The Judiciary Ch 14

Article 3-Section 1 The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The Federal Court System

Legislative Courts-Article 1 Courts Legislative courts are known as Article I courts because they  are created pursuant to the authority given to Congress in Ar ticle I, Section 8,Clause 9, . That section empowers Congress  "To constitute Tribunals inferior to the Supreme Court."  Examples….

Marbury v Madison (1804)

Picking federal judges

Selection of Judges Appointed by President, confirmed by Senate, serve for a life term Senior Senator can issue a blue slip President considers experience, political ideology, party and personal loyalties, and ethnicity and gender. Interest groups weigh in Senate Judiciary Committee holds hearings Highly partisan and political process

Judicial politics 1985-Robert Bork and the “Borking” process 1990-Clarence Thomas and Anita Hill More recently… Judicial Filibusters and the Nuclear option

To “Bork” In March 2002, the Oxford English Dictionary added an entry for the verb bork as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."

The Judicial Process Generally, federal lawsuits start out at the district level in a federal court. Most are civil, not criminal, cases involving legal issues that fall within the jurisdiction of the federal government, not state government Oliver and Linda Brown-Plaintiffs Brown v Board of Education Topeka

The Appeals Process The losing party in a decision by a trial court in the federal system normally is entitled to appeal the decision to a federal court of appeals The court of appeals decision usually will be the last word in a case, unless it sends the case back to the trial court for additional proceedings, or the parties ask the U.S. Supreme Court to review the case.

The Court of Last Resort A litigant may file a petition for a "writ of certiorari," which is a document asking SCOTUS to review the case. The Supreme Court, however, does not have to grant review. The Court typically will agree to hear a case only when it involves an unusually important legal principle, or when two or more federal appellate courts have interpreted a law differently.

Rule of 4 4 judges can agree they want to hear a case and grant “cert”

If the writ is granted, the Supreme Court will take briefs and conduct oral argument. Briefs-written arguments filed by lawyers for concerned parties arguing sides of case Oral arguments-lawyers argue case in front of justice

Opinions Judges meet in closed session and vote. The majority opinion is, as the name suggests, the opinion of the majority of judges hearing the case. The majority opinion is important because it defines the precedent that all future courts hearing a similar case should follow. Concurring opinions are written by individual Justices in the majority. These opinions agree with the majority opinion, but may stress a different point of law. Sometimes, concurring opinions will agree with the result reached by the majority, but for a different reason altogether. Opinions written by justices not in the majority are known as dissenting opinions. Dissenting opinions are important because they provide insight into how the Court reached its decision. In many instances, the Court has adopted the opinion of a dissenting Justice years later in reviewing an issue.

Factors in Judicial decision Judicial Philosophy Judicial Activism Judicial Restraint Politics and Public Opinion Legal not political questions Issue of “Stare decisis”-let the decision stand Accepted law becomes precedent

Views of the Constitution Originalism -is a family of theories central to all of which is the proposition that the Constitution has a fixed and knowable meaning, which was established at the time of its drafting. The Living Constitution-a concept which suggests that the Constitution has a dynamic meaning. The idea is associated with views that contemporaneous society should be taken into account when interpreting key constitutional phrases.