THE FEDERAL COURTS CH. 10 Where in the Constitution does it say that the Supreme Court has the power of judicial review? What is the difference between original and appellate jurisdiction? Why should federal judges serve for life? Why should federal courts be able to declare laws unconstitutional? Should federal judges only interpret existing laws or should they be able to create new laws?

ARTICLE III Creates ONE Supreme Court Inferior courts created by CONGRESS Judiciary Act of 1789 Original and appellate JURISDICTION Appointed by POTUS; Senate approval Serve for “good behavior” No set number of judges No mention of JUDICIAL REVIEW

Development: Role of the Courts ORIGINALLY Rule on existing law DO NOT make law Purpose of a case was NOT to learn what the judge BELIEVES but what the LAW requires NOW No longer rule on existing law – MAKE THE LAW Common law system Federalist #78 Alexander Hamilton – neutral role of courts Weakest branch “has no influence over either sword or the purse” “can take no active resolution whatever” “neither force nor will but merely judgment” “beyond comparison the weakest of the three departments of power” “liberty can have nothing to fear from the judiciary alone”

Development: Role of Courts JURISDICTION OF SCOTUS “ The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.” LIMITED ORIGINAL LARGE APPELLATE 1787-1865 Nation v. state, slavery, federal legitimacy 1865-1937 Gov’t v. economy 1938-now Personal liberty, social equality BoR/14th Amendment/selective incorporation

WHERE DO COURTS COME FROM? SCOTUS = US CONSTITUTION FEDERAL COURTS = JUDICIARY ACT OF 1789 (originally) or CONGRESS creates more STATE COURTS = EACH STATE LEG

Structure: Dual System FEDERAL STATE Constitutional District courts Courts of appeals US Supreme Court Criminal & civil cases Vary from state to state County, circuit, district, superior Handle criminal Grand theft Shoplifting Rape And Civil Divorce Property disputes Car accidents

FEDERAL JURISDICTION 1. Constitutional questions 2. Laws enacted by the federal government 3. Admiralty and Maritime Law 4. Disputes where the US government is involved 5. Controversies between states 6. Disputes involving foreign governments  7. US Ambassador, minister, and other consuls serving in foreign countries

Structure

CRIMINAL V. CIVIL CRIMINAL Commission of acts specifically prohibited by written statute Burden of proof = STATE CIVIL Everything else Provides a means for a person to enforce a right or to correct a wrong that is not specified by criminal code B/t people and private matters Marriage Wills Contracts Property Burden of proof = plaintiff or defendant

DC – general trial courts of the federal gov Created by Congress

Structure: Selecting Judges FEDERAL appointments made by POTUS STATE appointments made by GOV. or VOTE (vary) No formal requirements President appoints judges to the federal courts Criteria political party, ideology, ethnic representation, gender representation Tenure in office “good behavior”: federal “life-time appointment” Ideology does not determine behavior Rationale: judicial independence Impeachment - only way to remove a federal judge from office Confirmed by majority vote in the Senate

Selecting Justices Presidents seek judicial appointees who share their political ideologies. Senate filibusters have delayed judicial nominations, causing several potential judges to remove their names from consideration. “Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens.” – Ted Kennedy

SENATE JUDICIARY COMMITTEE The Judiciary Committee evaluates the nominee by gathering information, running a background check, and reviewing the record and qualifications of the nominee.  

Female Judicial Appointments 1963–2013 Copyright © 2015 Cengage Learning. All rights reserved.

Minority Judicial Appointments 1963–2013 Figure 16.2 Source: Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2005–2006 (Washington, D.C. : Congressional Quarterly, 2006), Table 7.5. Copyright © 2015 Cengage Learning. All rights reserved.

THE POLITICS OF CONFIRMATION Senatorial courtesy – POTUS nominates qualified person BUT needs approval from senior senator (of POTUS’ party) where district judge is to serve Justice Dept. finds candidates that match POTUS political philosophy Senate judiciary committee holds confirmation hearing

SCOTUS IN ACTION Session October-June Writ of certiorari Rule of Four US gov’t is party (1/2 caseload) solicitor general represent US Amicus curiae – influence judges, offer new arguments, lobbying for the court Role of CJ – speaks first, votes last, guides debate, writes decision for majority opinion 100 cases/year Tie – lower court decision stands 2/5 cases unanimous

Writs of Certiorari The Rule of Four requires agreement of four justices to hear the case Involving significant federal or constitutional question Involving conflicting decisions by circuit courts Involving constitutional interpretation by one of the highest state courts

OPINIONS Justices issue a written document explaining their reasoning in a case, known as a majority opinion, or by issuing one of two types of other opinions: a concurrence or a dissent.

POWER OF SCOTUS Decisions are LAW OF THE LAND Make policy through new interpretation of laws or Constitution Extend meaning of current law Establish precedent (stare decisis) – “let the decision stand” Similar cases decided in similar manner

JUDICIAL ACTIVISM federal judiciary should take an active role in using its powers to check the activities of Congress, state legislatures, and administrative agencies when those government bodies exceed their authority Opponents: usurps the power of the elected branches of government Defenders: form of judicial review

Arguments for Judicial Activism Courts should correct injustices when other branches or state governments refuse to do so. Courts are the last resort for those without the power or influence to gain new laws.

Arguments Against Judicial Activism Judges lack expertise in designing and managing policies. The court makes decisions that require funding state governments don’t have or would prefer to spend elsewhere. Courts are not accountable because judges are not elected and serve life terms.

JUDICIAL RESTRAINT The opposite of activism… courts should defer to the decisions made by the legislative and executive branches, because members of Congress and the president are elected by the people whereas members of he federal judiciary are not

CHECKS ON JUDICIARY No implementation power Appointed by POTUS Confirmed by Senate Impeachable COTUS limit size and jurisdiction Overturn decision w/ amendment COTUS passes slightly revised law

Public Opinion and the Courts Defying public opinion may harm the legitimacy and reputation of the Supreme Court. Appointment process and life terms insulate justices from public opinion. Justices deliberate in secret. Impeachment and lack of enforcement power mean justices are not completely isolated from public opinion. The Court counts on others to respect its decisions.

ROLE OF THE COURT Not representative of American public Should the opinion of the court represent the opinion of the majority? (Democracy) Or leave it up to the people’s branch, Congress? Protects the Constitution which was the will of the people

Checks on Judicial Power Public Opinion and the Courts Restrains and energizes Activism coincides with political change Most changes in Court come from changes in its personnel (not from Congress)

MARSHALL COURT Legacy: Strengthened the court and the federal government Judicial Review: Marbury v. Madison

Marbury v. Madison John Adams (Federalist) President, made midnight appointments to fed positions John Marshall (Federalist) Secretary of State had to sign commissions Left to incoming Sec. Of State James Madison Marbury, appointed Justice of Peace for DC, and 16 others did not receive commissions Marbury sued Madison Asking the SC to order Madison to given them their commissions WRIT OF MANDAMUS - orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so Under Judiciary Act of 1789

JUDICIAL REVIEW John Marshall, one of the midnight appointments, now Chief Justice Decision: Madison was wrong however, The Judiciary Act of 1789 contradicted the plain words of the Constitution about SC’s jurisdiction Outcome: SC did not have jurisdiction over the case Declared an act of Congress unconstitutional

Judicial Review Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions. It is the chief judicial weapon in the checks and balances system.

WARREN COURT Appointed by Eisenhower 1953-1969 Former Governor of California LEGACY: liberal decisions – ACTIVIST COURT Cases: Church and State: Engel v. Vitale Free Speech: Tinker v. Des Moines Desegregated schools: Brown v. Board of Education Topeka, KA Criminal Rights: Gideon v. Wainwright- entitled legal representation Miranda v. Arizona- safeguard while under arrest

BURGER COURT Appointed by Nixon along with 3 others including Rehnquist (1969-86) LEGACY: disappointed Nixon’s conservative agenda Nixon meant to reverse liberalism of Warren Court United States v. Nixon 1974 Roe v. Wade Abortion legal in first trimester