1. 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?

2. 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

3. 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”

4. 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
Nation v. state, slavery, federal legitimacy
Gov’t v. economy
1938-now
Personal liberty, social equality
BoR/14th Amendment/selective incorporation

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

6. 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

8. 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

9. Structure

10. 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

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

12. 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

13. 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

14. 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.

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

16. 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.

17. 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

18. 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

19. 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

20. 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.

21. 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

22. 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

23. 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.

24. 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.

25. 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

26. 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

27. 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.

28. 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

29. 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)

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

31. 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

32. 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

33. 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.

34. 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

35. BURGER COURT
Appointed by Nixon along with 3 others including Rehnquist ( )
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