THE JUDICIARY BRANCH “The Judiciary is…the least dangerous branch of government… It may be said that it has neither Force nor Will, but merely judgment” - Alexander Hamilton Federalist Paper #78

Original Intent: The Judiciary’s power would be limited to cases involving: - the interests of the nation; - the interests of the states when in conflict with each other; - state conflict with the national gov’t.

A. Original Intent of the Framers The judicial branch was created as a third branch of government to be equal to the legislative and executive branches. Its main purpose: Check the powers of the other 2 branches. However, it was not given any power to enforce its decisions. - Federal judges are appointed by the President and confirmed by the Senate.

B. LEVELS OF COURTS The United States uses a dual court system. - Two levels of courts exist: federal & state Each system is independent from the other. - However, federal courts have supremacy over state courts when there is conflict in decisions or jurisdiction. Federal judiciary powers come from Article III of the Constitution. State courts get their powers from their state constitutions and laws. - But, state courts can’t make rulings or establish punishments that violate the U.S. Constitution.

C. Jurisdiction and Types Each level of courts can conduct trials based on its jurisdiction. This is the authority of a court to hear a case. Federal courts hear cases where federal law was violated, and state courts hear violations of state law. Types of jurisdiction: 1. A trial court authorized to hear a case for the first time: original 2. A court that hears only appeals from those who lost in a previous trial court: appellate 3. Occurs when state & federal courts both claim authority over a case: concurrent

Jurisdiction Types (cont’d) 4. Exclusive: Federal government can prosecute cases that it alone has power over. (e.g. terrorism; stock market insider trading; mail fraud)

Federal courts hear these case types: Criminal trials involving federal laws Appeals of lower federal and state court decisions Interpretations of the U.S. Constitution Arguments between states, or between citizens of different states Arguments between U.S. citizens and the U.S. government or with foreign gov’ts

D. FEDERAL COURT ORGANIZATION Federal courts are organized around 3 levels: - Highest level: 1 Supreme Court Jurisdiction: Original & Appellate (most cases) - Appeals level: 12 Circuit Courts of Appeals Jurisdiction: Appellate only - Lower courts: 94 District Courts Jurisdiction: Original only Legislative Courts – Tax Court, Military Courts, Court of International Trade, Territorial Courts, etc.

E. POWER OF THE COURTS All federal courts exercise the power of judicial review this is the power to declare laws of Congress or any state to be unconstitutional. Courts like to use precedents (past cases used to make a new decision). Examples are: - Plessy v. Ferguson - Brown v. Board of Ed. - Roe v. Wade - Dred Scott v. Sanford Marbury v. Madison

Judicial Review Judicial restraint: Judges rely on precedents which are past cases that can be used as examples to be followed in future cases. Judicial activism: Judges use their own views and biases on social issues to make decisions on cases.

F. Supreme Court Powers The Supreme Court is the most powerful court in the U.S. dual court system. It can: - Interpret the Constitution - Protect civil liberties & rights - Overturn lower court decisions and state laws. - Uphold regulatory laws of the U.S.

G. Going to Court To have your “day in court” a person must: - have a legitimate complaint… - by having had some harm done to him… - or been accused of a crime. Courts don’t go looking for cases!

1. Courts hear only justiciable cases that involve actual legal disputes that are real and adverse, not hypothetical ones. 2. If a plaintiff wants to have his case heard he must have some ”standing” (show that some harm was done to them).

3. Political or religious dogma issues are not justiciable! - A person cannot sue Congress just because he doesn’t like a law. (e.g. his taxes are too high) - The Court will not decide which religion is correct in interpretation of religious beliefs. 4. For the gov’t to be sued it must have violated the Constitution somehow. (Ex: violated a person’s rights; favored one race over another; exceeded its powers; acted criminally)

5. Class action suits- Justiciable because many people may have suffered harm from the results of the same action. (e.g. segregating schools; making a bad drug) 6. Amicus curiae briefs- (“Friend of Court” briefs) are written legal arguments made by any interested party designed to try and sway a court’s decision or add to a case’s justiciability.

Who are the players in a court? The person, government level, or organization that is charged with a crime or must answer to a civil charge: the defendant The person, organization, or government level that is bringing the charge/complaint: the plaintiff (in a criminal case it is usually the government) Each side can bring people called witnesses who will testify on behalf of, or against, the defendant or plaintiff.

What’s a Lawsuit? Lawsuits are civil complaints, not criminal ones, that usually seek to recover punitive damages (e.g. money, property). If several individuals file a lawsuit on behalf of many similarly harmed people, this becomes a class action lawsuit.

Structure of the Virginia Court System VA Supreme Court - original and appellate jurisdiction 1 Court of Appeal - appellate jurisdiction 31 Circuit Courts (trial courts) that hear felonies and higher misdemeanor cases. - original jurisdiction 32 General District Courts (trial courts) that hear lower misdemeanor cases - original jurisdiction 32 Juvenile and Domestic Relations Courts that deal with family law and juvenile crimes/problems. - original jurisdiction

THE U.S. SUPREME COURT

U. S. Supreme Court Basics The U.S. Supreme Court is the highest court in the land. It is the court of last resort in all questions involving federal and state law. Most of its cases are appellate and come from lower federal courts (e.g. Circuit Courts of Appeals) or from state supreme courts.

Supreme Court Members 2010 The Court has 9 justices, a number which has stayed constant since 1869. There is one Chief Justice and 8 associate justices. Each member has 1 vote. The current Chief Justice is John Roberts. Each justice is appointed by the President and confirmed by the Senate. All have been men so far with only four exceptions. The oldest member is 80; youngest is 55.

Supreme Court Members 2013 Ruth Bader Ginsburg, 80 Elena Kagan, 53 Nominated associate justice By President Obama, 2010 Ruth Bader Ginsburg, 80 Nominated associate justice By President Clinton, 1993 Antonin Scalia, 77 Nominated associate justice By President Reagan, 1986 Stephen G. Breyer, 75 Nominated associate justice By President Clinton, 1994 John G. Roberts, 58 Nominated Chief justice By President George W. Bush, 2005 Anthony M. Kennedy, 77 Nominated associate justice By President Reagan, 1988 Clarence Thomas, 65 Nominated associate justice By President Bush, Sr., 1991 Samuel Anthony Alito, 63 Nominated associate justice By President George W. Bush, 2006 Sonia Sotomayor, 59 Nominated associate justice By President Obama, 2009

Selection of Justices Justices are nominated when an opening occurs. The president depends on the Attorney General and a lawyer’s organization called the American Bar Assoc’n for advice on Supreme Court replacements.

TERMS AND QUALIFICATIONS Each justice is appointed to a life term of office without needing to be reappointed. WHY? The Framers wanted to ensure that justices were not influenced by the President or Congress by making only judgments of which they approve. Qualifications of office: - Be a U.S. citizen Selection criteria today: - Recommended by fellow judges. - Judicial record & ideology - Patronage (appointment based on political loyalty / service) - Diversity (gender/age/religion) The justices would not be

REMOVAL OF FEDERAL JUDGES Nearly all federal judges appointed by the president can be removed from office through impeachment. Reasons for impeachment - treason, bribery, high crimes and misdemeanors

Duties of Justices Constitution does not specify their duties. Main duty: - Hear and rule on cases Special assignments: - High profile investigations (e.g. Kennedy assassination) - Special prosecutions (e.g. prosecution of Nazi war criminals after WW II)

Duties (cont’d) The Chief Justice: - administers the oath of office to the President elect - presides over all impeachment trials of President &V.P. - acts as the “face and voice of the court”

WHO GETS NOMINATED? Those whose political ideology is close to the president’s. Those who can help a president achieve a legacy by supporting his political agenda. Those appointed for race, religious, or gender diversity.

How do appointments to the Supreme Court have long term consequences for the country?

End of The Judicial Branch

Other Judicial Branch Members To help handle the details of the Court, select cases for appeal, and prepare the Court’s decisions after cases have been heard, a small group of people called law clerks are hired.

State courts: State judicial powers are protected by the 10th Amendment, but federal supremacy can override state laws or court decisions when in conflict with the Constitution.

B. Jurisdiction Definition: Jurisdiction is the authority of a court to interpret and apply the law by hearing a case and ruling on it.

Four Jurisdiction Types 1. Original: Courts hear cases for the first time and render a verdict (criminal trial) or a decision (lawsuit). 2. Appellate: Courts hear only appeals brought by people because previous lower court decisions were not favorable to them.

Jurisdiction Types (cont’d) 3. Concurrent: Federal gov’t and states may have simultaneous jurisdiction in a case. This is called dual sovereignty. Federal supremacy can be applied to claim jurisdiction, but can also defer to the states. (e.g. bank robbery; 2003 sniper case)

Jurisdiction Types (cont’d) 4. Exclusive: Federal gov’t can prosecute cases that it alone has power over. (e.g. terrorism; stock market fraud; mail fraud)

C. Federal Jury System Two types of juries: 1. Grand juries Investigative bodies of 16-23 people that only decide whether there is enough evidence to warrant a trial for an accused person. - Closed to the public - Neither the accused nor a judge is present. - Issue indictments (formal charges of a crime)

Federal Jury System (cont’d) 2. Petit juries - Smaller juries of 6 to 12 selected citizens. - Decide criminal and civil cases. - Trials with petit juries are mostly open to the public - Secret verdict deliberation

VI. Parties To Lawsuits A. All parties involved in a lawsuit are referred to as litigants. 1. The party that brings the complaint is called the plaintiff. 2. The party who must answer to the complaint is the defendant.

B. Parties to Appeals Appellant: The party (1st name on the case) that appeals its loss from a lower court’s original decision. Appellee: The party (2nd name on the case) that defends against the appellant’s position. EXAMPLES: Marbury v. Madison Johnson v. U.S. Steel Corp. Clinton v. City of New York United States v. Virginia

VII. Supreme Court Appeals All lower court appeals must first be exhausted. B. The appellant must apply to the Court for a writ of certiorari (aka: granting “cert”). - This is a demand for the last appeals court to send up the original case in question for review by the USSC.

OK, who wants to grant cert with me? Rule of Four - At least four justices must agree to grant “cert” to a case in order for it to be heard. This is called the Rule of Four. - If “cert” is not granted then the decision of the last court stands. OK, who wants to grant cert with me? Me too! Hell, no! Me! Pass! Where am I?

C. The Written Brief Parties to the case are notified and must file separate written briefs that state the constitutional basis of their argument. If the federal government is a party then it is the Solicitor General who represents it. - The justices read these briefs prior to hearing the case in the court. - “Amicus curiae” briefs are reviewed at this point.

D. The Oral Argument On the court date, attorneys for each side state their case in an oral argument before the Court. Each is limited to 30 minutes, unless the Court grants them more time.

E. The Case Conference The justices will meet in private days later to discuss the merits of the case and vote on a decision. Each justice has one vote. If a tie vote occurs then the decision of the last court stands.

F. The Opinions One justice will be assigned to write the Court’s decision called an opinion. 1. Majority opinion: The winning side of the argument expresses the reasons for its ruling (also called “opinion of the Court”). - Split decision: A vote that is 5-4 - Unanimous decision: A vote that is 9-0 2. Dissenting opinion: The losing side’s reasons for disagreeing with the majority ruling. 3. Concurring opinion: An opinion agreeing with the majority’s conclusion, but for different reasons than what is written in the majority opinion.

G. Judicial Implementation Court decisions have legal authority, but they have no means to enforce them and must rely on the other two branches to do so. Implementation is difficult if a decision requires the cooperation of a large number of officials or depends upon the states to take the lead. Example: Brown v. Board of Education The Court can order its own “remedy” to effect implementation (judicial activism).

END OF UNIT 11 – JUDICIARY BRANCH “We are under a Constitution, but the Constitution is what the judges say it is. - Charles Evans Hughes Former Chief Justice, U.S. Supreme Court