Dec 2 – CompGov – The Judiciary Agenda: Finish Video Assign Court Cases Begin Research HW: Begin Ch 15 SG Read 15.1-15.3 (506-521) Take Out: Video Notes Pen/Pencil Notebook

The Judiciary The Federal Courts

Some Key Facts. . . The Supreme Court receives about 8,000 petitions to be heard from lower courts Makes a decision on about 1% of those cases Thus, about 99% of all cases that come before the court are “denied”

Which best fits our court system?

Note. . . Judicial Power is PASSIVE!! Now— Courts cannot reach out and “create” cases Must wait for cases to come to them Now— They can spot “cases” from the lower courts and “keep an eye on them” Very common especially at the SC level

The Least Dangerous Branch? Alexander Hamilton, Federalist 78 “The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution.” Justice Felix Frankfurter, “The Supreme Court is the Constitution.” Woodrow Wilson “ The Supreme Court is a constitutional convention in continuous session.” So, initial responses? Dangerous or not?

Judicial Law Making. . . Judges interpret law, and therefore MAKE law; Evidence? Evidence? Over 1000 state laws and 1000 federal laws have been ruled unconstitutional SC has reversed itself over 200 times since 1810 Since 1960, SC has increasingly ruled on Political questions

Congressional Underpinnings- Structure of the federal court system Article 3: Constitutional Courts Creates Supreme Court—gives Congress power to create “inferior” or lower courts Provides the basis for our judicial system Life terms! Three levels: District Court—lowest level of federal courts Court of Appeals (Circuit Courts) Supreme Court

The Supreme Court

Background 9 members; highest court in the land; # set by Congress, Pres apts Chief Justcie Key Powers—judicial review Federal judges are appointed by the President on the “advice and consent” of the Senate Needs a majority for confirmation Shall hold their office “during good behavior”—basically for life Can be removed by Congress—impeached

How do Supreme Court justices choose which cases to hear? 1. Look for broad, sweeping issues 2. Look at petitions from litigants wanting to appeal to them Then, each justice makes a list – a discuss list – of what cases they would most like to see The justices meet in secret with their discuss lists Starting with the most junior justice, they bring up cases and talk about them In order to hear a case, 4 justices have to say they want to hear it Granting cert. is agreeing to hear a case 4 is not a majority The 4 that want to hear a certain case have to be sure that they can get a 5th judge to side with them It’s a strategic process Rule of 4

How the Court Works Runs from 1st Monday in October to the end of June Hear cases / arguments M—Th, must have 6 justices to hear a case Oral arguments last 30 minutes—open to public After oral arguments, they chat about the case

Cues Issues – accept constitutional issues/civil liberties Conflicting rules – when lower courts disagreed Lawyers – good attorneys they have seen before have an influence “Amicus Curiae” briefs – more likely to accept cases with briefs that ask them NOT to hear the case Realistically, there are lots of cases that come to the court and are not read or studied – it would be impossible to read/study all of them Justices (and their clerks) look for specific characteristics or cues

The Roberts Court Alito Sotomayor Kennedy Ginsburg Scalia Thomas Breyer Kagan John Paul Stevens – 1975, Ford …replaced by Elena Kagan (2009 Obama) Antonin Gregory Scalia – 1986, Reagan (Conservative, From New Jersey; educated by Georgetown and Harvard) Anthony McLeod Kennedy – 88, Reagan (Moderate, From California; educated by Stanford and Harvard) David Hackett Souter – 90, GH Bush replaced with Sonia Sotomayor (09, Obama) (Moderate/Liberal, Raised in the Bronx; educated by Princeton and Yale Law School) Clarence Thomas – 91, GHW Bush (Conservative, From Georgia; educated by Holy Cross College and Yale) Ruth Bader Ginsburg – 93, Clinton (Liberal, From New York; educated by Cornell, Harvard, and Columbia) Stephen Gerald Breyer – 94, Clinton (Liberal, From California; educated by Stanford, Oxford, and Harvard) Samuel Anthony Alito – 06, GW bush (Conservative, From New Jersey; educated by Yale and Princeton) Roberts – 05, Bush (Conservative, From upstate New York; educated at Harvard) Chief Justice John Roberts

http://www.supremecourt.gov/about/members.aspx Jump…

The Structure of the Judicial System

Jurisdiction “Original Jurisdiction”: the jurisdiction of the court to hear a case first – usually at a trial. facts “Appellate Jurisdiction”: the jurisdiction of the courts that hear cases brought to them on appeal from decisions of a lower court. only on the legal issues of the case. “Original Jurisdiction”: the jurisdiction of the court to hear a case first – usually at a trial. The court with original jurisdiction will hear the claims of fact and law between the parties, determine the facts, apply the law, and make the initial decision in the case. “Appellate Jurisdiction”: the jurisdiction of the courts that hear cases brought to them on appeal from decisions of a lower court. The appellate courts do not re-decide factual disputes (they accept the factual record of the case from the trial court) but only on the legal issues of the case.

State & Federal Courts 98% of all criminal cases are decided in the state courts. Only a small percentage of cases are decided by trial. Most criminal cases are decided by plea agreements. Most civil cases also are decided in the state courts. Only a small percentage of cases are decided by trial. Most are settled.

Types of Justices Presidents strongly influenced by judicial ideology in choosing justices. Judicial Activism Judicial Restraint Original Intent Evolutionists

Judicial Activism Philosophy that the courts should take an active role in solving social, economic or political problems “guardian ethic”  I. Judicial activism. Philosophy that the courts should take an active role in solving society’s problems. Courts should uphold the "guardian ethic:" they act as a guardian of the people. Examples of judicial activism: Striking down Topeka School Board’s policy of seg. in Brown v. Board (1954) Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann) Striking down the Gun Free School Zones Act in US v. Lopez, 1995. Striking down line item veto in Clinton v. NY 1998 Striking down Florida recount in Bush v. Gore 2000 Striking down state death penalties for mentally retarded in Atkins v. Virg., 2002 Striking down a Texas sodomy law in Lawrence v. Texas Striking down a DC city ordinance banning handguns in DC v. Heller, 2008

Judicial Restraint Philosophy that the courts should allow the states and other branches to solve social, economic, or political problems. Courts should “interpret” the law, not make the law Suggests “original intent” of founding fathers—decide cases on the basis of what the founding fathers “wanted” II. Judicial restraint. Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems. Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers. Courts should merely interpret the law rather than make law. Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted.

On your notecard Write which side of the room you were on (for) or (against) the death penalty Listen for which justice took the same position you did and why. Justice Breyer indicates 6 factors which influence his decision. Which does Breyer emphasize? Which does Scalia emphasize? Words and context History Tradition Precedent Purpose and values Consequences

On your notecard Flip the card over and write which justice, Scalia or Breyer, took the same position you did with regards to the death penalty for juveniles. In at least 2 sentences, write why you think the justice took that position.

Opinions Types: Unanimous—less than 1/3 of all cases Majority—if CJ, he assigns someone to write Dissenting—if CJ, the most senior of maj writes opinion Concurring—someone who agrees with majority, but for different opinions

Carrying out the Opinions Ways to get around court opinions Amending Constitution—court cannot strike down something as unconstitutional if it is in the constitution Remand to lower courts Executive Branch may ignore decision State and local governments may not carry it out either