1. Institutions of Government: The Judiciary
UNIT 6
Institutions of Government:
The Judiciary

2. UNDERSTANDING THE JUDICIARY
Lesson 35
UNDERSTANDING THE JUDICIARY

3. Lesson 6.1 The Nature of the Judicial System

4. The Nature of the Judicial System
Introduction:
Two types of cases:
Criminal Law: The government charges an individual with violating one or more specific laws.
Civil Law: The court resolves a dispute between two parties and defines the relationship between them.
Most cases are tried and resolved in state, not federal courts.
Cases of burglary or divorce

5. The Nature of the Judicial System
Participants in the Judicial System
Litigants
Plaintiff—the party bringing the charge
Defendant—the party being charged
Jury—the people (normally 12) who often decide the outcome of a case
Standing to sue: plaintiffs have a serious interest in the case; have sustained or likely to sustain a direct injury from the government
Justiciable disputes: a case must be capable of being settled as a matter of law.

6. The Nature of the Judicial System
Participants in the Judicial System
Groups
Use the courts to try to change policies
Amicus Curiae briefs used to influence the courts
“friend of the court” briefs used to raise additional points of view and information not contained in briefs of formal parties
Attorneys
800,000 lawyers in United States today
Legal Services Corporation: lawyers to assist the poor
Access to quality lawyers is not equal.

7. Lesson 6.2 The Structure of the Federal Judicial System

8. The Structure of the Federal Judicial System

9. The Structure of the Federal Judicial System
District Courts (91 federal courts)
Original Jurisdiction: courts that hear the case first and determine the facts - the trial court
Only federal court in which trials are held and juries may be impaneled.
Deals with the following types of cases:
Federal crimes
Civil suits under federal law and across state lines
Supervise bankruptcy and naturalization
Review some federal agencies
Admiralty and maritime law cases
Supervision of naturalization of aliens

10. The Structure of the Federal Judicial System
Courts of Appeal
Appellate Jurisdiction: reviews the legal issues in cases brought from lower courts
Hold no trials and hear no testimony
12 circuit courts
U.S. Court of Appeals for the Federal Circuit – specialized cases
Focus on errors of procedure and law

11. The Structure of the Federal Judicial System

12. The Structure of the Federal Judicial System
The Supreme Court
Ensures uniformity in interpreting national laws, resolves conflicts among states and maintains national supremacy in law
9 justices – 1 Chief Justice, 8 Associate Justices
Supreme Court decides which cases it will hear—controls its own agenda
Some original jurisdiction, but mostly appellate jurisdiction
Most cases come from the federal courts
Most are civil cases

13. The Structure of the Federal Judicial System

14. The Structure of the Federal Judicial System

15. Lesson 6.3 The Politics of Judicial Selection

16. The Politics of Judicial Selection
Presidents appoint members of the federal courts with “advice and consent” of the Senate.
Federal judges are confirmed for life terms.
When appointing for the Lower Courts:
Appointments handled through Senatorial Courtesy:
Unwritten tradition where a judge is not confirmed if a senator of the president’s party from the state where the nominee will serve opposes the nomination
Has the effect of the president approving the Senate’s choice
President has more influence on appellate level
The decisions of the appellate courts are more significant than those of the lower district courts, so the president takes a greater interest in appointing to these courts.
At the same time, Senators are in a weaker position to determine who the nominee will be because the jurisdiction of an appeals court encompasses several states.

17. DEMOGRAPHIC CHARACTERISTICS, 2000-2011 (IN PERCENT)
PRESIDENTIAL APPOINTMENTS TO THE FEDERAL JUDICIARY BY SELECTED
DEMOGRAPHIC CHARACTERISTICS, (IN PERCENT)
President
African American
Hispanic
Asian American
White
Women
Men
Barack Obama
22%
11% 8%
59%
46%
54%
George W. Bush 7% 9% 1%
82%
78%
Similarities:
More than half the appointees were white.
The number of Hispanic nominees is roughly similar, within two percentage points.
Asian Americans were the lowest demographic nominated, both under 10 percent.
Differences:
Obama appointed a significantly greater percentage of women than did Bush.
Obama was more likely to appoint racial minority candidates than was Bush
Obama appointed more than Bush in any single minority category, appointing a higher percentage of African Americans, Hispanics, and Asian Americans.

18. The Politics of Judicial Selection
When appointing for the Supreme Court:
Fewer constraints on president to nominate persons to Supreme Court
President relies on attorney general and DOJ to screen candidates
President will usually choose a nominee with the same political views as he.
1 out of 5 nominees will not make it
Presidents with minority party support in the Senate will have more difficulty.
To increase his chances of having his nominee confirmed, the President will:
Consult with the Senate, using senatorial courtesy.
Choose a moderate.
Chief Justice can be chosen from a sitting justice, or as a new member to the Court

19. Free-Response Question
Presidents consider many factors when nominating candidates to the federal courts, and getting their nominees confirmed is often difficult.
Using the chart above, describe ONE similarity between President Barack Obama’s judicial appointments and those made by President George W. Bush.
Using the chart above, describe TWO differences between President Barack Obama’s judicial appointments and those made by President George W. Bush.
Explain why a president’s party affiliation accounts for differences in presidential appointments to the judiciary.
Describe one way a president can increase the chances of having judicial nominations to federal courts confirmed.

20. The Politics of Judicial Selection

21. The Backgrounds of Judges and Justices
Characteristics:
Generally white males
Lawyers with judicial and often political experience
Other Factors:
Generally of the same party and ideology as the appointing president
Judges and justices may not rule the way presidents had hoped they would have.

22. The Backgrounds of Judges and Justices

23. The Backgrounds of Judges and Justices

24. Lesson 6.4 The Courts as Policymakers

25. The Courts as Policymakers
Accepting Cases
Use the “rule of four” to choose cases
If four justices agree to grant review of a case, and the court will Issue a writ of certiorari, a formal document to call up the case.
Supreme Court accepts few cases each year, averaging around 80.
Cases are most likely to be selected are those in which:
Involve civil liberties
Conflict between different lower courts on the interpretation on federal law.
Disagreement between a majority of the Supreme Court and lower-court decisions.

26. The Courts as Policymakers
Accepting Cases (continued)
The Solicitor General:
a presidential appointee and third-ranking office in the Department of Justice
is in charge of appellate court litigation of the federal government
Four key functions:
Decide whether to appeal cases the government lost
Review and modify briefs presented in appeals
Represent the government before the Supreme Court
Submit a brief on behalf of a litigant in a case in which the government is not directly involved

27. The Courts as Policymakers
Making Decisions
Oral arguments heard by the justices
Justices discuss the case
One justice will write the majority opinion (statement of legal reasoning behind a judicial decision) on the case

28. The Courts as Policymakers
Making Decisions (continued)
Dissenting opinions are written by justices who oppose the majority.
Concurring opinions are written in support of the majority but stress a different legal basis.
The majority of cases that reach the courts are settled on the principle of stare decisis, a Latin phrase meaning let the previous decision stand unchanged.
All courts rely on precedent, how similar past cases were decided, as a guide to current decisions.
The Supreme Court is in a position to overrule its own precedents, and it has done so more than 200 times.
The most famous occurred with Brown v. Board of Education (1954), in which the court overruled Plessy v. Ferguson (1896) and found that segregation in the public schools violated the Constitution.
Political ideology – conservative versus liberal – are evident in the decisions of justices.
As such there is a debate amongst the justices over original intent: the idea that the Constitution should be viewed according to the original intent of the framers.

29. Free-Response Question
The United States Supreme Court receives many appeals, but it hears and rules on a small percentage of cases each year. Numerous factors influence the actions of the Court, both in deciding to hear a case and in the decisions it hands down.
Describe the process through which the Court grants a writ of certiorari.
Explain how stare decisis can influence decisions made by individual justices when hearing a case.
Describe a Supreme Court case in which the Court overruled its own precedents.

30. The Courts as Policymakers
Judicial implementation
How and whether court decisions are translated into actual policy, thereby affecting the behavior of others
Must rely on others to carry out decisions
Interpreting population: understand the decision
Implementing population: the people who need to carry out the decision–may be disagreement
Consumer population: the people who are affected (or could be) by the decision

31. Lesson 6.5 The Courts and Public Policy

32. The Courts and the Policy Agenda
A Historical Review
John Marshall and the Growth of Judicial Review
Marbury v. Madison (1803) established judicial review—courts determine constitutionality of acts of Congress
The “Nine Old Men”
The Court was most controversial during the New Deal.
FDR urged Congress to pass dozens of laws to end the Depression.
Conservatives, who viewed federal intervention in the economy as unconstitutional, dominated the Court, and began to dismantle New Deal policies.
FDR proposed a “court-packing plan.” He noted that the average age of the Court was over 70, and urged Congress to added more justices, so he would have more justices who were liberal.
Congress objected, but the plan became irrelevant when two justices began to support the New Deal, and another retired.

33. The Courts and the Policy Agenda
A Historical Review
The Warren Court
Presided by Chief Justice Warren from
Faced many issues including school segregation, the extension of the right to counsel, and protections against unreasonable search and seizure and self-incrimination.
The Burger Court
Presided by Chief Justice Burger.
While conservative, the Court wrote the abortion decisions in Roe v. Wade.
The Court also ordered President Nixon to turn over his White House tapes during the Watergate investigation in United States v. Nixon (1974).
The Rehnquist Court
Presided by Chief Justice Rehnquist beginning in the 1990s.
Mostly conservative.
The Court’s decision in Bush v. Gore (2000) that decided the 2000 presidential election certainly represents a high point of judicial activism.

34. Lesson 6.6 An Assessment of the Courts

35. Understanding the Courts
The Courts and Democracy
Courts are not very democratic.
Not elected
Difficult to remove judges and justices
Marbury v. Madison granted the Courts judicial review: the power of the Courts to declare acts of the president and Congress unconstitutional
Since this, many believe that the courts have become the most powerful branch in the government.
Some believe that the Courts should practice judicial restraint: judges should play a minimal policymaking role
Others believe that the Courts should practice judicial activism: judges should make bold policy decisions and even chart new constitutional ground
Still the other two branches can rein in the power of the federal courts
The President can appoint a judge who shares the same political believes as he.
The Senate can approve a presidential appointment to the Court.
However, there is no guarantee that the person the President appoints and that the Senate approves is going to act in the manner in which the President and the Senate predicted.

36. Free-Response Question
Many of the writers of the Constitution believed that the federal judiciary would be the weakest of the three branches of government. Today, however, many consider the Supreme Court to be the most powerful of the three branches. This is due mainly to the use of judicial review and the theory of judicial activism.
Define “judicial review” and describe a case in which judicial review was used.
Describe “judicial activism.”
Describe TWO reasons the federal courts can be considered undemocratic.
Explain one way in which one of the other branches of the federal government can rein the power of the federal courts.