1. 9 The Judiciary Larry Downing/Landov
The final word on interpretation of the Constitution is up to the nine members of the Supreme Court. How the Constitution is interpreted depends upon the policy preferences of the individual justices. As you will see in this chapter on the judiciary, liberal and conservative justices interpret the Constitution in very different ways.
Larry Downing/Landov

2. Roots of the Federal Judiciary
9.1
Roots of the Federal Judiciary
Constitutional Convention
Madison took few notes on Article III
Framers devoted little time to Judiciary
They believed the Judiciary posed little threat of tyranny
Life tenure – free of political or public whims
Article III
Section 1 established the Supreme Court and inferior courts from time to time as Congress may establish
Section 2 specifies judicial power and jurisdiction of the Court
Original Jurisdiction – SC first to hear a case
Appellate Jurisdiction – ability to review or revise cases from a lower court
In spite of the Framers' intentions, the pervasive role of politics in the judicial branch quickly became evident with the passage of the Judiciary Act of Congress spent nearly the entire second half of its first session deliberating the various provisions of the act to give form and substance to the federal judiciary.
The Judiciary Act of 1789 established the basic three-tiered structure of the federal court system. At the bottom were the federal district courts—at least one in each state. If people participating in a lawsuit (called litigants) were unhappy with the district court's verdict, they could appeal their case to the circuit courts, constituting the second tier. The third tier of the federal judicial system defined by the Judiciary Act of 1789 was the Supreme Court of the United States. Although the Constitution mentions the Supreme Court, it does not specify how many people should serve on it. Originally there were six members, then five, and then in 1869 it was permanently fixed at nine. Hampered by frequent changes in personnel, limited space for its operations, no clerical support, and no system of reporting its decisions, the early Court did not impress many people.

3. The Judiciary Act of 1789 and Creation of the Federal Judiciary
9.1
The Judiciary Act of 1789 and Creation of the Federal Judiciary
In spite of the Framers' intentions, the pervasive role of politics in the judicial branch quickly became evident with the passage of the Judiciary Act of Congress spent nearly the entire second half of its first session deliberating the various provisions of the act to give form and substance to the federal judiciary.
The Judiciary Act of 1789 established the basic three-tiered structure of the federal court system. At the bottom were the federal district courts—at least one in each state. If people participating in a lawsuit (called litigants) were unhappy with the district court's verdict, they could appeal their case to the circuit courts, constituting the second tier. The third tier of the federal judicial system defined by the Judiciary Act of 1789 was the Supreme Court of the United States. Although the Constitution mentions the Supreme Court, it does not specify how many people should serve on it. Originally there were six members, then five, and then in 1869 it was permanently fixed at nine. Hampered by frequent changes in personnel, limited space for its operations, no clerical support, and no system of reporting its decisions, the early Court did not impress many people.
Three-tiered Court Structure
Federal District Court
Circuit Courts (Courts of Appeal)
Supreme Court
Rocky beginning for Supreme Court
Changes in personnel
Limited space
No clerical support
No system for reporting decisions
Circuit court duties required substantial travel on horseback

4. Marshall Court: Marbury v. Madison (1803) & Judicial Review
9.1
Marshall Court: Marbury v. Madison (1803) & Judicial Review
John Marshall's tenure: 1801–1835
Opinions from the Court, rather than individual justices
McCulloch v. Maryland (1819)
Broad interpretation of "necessary and proper" clause
Marbury v. Madison (1803)
Established Judicial Review – the ability for the Supreme Court to determine the constitutionality of Federal/State laws as well as treaties
The Court lacked the authority to issue a writ of mandamus under the Judiciary Act of 1789
The evolution of the Supreme Court's role has resulted in large part through the leadership of some of the justices who have served. John Marshall, who headed the court from 1801 to 1835, is considered the most important of all the justices. Marshall established the practice of having the Court deliver opinions as one voice, rather than having each justice write his own.
The Marshall Court also established the supremacy of the federal government and Congress over state governments through a broad interpretation of the necessary and proper clause in McCulloch v. Maryland. Perhaps most importantly, the Marshall Court claimed the right of judicial review, the power of the court to review the acts of other branches of government and the states for constitutionality, in a case called Marbury v. Madison.

5. The Federal Court System
9.2
The Federal Court System
The Supreme Court
Hears cases per term
Most are of appellate jurisdiction (1-3% original jurisdiction)
The Courts of Appeals
13 courts handling 60K cases
11 regular appellate courts and 2 special courts
No original jurisdiction
The District Courts
94 courts handling 350K cases a year
No appellate jurisdiction
11 Federal district court systems
The judicial system in the United States can best be described as a dual system consisting of the federal court system and the judicial systems of the fifty states. As we will discuss in more detail in this section, both systems are basically three-tiered.
At the bottom of the system are trial courts, where litigation begins. In the middle are appellate courts, which generally review only findings of law made by trial courts. At the top of both the federal and state court systems sits the court of last resort. In the federal court system, trial courts are called district courts, appellate courts are termed courts of appeals, and the court of last resort is the Supreme Court.

6. 9.2 FIGURE 9.1 How is the American Judicial System Structured?
The American judicial system is a dual system consisting of the federal court system and the judicial systems of the 50 states. In both the federal court system and the judiciaries of most states, there are both trial and appellate courts. The U.S. Supreme Court sits at the top of both court systems and has the power to hear appeals from both federal and state courts, as long as they involve a federal question.

7. The District Courts 9.2 Each state has at least one Jurisdiction
Congress created the U.S. District Courts when it enacted the Judiciary Act of District courts are federal trial courts. Right now we have 94. Each state has at least one, and the most populous states, California, Texas, and New York, each have four.
Cases which are heard in the federal district courts generally fall into one of three categories: 1) They involve the federal government as a party; 2) they present a federal question based on a claim under the U.S. Constitution, a treaty with another nation, or a federal statute; or 3) they involve civil suits in which citizens are from different states and the amount of money involved is more than $75,000.
Each federal judicial district has a U.S. Attorney General, who is nominated by the president and confirmed by the Senate.
Each state has at least one
More populous states have more
11 Federal District Court systems
Decisions are binding ONLY that district
Jurisdiction
Must involve federal or multi-state issue
U.S. Attorney General
Nominated by president; confirmed by Senate

8. 9.2 FIGURE 9.2 What are the boundaries of
federal district courts and courts of appeals?
This map shows the location of each U.S. court of appeals and the boundaries of the federal district courts in states with more than one district. Note that there are 11 numbered and two unnumbered courts of appeals. There are also 94 district courts. States are divided into between one and four districts; no district court crosses state lines.

9. The Courts of Appeals 9.2 Eleven Courts of Appeals
There are currently 11 numbered courts of appeals. A twelfth handles most appeals involving federal regulatory commissions and agencies including, for example, the National Labor Relations Board. A thirteenth is the U.S. Court of Appeals for the Federal Circuit, which deals with patents and contracts and financial claims against the federal government.
The number of judges within each court of appeals varies depending on the workload and complexity of the cases. It can range from six judges to nearly 30. In deciding cases, judges are divided into rotating panels of three judges.
The courts of appeals have no original jurisdiction. They hear appeals from criminal and civil cases, and appeals from administrative agencies. In general, courts of appeals try to correct errors of law and procedure. They hear no new testimony.
Eleven Courts of Appeals
A twelfth is restricted to federal regulatory commissions
A thirteenth is restricted to patents
Decisions are binding ONLY in that district
Number of judges varies
Depends on workload and complexity
No original jurisdiction
No new testimony

10. The Supreme Court 9.2 Jurisdiction Members Precedent
Sometimes cases reviewed by the Supreme Court involve highly controversial issues. The Court hears only cases from U.S. Courts of Appeal and those from state supreme courts and other courts of last resort. Since 1869, there have been eight associate justices and one chief justice who serve on the court. Each has four clerks, and the entire court employs just 400 staff members.
Decisions of the U.S. Supreme Court are extremely important because they are binding throughout the entire country and establish national precedents, or rules for settling subsequent cases of similar nature. The practice of adhering to precedent when deciding cases is called stare decisis. Who can translate this Latin phrase for us?
Jurisdiction
Reviews cases from U.S. Courts of Appeal and state supreme courts
1-3 % original jurisdiction
97-99% appellate jurisdiction
Members
Eight associate justices and one chief justice
Precedent
Rules are binding throughout the nation.
Stare decisis – latin for let the decision stand

11. Deciding to Hear a Case 9.4 Writs of Certiorari Rule of Four
Latin – to be informed
Request from the Supreme Court to order up records from the lower courts
Cases must come from from U.S. Courts of appeals or other courts of last resort (State Supreme Court).
Must involve a federal question
Rule of Four
cert pool – each justice (except Alito) review a fraction of cases and share notes
Noteworthy cases make it on to the discussion list
Court decides to hear a case when four justices vote yes for any case on the discussion list
More than 7,500 cases are filed at the Supreme Court each term; approximately 80 cases are orally argued and decided. As you can see, only a fraction of cases requesting Supreme Court review are ever considered. [PREVIOUS NOTE STATED 7,000 / 75 CASES ?]
The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Litigants wanting their case to be heard send a petition for a writ of certiorari (Latin for "to be informed") to the Supreme Court, requesting a review of a lower court's ruling. Those petitions are sent first to the chief justice, and then to the other justices. Under the "Rule of Four," a case will get a hearing if at least four justices agree.
The Clerks of the Supreme Court are very important in this process. They generally graduate at the top of their class from top law schools. They review cases and make recommendations to their bosses. Since the Court started hiring more clerks for each justice, the length of opinions has increased as well.

12. 9.4 FIGURE 9.4 How Does a Case Get to the Supreme Court?
This figure illustrates both how cases get on the Court's docket and what happens after a case is accepted for review. A case may take several years to wind its way through the federal judiciary and another year or two to be heard and decided by the Supreme Court, if the justices decide to grant certiorari.

13. Hearing and Deciding the Case
9.4
Hearing and Deciding the Case
After the Court accepts a case and each side has submitted briefs and amicus briefs, the oral arguments begin. Generally, attorneys are given half an hour to argue their case, including time required to answer questions from the bench. Court observers have tried to predict the ruling of a case based on justices' questions, but that is an imperfect art.
After arguments, the justices meet behind closed doors twice a week. They start each conference with a handshake. The chief justice begins the discussion of the case, and each justice speaks in order of seniority. Discussions are followed by a vote on the case.
Once a decision has been made, the opinion must be written. If the chief justice is in the majority, he will assign a justice to write the majority opinion. The opinion is important because it sets out the legal reasoning justifying the decision, and this legal reasoning becomes a precedent for deciding future cases. Justices who disagree with the majority may write a dissenting opinion. Justices who agree with the vote but not the reasoning may submit a concurring opinion.
Oral Arguments
Questions asked and answered
amicus curiae – Latin for friend of the court
The Conference and the Vote
Closed conferences twice a week
Justices openly discuss amongst themselves
Writing Opinions
Majority opinions
Dissenting opinions

14. Judicial Philosophy, Original Intent, and Ideology
9.5
Judicial Philosophy, Original Intent, and Ideology
One of the primary issues concerning judicial decision-making focuses on what is called the activism/restraint debate. Advocates of judicial restraint argue that courts should allow the decisions of other branches of government to stand, even when they offend a judge's own principles. Because judges are not elected, they should leave policy making to the elected branches.
Judicial activism is the opposite: justices help create public policy through their decisions. The case Roe v. Wade, which liberalized abortion laws, is considered an example of judicial activism.
Those who support judicial restraint tend to agree that justices should be strict constructionists. In other words, justices should interpret the Constitution as the Framers wrote and originally intended it. As we will see, this is not realistically possible today.
Activity: Describe a case, either using a real case or a hypothetical one, perhaps associated with some local or national news headline. Split the class into two sections and assign one as an activist court, the other as a court practicing judicial restraint. Each group is to make a decision on the described case, using only those qualities associated with its assigned method of reaching decisions. How do the outcomes compare?
Judicial philosophy and ideology
Judicial restraint – Court should allow the decisions of other courts to stand. Unelected judges make up federal courts rendering the judicial branch the least democratic branch. Defer policymaking to other branches as much as possible
Judicial activism – transitive (property) policy making
Strict constructionism – typically advocated by restraintists, that the Court should interpret the constitution as the Framers originally intended it.

15. 9.6
Court Tradition
At precisely 10am every morning the court is in session, the U.S. solicitor general, or the Court marshal, shouts
“Oyez! Oyez! Oyez!”
Oyez descends from the Anglo-Norman oyez, the plural imperative form of oyer, from Old French ouïr, "to hear"; thus oyez means "hear ye" and was used as a call for silence and attention.
While elected officials keep a close eye on the wishes of their constituents, it is safe to say that many policies we take for granted in the United States would not have come about without the support of the Supreme Court. These include the right to privacy and equal rights for women, African Americans, Hispanics, gays and lesbians, and other minority groups.
The Court has also helped set public policy in regards to its own authority. The Warren Court helped broaden the role of the Court as a public policy maker through its recognition of civil rights, and the Marshall court did the same through its claim of judicial review.