The Judiciary

Introduction: The founders almost certainly saw the judiciary as an important check on the legislative and executive branches, but not as a policymaking body.

The court system is a cornerstone of our democracy. Members of Congress, state governors, and the President must always worry about elections and popular opinion. As a result, they may lose sight of the need to preserve our values, and they sometimes set hasty or unjust policies. But the courts serve as watchdog of the other branches of government.

Stare decisis – let the decision stand. Common law – a collection of judge-made laws that is based on decisions made by previous judges. Precedence – the practice of deciding new cases with reference to former decisions. Stare decisis – let the decision stand.

Judicial Review: Judicial review – allows the courts to rule on the constitutionality of laws and actions, giving them the power to strike down or reinforce policy, not just to apply and interpret it. It is a concept implied by but not mentioned in the Constitution.

The principle of judicial review originated in the Supreme Court decision of Marbury v. Madison (1803).

Structure of the Federal Court: There are 13 courts of appeals, one of each of the 12 judicial circuits (regions) and a U.S. Court of Appeals for patents, copyrights, and trademarks. Constitutional Courts – exercise the judicial powers of Article III. There are 94 district courts.

Participants in the Judicial System: Litigants: - Defendant – the person charged Plaintiff – the person bringing charges

Lawyers: Public defenders – lawyers provided for people who cannot afford personal lawyers. Gideon v. Wainwright (1964), determined that all accused persons in state or federal criminal trials should be supplied with a lawyer, free if necessary. Plea bargain – when a defendant agrees to plead guilty to avoid have to stand trial. Solicitor general – represents the government to the Supreme Court.

The Judges: The judge, must draw upon his or her background and beliefs to guide decision making. The judge makes the final decision of innocence or guilt and pronounces the sentence if the person is found guilty.

Types of Cases: Criminal law – cases where an individual is charged with violating a specific law.

Civil law – cases where one person accuses another of violating his or her rights.

Standing to sue – a serious interest in the case, determined by whether or not they have personally suffered injury or are in danger of being injured directly.

Class action suits – cases where a small number of people represent all other people in similarly situated. Brown v. Board of Education of Topeka (1954), Linda Brown represented all black students in public schools systems.

Selection of Judges: The Constitution is silent on their qualifications, other than justices should exhibit “good behavior.”

The Nomination Process; The Constitution gives the responsibility for nominating federal judges and justices to the President. President’s rely on recommendations from the: Department of Justice, The FBI, members of Congress, sitting judges, and the American Bar Association.

The Lower Courts: Senatorial courtesy – the Senate will not confirm a district court judge if the senior senator from the state where the court is located objects, nor a court of appeals judge not approved by the senators from the judge’s home state.

Senate Confirmation; Senate Judiciary Committee – interviews the nominee before he or she goes before the entire Senate. If the Judiciary Committee does not recommend the candidate, the Senate usually rejects the nomination. By 2001, 28 of the 146 nominations to be Supreme Court justices have not been confirmed.

Party and personal loyalties; About 90% of judicial appointments since Franklin Roosevelt have gone to member of the President’s party. Presidents still appoint friends and loyal supporters to federal judgeships.

Presidents usually appoint judges that seem to have a similar political ideology to their own. However, Presidents have no way of predicting how justices will rule on issues. President Eisenhower (Republican) appointed Earl Warren and William Brennan, the most liberal justices in recent history.

Acceptability to the Senate; If a nominee runs into trouble in the confirmation process, they often withdraw their name from consideration. President Reagan, in 1988, nominated Douglas Ginsburg who was criticized for using marijuana while a law professor at Harvard.

Race and gender; Before 1967 all justices were white males. The percentage of women and minority federal judges appointed has increased in recent years. Thurgood Marshall – first black Supreme Court justice, appointed by Lyndon Johnson (1967). Sandra Day O’Connor – first female Supreme Court justice, appointed by Ronald Reagan (1981).

Selection of Cases and Rulings: Writ of certiorari – meaning “made more certain”. Most cases come to the Supreme court this way. Rule of four – if four justices agree to hear a case the case is scheduled for a hearing. The Court has control of its agenda and decides which cases it wants to consider.

Briefs and Opinions; Briefs – are legal arguments and relevant precedents (previous court decisions) presented by either side. Briefs of amici curiae (friends of the court) – are legal arguments presented by individuals, organizations, or government agencies that have an interest in the case and a point of view to express.

Opinion – a statement of the legal reasoning behind the Courts’ decision. Majority opinion – the official opinion of the court. The senior justice in the majority assigns the task of writing it. Dissenting opinion – opinion of those justices who do not agree with the Courts decision.

The End!