1. Lecture #11: The Judicial Branch
August 2, 2017

2. The Supreme
Court
The Supreme Court’s term runs from the first Monday in October through the end of June.

3. Inside The Supreme Court Building

4. The Supreme Court Justices
Sotomayor 2009-B. Obama; Breyer 1994-Clinton; Alito 2006-G.W. Bush; Kagan 2010-Obama
Thomas 1990-G.H.W. Bush; Scalia 1986-Reagan; Roberts 2005-G.W. Bush; Kennedy 1988-Reagan; Ginsburg 1993-Clinton
As of 2010, Salaries for Chief Justice is $223,500 and $213,900 for Associate Justices
Back Row: Sonia Sotomayor , Stephen Breyer, Samuel A. Alito, Elena Kagan,
Front Row: Clarence Thomas, Antonin Scalia, John G. Roberts, Jr., Anthony Kennedy, Ruth Bader Ginsburg

5. The Scope of Judicial Power
Judicial power is passive and reactive
Hamilton called it “the least dangerous branch.”
Power only to decide judicial disputes
A Dual court system
Two court systems, state and federal, exist and operate at the same time in the same geographic areas
Cases must be ripe
Cases cannot be moot
Cases cannot be political
Judicial Federalism: State & Federal Courts

6. Understanding the Federal Judiciary
The Framers viewed the federal judiciary as an important check against Congress and the president
But the judiciary has no influence over the “sword” or the “purse”
Judicial power is ensured via:
Insulation from public opinion
Insulation from the rest of government
Alexander Hamilton

7. Supreme Court Jurisdiction

8. Structure of the Court System

9. Federal Courts What kinds of cases can a federal court hear?
The court must have jurisdiction:
“The power, right, and authority to interpret the law.”
Two types of federal-court jurisdiction:
Federal-question jurisdiction.
Diversity jurisdiction.

10. Federal Question Jurisdiction
Case involves:
Federal statute or law.
U.S. constitution.
Examples:
Johnson vs California
Legitimacy of laws ( violent video games)
Furman vs. Georgia

11. Diversity Jurisdiction
Federal courts can hear questions of state law, IF:
The parties are citizens of different states, AND
The value of the case EXCEEDS $75,000 (the “amount in controversy” requirement).

12. Federal Court - Levels

13. U.S. District Courts 91 U.S. district courts.
Arranged geographically; at least one within each state.
But NOT connected with state government.

14. U.S. District Courts
Sample name: United States District Court for the Middle District of Florida.
Parties:
Plaintiff (initiates action).
Defendant (person being sued).
One judge presides over the case.
Case may be tried to a jury or may be a “bench trial.”

15. Federal Court - Levels

16. U.S. Courts of Appeals
Party who loses in district court has an AUTOMATIC right to an appeal.
13 U.S. Courts of Appeals.
12 are geographic.
One is a specialty court (Federal Circuit).
Sample name: United States Court of Appeals for the Eleventh Circuit (“Eleventh Circuit”).

17. U.S. Courts of Appeals Parties:
Appellant
Appellee
Three judges (“the panel”) hear legal arguments only.
No jury.
No new evidence/no witnesses.

18. U.S. Courts of Appeals Types of relief:
Affirms = agrees with decision in trial court.
Reverses = disagrees with decision in trial court.
Remands = sends back to trial court for further proceedings (probably with some instructions).
What happens to the party who loses in the appellate court?

19. U.S. Supreme Court
Loser in U.S. Court of Appeals may file a Petition for Writ of Certiorari.
Supreme Court does not have to hear the case (“cert. denied”).
If it does:
Nine JUSTICES hear the appeal.

20. State Courts Each state has its own, independent judicial system.
Cannot be bound by the federal courts.
One state system cannot bind another court system.
Structurally, each is a bit different.
But, most have three levels.

21. Trial Courts
State courts can hear any kind of case, unless a federal statute states otherwise.
Limited v. general jurisdiction.
Geographic: Usually by county.
One judge.
Parties = Plaintiff and defendant.

22. Intermediate Appellate Courts
Loser has an appeal as a right.
Three judges hear case.
Parties = appellant and appellee.

23. State Supreme Courts May or may not have to hear the case.
Justices (odd number).

24. Judicial Branch
Article III of the Constitution established the judicial branch of government with the creation of the Supreme Court.
This court is the highest court in the country and vested with the judicial powers of the government.
There are lower Federal courts but they were not enumerated in the Constitution. Congress deemed them necessary and established them using power granted from the Constitution.

25. Judicial Review
Courts decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution (aka judicial review)
Judicial Review is this process that the judiciary uses to provide checks and balances on the legislative and executive branches.

26. Judicial Review
Judicial review is not an enumerated power given to the courts but it is an implied power.
In Marbury v. Madison (1803), the courts' power of judicial review was clearly articulated.

27. Basic Characteristics
The judicial branch hears cases that challenge or require interpretation of the legislation passed by Congress and signed by the President.
Consists of the Supreme Court and the lower federal courts.
Appointees to the federal bench serve for life or until they voluntarily resign or retire.

28. Basics
The Supreme Court is the most visible of all the federal courts.
The number of Justices is determined by Congress rather than the Constitution, and since 1869, the Court has been composed of one Chief Justice and eight Associate Justices. Justices are nominated by the President and confirmed by the Senate.

29. Current Supreme Court John G. Roberts, Jr., Chief Justice
John Paul Stevens
Neil Gorsuch
Anthony Kennedy
David Souter
Clarence Thomas
Ruth Bader Ginsberg
Stephen Breyer
Samuel Alito Jr.

30. Justice Taney (Dred Scott) Justice Holmes (1st amendment)
Other Justices of some fame:
Justice Taney (Dred Scott)
Justice Holmes (1st amendment)
Justice O’Connor (1st woman)
Justice Marshall (1st African-American)
Justice Rehnquist ( limiting executive privilege)
Justice Warren (rights of the accused and Brown)
Justice Roberts (present Chief Justice)

31. Judicial Tenure The Role of Politics in Selecting Judges
There are no Constitutional requirements
The process of judicial selection is a highly partisan and political process
Because of the power wielded by the Supreme Court, presidents take a personal interest in selecting appointees
Judge Samuel A. Alito prior to the start of his second day of questioning before the Senate Judiciary Committee
Judicial Tenure
Interpreted to mean a life term
The Constitution stipulates that federal judges “shall hold their Offices during good Behavior”
Judges cannot be removed for any reason by a President
Congress cannot impeach judges because they don’t like their decisions

32. The Politics of Selecting Judges
Previous Backgrounds
Number Job Experience Most Recent Example
33 Federal Judges Sonia Sotomayor (2009)
22 Practicing Lawyers Lewis F. Powell (1971)
18 State Court Judges Sandra Day O’Connor (1981)
15 Other Elena Kagan, Solicitor General (2010)
8 Cabinet Members Arthur Goldberg, Labor Sec. (1962)
7 Senators Harold H. Burton, R-Oh (1945)
6 Attorney Generals Tom Clark (1949)
3 Governors Earl Warren, D-Ca (1953)
1 President (POTUS) William Howard Taft (1921)

33. The Politics of Appointing Federal Judges
Political Litmus Tests
Senate: Advice and Consent
The Role of Party, Race, Age, and Gender
The Role of Ideology and Judicial Experience
The Role of Judicial Philosophy and Law Degrees
What is the Litmus Test - In political terms, a person’s stand on a key issue that determines whether he or she will be appointed to public office or supported in electoral campaigns
Most judicial nominees have refused to answer questions that might reveal how they would decide a case.
Activist
Breyer
Scalia
Thomas
Liberal
Conservative
Ginsburg
Roberts
Alito
Sotomayor
Kennedy
Self-Restraint

34. The Process of Judicial Selection
Submission of an appointee’s name to the Senate Judiciary Committee
Hearings are held by the Senate Judiciary Committee
Nomination goes to the full Senate, where there is debate and, if no filibuster, a vote
Senate Confirmation
Filibustering Court Nominees
Constitution requires only a majority vote of the senate to “advise and consent” to a presidential nominee
60 votes required to end a filibuster
Interpreted to mean a life term

35. The Politics of Appointing Federal Judges
Do Judges Make Law?
Adherence to Precedent - Stare Decisis
The rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented
Judicial Longevity and Presidential Tenure
Reform of the Selection Process
Changing the Numbers
Changing the Jurisdiction

36. First woman appointed to the Supreme Court, by Ronald Reagan
Party Affiliation of District Judges and Courts of Appeal Judges Appointed by Presidents
President Party Appointees from Same Party
Roosevelt Democrat 97%
Truman Democrat 92
Eisenhower Republican 95
Kennedy Democrat 92
Johnson Democrat 96
Nixon Republican 93
Ford Republican 81
Carter Democrat 90
Reagan Republican 94
G.H.W. Bush Republican 89
Clinton Democrat 88
G.W. Bush Republican 93
First woman appointed to the Supreme Court, by Ronald Reagan

37. Interpreting the Law
Primary function of courts in general and Supreme Court in particular
Mechanical jurisprudence—the view of judging
Laws often ambiguous

38. Legal Interpretation Judges base decisions on precedents, laws
Explain interpretations by invoking generally accepted legal standards or yardsticks
Can sometimes explain decisions by the literal meaning of the words of text in question

39. Legal Interpretation May refer to intent of the framers
Previous court cases/precedents
May base decisions on social or political needs
**All enhance the credibility of decisions

40. Supreme Court Process
Chooses cases—no independent data, relies on briefs
Oral arguments heard over seven 2-week sessions
Conference Days—Private meetings/deliberation

41. Supreme Court Process
At meeting, they speak in descending order of seniority.
Take tentative vote in ascending order of seniority
Assign opinion writing—drafted and circulated to fellow justices for comment

42. Supreme Court Opinions
Per Curiam: Unsigned decisions of the Court that states the facts of the case and the ruling
Majority Opinion: written opinion of the majority stating reasoning for the decision

43. Supreme Court Opinions
3. Concurring Opinion: Can be authored by a justice who agrees with the outcome of a case but for different reasons; may go on record with own opinion; can influence future opinions; can lessen impact of majority opinion

44. Supreme Court Opinions
Dissenting Opinion: minority opinions; written by justices who dissent; may influence future decisions; can undermine majority opinion
Plurality opinion: in the absence of a majority opinion presents the reasoning of most of the justices who side with the winning party