Continuing with institutions of government The Judiciary Continuing with institutions of government

Front Load Vocabulary Appellate jurisdiction -Original jurisdiction Burger court -Precedent Constitutional courts -Rehnquist court Criminal law -Senate confirmation Judicial activism -Special courts Judicial restraint -Stare decis Litigation -Warren court Marshall court -Writ of certiorari

Background Realizing a separate branch was needed to adjudicate legal issues, Founding Fathers set up a court system that had Supreme Court holding final power of constitution review. The judiciary, to many, is the most distant from the average citizen. Federal justices serve for life, so they are not directly responsible to the electorate.

Constitutional Review of Judiciary Basis of constitutional power found in Article III Judges are appointed by the president with the consent of the Senate and serve for life based on good behavior. Judicial power extends to issues dealing with common law, equity, civil law, criminal law, and public law.

Constitutional Review of Judiciary Cases are decided through original jurisdiction or appellate jurisdiction. Chief Justice of the Supreme Court presides over impeachment trials. Congress creates courts “inferior” to the Supreme Court.

Dual Court System Reflect shared power of the national and state governments State and federal courts are independent from each other, but state courts are linked by the appeals process Constitution assigns federal courts jurisdiction in cases such as: laws arising from Constitution, ambassadors, admiralty and maritime issues, cases involved in 2 or more states, or cases between citizens of different states State courts have jurisdiction deriving from state laws

Structure Constitution allows establishment of “inferior” courts or lower courts. 94 current district courts handle 80% of the federal cases brought to them. Each state has at least one federal judicial district. United States attorneys are appointed by the president and confirmed by the Senate. 13 courts of appeals (review district decisions before Supreme court)

Selection of Justices Executive and legislative branches are linked to process of selecting federal justices. Special interests such as American Bar Association give input Result is process that may become embroiled in political controversy

Selection of Justices President must get approval of Senate for all federal judgeships. The tradition of senatorial courtesy: prior approval of the senators from the state from which the judge comes from is also part of process Courtesy does not apply to Supreme Court nominations When Senate refuses to move forward on presidential nom, the president can make a recess appointment (nom bypasses Senate confirmation but only lasts for the remainder of the congressional session).

Short Essay Explain the relationship between the courts and Congress and the courts and the presidency. What is the relationship between these institutions in terms of judicial selection and policymaking?

Supreme Court Nominations Appear before the Senate Judiciary Committee, issues such as constitutional precedent, judicial activism, legal writings, and past judicial decisions come under scrutiny. Other issues such as feelings of interest groups, public opinion, media opinion, ethical and moral private actions are part of selection process.

Limited number of cases Minimum of 4 justices agree to review a case Supreme Court’s docket is a combination of appeals cases ranging from legality of death penalty to copyright infringement. Supreme Court receives thousands of cases to review, but only chooses 75 to 100 from lower courts to review. Critics claim that the limited number of cases accepted limits Court’s ability to make public policy.

Process of Writ of Certiorari 5 criteria for appeal: -If a court has made a decision that conflicts with precedent -If a court has come up with a new question -If one court of appeals has made a decision that conflicts with another -If there are inconsistencies between courts of different states -If there is a split decision in the court of appeals

Writ continued If writ is granted, the lower court sends the Supreme Court the transcript of the case. Lawyers argue for the petitioner and respondent and submit specified length briefs outlining their positions. Prepare for oral arguments (often last 30 minutes) Determination is made when majority of justices have an opinion Chief Justice assigned a justice to write the majority decision

Effect on Public Policy Supreme Court has had significant impact on public policy (Marbury v. Madison, Miranda decision). John Marshall has been given credit for setting the course of the young Supreme Court. He found legal rationale that the Judiciary Act of 1789 was unconstitutional (it did not meet the requirements outlined in the Constitution related to original jurisdiction).

Effect on Public Policy The principle of judicial review was established due to Marbury case, and Supreme Court began making crucial policy decisions (Gibbons v. Ogden, McCulloch v. Maryland.). Roger Taney Court made critical rulings that some feel contributed to Civil War (Dred Scott). During Reconstruction, Chief Justice Chase overturned some of the statutes passed by radical Republicans.

Effect on Public Policy During Progressive Era and Great Depression, Court dealt with highly charged economic issues. Trust-busting, child labor laws, right of women to work the same hours as men were brought before Court. Landmark case of Swift v. United States came under provisions of the Sherman Antitrust Act.

Effect on Public Policy Most activist Court in history, the Warren Court, determined future of the civil rights movement. Chief Justice Warren convinced split court that it was essential to overturn separate but equal Plessy v. Ferguson. When Warren retired (1969) Nixon appointed conservative Warren Burger

Effect on Public Policy Burger Court ordered bussing to end segregation, upheld affirmative action programs, limited aspects of Miranda but upheld rights of accused. Most remembered for Roe v. Wade decision. William Rehnquist became nation’s 17th Chief Justice (made up most conservative Court in history).

Effect on Public Policy Rehnquist court began to reverse many of the earlier Warren and Burger rulings. Future of Supreme Curt will depend to a large extent on the new coalitions formed and on the outcome of presidential elections.

Judicial Philosophy All Supreme Court nominees are asked to describe their judicial philosophy. Critics of judicial activism say it’s not the Court’s repsonsibility to set policy in areas such as abortion, affirmative action, educational policy, and state criminal law. Feel civil liberty decisions have created a society without a moral fiber.

Judicial Philosophy Fact that judges are political appointees, are not directly accountable to the electorate, and hold life terms makes an activist court even more unacceptable (to some). Proponents of an activist court point to the responsibility of the justices to protect the rights of the accused and minority interests. Say need Supreme Court to be a watchdog and fulfill its consituttional responsibility of maintaining checks/balances.

Judicial Philosophy Alexander Hamilton wrote in Federalist No. 78 “Laws are dead letters without courts to expound and define their true meaning and operation.” Critics of judicial restraint feel that the interests of the government are not realized by a court that refuses to make crucial decisions. Suggest that the federal system will be weakened by a court that allows state laws that may conflict with the Constitution go unchallenged.