Lecture #11: The Judicial Branch August 2, 2017

The Supreme Court The Supreme Court’s term runs from the first Monday in October through the end of June.

Inside The Supreme Court Building

The Supreme Court Justices Sotomayor 2009-B. Obama; Breyer 1994-Clinton; Alito 2006-G.W. Bush; Kagan 2010-Obama Thomas 1990-G.H.W. Bush; Scalia 1986-Reagan; Roberts 2005-G.W. Bush; Kennedy 1988-Reagan; Ginsburg 1993-Clinton As of 2010, Salaries for Chief Justice is $223,500 and $213,900 for Associate Justices Back Row: Sonia Sotomayor , Stephen Breyer, Samuel A. Alito, Elena Kagan, Front Row: Clarence Thomas, Antonin Scalia, John G. Roberts, Jr., Anthony Kennedy, Ruth Bader Ginsburg

The Scope of Judicial Power Judicial power is passive and reactive Hamilton called it “the least dangerous branch.” Power only to decide judicial disputes A Dual court system Two court systems, state and federal, exist and operate at the same time in the same geographic areas Cases must be ripe Cases cannot be moot Cases cannot be political Judicial Federalism: State & Federal Courts

Understanding the Federal Judiciary The Framers viewed the federal judiciary as an important check against Congress and the president But the judiciary has no influence over the “sword” or the “purse” Judicial power is ensured via: Insulation from public opinion Insulation from the rest of government Alexander Hamilton

Supreme Court Jurisdiction

Structure of the Court System

Federal Courts What kinds of cases can a federal court hear? The court must have jurisdiction: “The power, right, and authority to interpret the law.” Two types of federal-court jurisdiction: Federal-question jurisdiction. Diversity jurisdiction.

Federal Question Jurisdiction Case involves: Federal statute or law. U.S. constitution. Examples: Johnson vs California Legitimacy of laws ( violent video games) Furman vs. Georgia

Diversity Jurisdiction Federal courts can hear questions of state law, IF: The parties are citizens of different states, AND The value of the case EXCEEDS $75,000 (the “amount in controversy” requirement).

Federal Court - Levels

U.S. District Courts 91 U.S. district courts. Arranged geographically; at least one within each state. But NOT connected with state government.

U.S. District Courts Sample name: United States District Court for the Middle District of Florida. Parties: Plaintiff (initiates action). Defendant (person being sued). One judge presides over the case. Case may be tried to a jury or may be a “bench trial.”

Federal Court - Levels

U.S. Courts of Appeals Party who loses in district court has an AUTOMATIC right to an appeal. 13 U.S. Courts of Appeals. 12 are geographic. One is a specialty court (Federal Circuit). Sample name: United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”).

U.S. Courts of Appeals Parties: Appellant Appellee Three judges (“the panel”) hear legal arguments only. No jury. No new evidence/no witnesses.

U.S. Courts of Appeals Types of relief: Affirms = agrees with decision in trial court. Reverses = disagrees with decision in trial court. Remands = sends back to trial court for further proceedings (probably with some instructions). What happens to the party who loses in the appellate court?

U.S. Supreme Court Loser in U.S. Court of Appeals may file a Petition for Writ of Certiorari. Supreme Court does not have to hear the case (“cert. denied”). If it does: Nine JUSTICES hear the appeal.

State Courts Each state has its own, independent judicial system. Cannot be bound by the federal courts. One state system cannot bind another court system. Structurally, each is a bit different. But, most have three levels.

Trial Courts State courts can hear any kind of case, unless a federal statute states otherwise. Limited v. general jurisdiction. Geographic: Usually by county. One judge. Parties = Plaintiff and defendant.

Intermediate Appellate Courts Loser has an appeal as a right. Three judges hear case. Parties = appellant and appellee.

State Supreme Courts May or may not have to hear the case. Justices (odd number).

Judicial Branch Article III of the Constitution established the judicial branch of government with the creation of the Supreme Court. This court is the highest court in the country and vested with the judicial powers of the government. There are lower Federal courts but they were not enumerated in the Constitution. Congress deemed them necessary and established them using power granted from the Constitution.

Judicial Review Courts decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution (aka judicial review) Judicial Review is this process that the judiciary uses to provide checks and balances on the legislative and executive branches.

Judicial Review Judicial review is not an enumerated power given to the courts but it is an implied power. In Marbury v. Madison (1803), the courts' power of judicial review was clearly articulated.

Basic Characteristics The judicial branch hears cases that challenge or require interpretation of the legislation passed by Congress and signed by the President. Consists of the Supreme Court and the lower federal courts. Appointees to the federal bench serve for life or until they voluntarily resign or retire.

Basics The Supreme Court is the most visible of all the federal courts. The number of Justices is determined by Congress rather than the Constitution, and since 1869, the Court has been composed of one Chief Justice and eight Associate Justices. Justices are nominated by the President and confirmed by the Senate.

Current Supreme Court John G. Roberts, Jr., Chief Justice John Paul Stevens Neil Gorsuch Anthony Kennedy David Souter Clarence Thomas Ruth Bader Ginsberg Stephen Breyer Samuel Alito Jr.

Justice Taney (Dred Scott) Justice Holmes (1st amendment) Other Justices of some fame: Justice Taney (Dred Scott) Justice Holmes (1st amendment) Justice O’Connor (1st woman) Justice Marshall (1st African-American) Justice Rehnquist ( limiting executive privilege) Justice Warren (rights of the accused and Brown) Justice Roberts (present Chief Justice)

Judicial Tenure The Role of Politics in Selecting Judges There are no Constitutional requirements The process of judicial selection is a highly partisan and political process Because of the power wielded by the Supreme Court, presidents take a personal interest in selecting appointees Judge Samuel A. Alito prior to the start of his second day of questioning before the Senate Judiciary Committee Judicial Tenure Interpreted to mean a life term The Constitution stipulates that federal judges “shall hold their Offices during good Behavior” Judges cannot be removed for any reason by a President Congress cannot impeach judges because they don’t like their decisions

The Politics of Selecting Judges Previous Backgrounds Number Job Experience Most Recent Example 33 Federal Judges Sonia Sotomayor (2009) 22 Practicing Lawyers Lewis F. Powell (1971) 18 State Court Judges Sandra Day O’Connor (1981) 15 Other Elena Kagan, Solicitor General (2010) 8 Cabinet Members Arthur Goldberg, Labor Sec. (1962) 7 Senators Harold H. Burton, R-Oh (1945) 6 Attorney Generals Tom Clark (1949) 3 Governors Earl Warren, D-Ca (1953) 1 President (POTUS) William Howard Taft (1921)

The Politics of Appointing Federal Judges Political Litmus Tests Senate: Advice and Consent The Role of Party, Race, Age, and Gender The Role of Ideology and Judicial Experience The Role of Judicial Philosophy and Law Degrees What is the Litmus Test - In political terms, a person’s stand on a key issue that determines whether he or she will be appointed to public office or supported in electoral campaigns Most judicial nominees have refused to answer questions that might reveal how they would decide a case. Activist Breyer Scalia Thomas Liberal Conservative Ginsburg Roberts Alito Sotomayor Kennedy Self-Restraint

The Process of Judicial Selection Submission of an appointee’s name to the Senate Judiciary Committee Hearings are held by the Senate Judiciary Committee Nomination goes to the full Senate, where there is debate and, if no filibuster, a vote Senate Confirmation Filibustering Court Nominees Constitution requires only a majority vote of the senate to “advise and consent” to a presidential nominee 60 votes required to end a filibuster Interpreted to mean a life term

The Politics of Appointing Federal Judges Do Judges Make Law? Adherence to Precedent - Stare Decisis The rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented Judicial Longevity and Presidential Tenure Reform of the Selection Process Changing the Numbers Changing the Jurisdiction

First woman appointed to the Supreme Court, by Ronald Reagan Party Affiliation of District Judges and Courts of Appeal Judges Appointed by Presidents President Party Appointees from Same Party Roosevelt Democrat 97% Truman Democrat 92 Eisenhower Republican 95 Kennedy Democrat 92 Johnson Democrat 96 Nixon Republican 93 Ford Republican 81 Carter Democrat 90 Reagan Republican 94 G.H.W. Bush Republican 89 Clinton Democrat 88 G.W. Bush Republican 93 First woman appointed to the Supreme Court, by Ronald Reagan

Interpreting the Law Primary function of courts in general and Supreme Court in particular Mechanical jurisprudence—the view of judging Laws often ambiguous

Legal Interpretation Judges base decisions on precedents, laws Explain interpretations by invoking generally accepted legal standards or yardsticks Can sometimes explain decisions by the literal meaning of the words of text in question

Legal Interpretation May refer to intent of the framers Previous court cases/precedents May base decisions on social or political needs **All enhance the credibility of decisions

Supreme Court Process Chooses cases—no independent data, relies on briefs Oral arguments heard over seven 2-week sessions Conference Days—Private meetings/deliberation

Supreme Court Process At meeting, they speak in descending order of seniority. Take tentative vote in ascending order of seniority Assign opinion writing—drafted and circulated to fellow justices for comment

Supreme Court Opinions Per Curiam: Unsigned decisions of the Court that states the facts of the case and the ruling Majority Opinion: written opinion of the majority stating reasoning for the decision

Supreme Court Opinions 3. Concurring Opinion: Can be authored by a justice who agrees with the outcome of a case but for different reasons; may go on record with own opinion; can influence future opinions; can lessen impact of majority opinion

Supreme Court Opinions Dissenting Opinion: minority opinions; written by justices who dissent; may influence future decisions; can undermine majority opinion Plurality opinion: in the absence of a majority opinion presents the reasoning of most of the justices who side with the winning party