back

Supreme Court Confirmation  List of potential nominees sent to FBI and ABA.  Candidates investigated and rated.  Interest groups mobilize lobbying efforts.Interest groups mobilize lobbying efforts  Senate holds committee hearings.  Full Senate votes on nominee.

Table Interest Group Participation  Back

Table The Supreme Court  Back

Deciding to Hear a Case  Works hard for privacy and decorum.privacy  Receives many more cases than it can hear.Receives many more cases than it can hear  Interested parties file a writ of certiorari.  Court decides to hear case using Rule of Four.  Clerks play key role throughout process.Clerks

Figure Supreme Court Process  Back

Figure Supreme Court Caseload  Back

Table What Do Clerks Do?  Back

Factors Influencing Review  Solicitor general asking for review.  Solicitor general files amicus brief.  Conflict among the courts of appeals.  Case presents civil rights or liberties question.  Case involves policy preferences of the justices.  Interest group participation.Interest group participation

Hearing and Deciding the Case  Amicus briefs may be submitted beforehand.  Oral arguments generally last one hour.  Solicitor general may also appear.  Oral argument provides chance to ask questions.  Meet in closed conference to discuss and vote.  Opinion written and circulated.  Concurring or dissenting opinions may also be filed.

Table Amicus Curiae Briefs  Back

Judicial Decision Making  Judicial activism versus judicial restraint.  Loose or strict construction of the constitution?  Behavioral, attitudinal, and strategic models.  Role of public opinion.public opinion

Table Role of Public Opinion  Back

Judicial Policy Making  All judges make policy.  Court can declare laws unconstitutional.  Court can overrule itself.  Judicial implementation can be a challenge.

Marbury v. Madison 1803  Chief Justice John Marshall ruled: 1. The Constitution is the Supreme Law of the Land 2. If there is a conflict between the Constitution and any other law, Constitution rules 3. The Judicial Branch has a duty to uphold the Constitution  This ruling established Judicial Review

McCullouch vs. Maryland  Federal Power  1819  Ruled that in a conflict between national and state power, the national government is supreme. (Affirmed the Supremacy Clause of the Constitution)

Gibbons vs. Ogden  Federal Power  1824  Ruled that Congress has the sole authority to regulate commerce

Plessy vs. Ferguson / Brown vs. Board of Education  Civil Rights  1896/1954  Brown v Board of Ed overturned Plessy v Ferguson ruling that African Americans could be provided “separate but equal” facilities; began school integration.

Roe vs. Wade  Civil Rights  1973  Legalized a woman’s right to an abortion under certain circumstances.

Dred Scott vs. Sanford  Civil Rights  1857  Ruled that enslaved persons were property, not citizens, and thus had no rights under the Constitution.

Schenck vs. United States  First Amendment Rights  1919  Concluded that a defendant did not have a First Amendment right to express freedom of speech against the draft during World War I.  “Clear and Present Danger” Tests

Tinker vs. Des Moines  First Amendment Rights  1969  Expanded freedom of speech in schools to include students wearing black armbands to protest the Vietnam War.

Engel vs. Vitale  First Amendment Rights  1962  Ruled that a public school starting the day with a prayer violates the Establishment Clause of the First Amendment.

NY Times vs. U.S. (Nixon)  First Amendment Rights  1971  Ruled that the press (newspapers, TV, radio, filmmakers, etc) could not be restricted by the government except in extreme cases of national security.

Gideon vs. Wainwright  Rights of the Accused  1963  Ruled that a person accused of a major crime had the right to legal counsel (a lawyer) during a trial and that it will be provided by the government if they cannot afford it.

Miranda vs. Arizona  Rights of the Accused  1966  Ruled that at the time of arrest, suspects cannot be questioned until informed of their rights.