1. Unit IV: Institutions
Ch. 16 – The Judiciary

2. I. The Development of Federal Courts
Introduction:
Only in the US do judges play such a large role in policy- making through the power of judicial review: the right to determine the constitutionality of acts of government
Two views of interpreting the Constitution:
Judicial restraint: strict constructionist philosophy that the courts should follow the original intent of the Founders – should only judge and apply those rules that are stated or clearly implied by the wording of the Constitution
Judicial activism: liberal constructionist philosophy that the courts should look at underlying principles of the Constitution and should take an active role in solving society’s problems
Does NOT mean political liberals are liberal constructionists and political conservatives are strict constructionists.

3. Three Historical Eras in the Evolution of the Federal Courts
Founders’ view:
Judges interpret the law and do not make policy, although they expected the Court to have the power of judicial review
Federalist 78 (Hamilton) argued that the Courts were the least dangerous branch, although the federal judiciary has evolved towards judicial activism
Era 1: National Supremacy and Slavery ( )
Marshall Court claimed the supremacy of the federal government and the Court’s power of judicial review
Marbury vs. Madison, 1803 established the power of judicial review
McCulloch vs. Maryland, 1819 declared the supremacy of federal law over state law and upheld the concept of implied powers
Gibbons v. Ogden, 1824 confirmed the supremacy of the federal government in its ability to regulate commerce
Chief Justice Taney and the Dred Scott decision (1857) reversed trend of the Marshall Court and, in advocating for state’s rights and the ruling that blacks were not citizens of the US, declared unconstitutional federal law prohibiting slavery in the northern territories and was a cause of the Civil War

4. Era 2: Government and the Economy (1865-1937)
Era 3: Government and Political Liberty (1938-present)
Conflict between whether the economy could be regulated by state and federal governments
Private property rights upheld and protected by the 14th Amendment
Judicial activism emerged in the 1880s-90s as cases arose based on 14th Amendment and protection of property rights
Both the 14th and 15th Amendments were narrowly applied to blacks
Court shifted attention to personal liberties and becomes active in defining rights
1990s: shift to state sovereignty and imposes limits on supremacy of the federal government
US v. Lopez, 1995

5. II. The Structure of the Federal Courts
Only the Supreme Court is created by the Constitution (Article III)
A. Congress created 2 types of lower federal courts: Constitutional and Legislative
Constitutional courts (“regular”)
Article III creates the Supreme Court and also gives Congress the power to create “inferior” (lower) federal courts.
Judges in these courts hold life terms. (Know Hamilton’s rationale for this from Federalist 78!)
Three levels of constitutional courts:
District Courts, Courts of Appeals (Circuit Courts), and the Supreme Court
Day 2

6. 1) The District Courts
Federal trial courts in which 90% of the federal cases are heard
Created by Congress in the Judiciary Act of 1789
There are 94 district courts: each State has at least one plus D.C. and Puerto Rico with 677 judges presiding
More populous States have multiple districts with at least 2 judges assigned to each one, but many have several judges
Cases are tried by a judge and a jury
Use grand juries to issue indictments, but a petit jury decides outcome
Jurisdiction: original
May try civil, criminal, or constitutional cases
Decisions may be appealed to Circuit Courts of Appeals

7. 2) The Circuit Courts of Appeals
Created by Congress in 1891 to relieve the Supreme Court’s docket of appeals from district courts
12 courts of appeals: 11 judicial circuits plus 1 for D.C.
179 judges on the circuit plus 1 Supreme Court justice assigned to each of the appellate courts
Cases are usually heard by a panel of 3 judges, except when all judges of a Circuit Court hear a case “en banc”
Jurisdiction: appellate (appeals from District Courts and regulatory commissions)
Decisions may be appealed to the Supreme Court

10. Types of Federal Courts
2. Legislative (“special”) courts, also called Article I courts:
Created to carry out the enumerated powers of Congress
Judges in these courts hold fixed terms of office
Examples: U.S. Court of Appeals for the Armed Forces, U.S. Court of Appeals for Veterans Claims, U.S. Court of Federal Claims, U.S. Tax Court, and territorial courts

11. B. Selecting Judges
Appointed by the president with the “advice and consent” of the Senate.
Article III states they shall hold their offices “during good behavior” (for life)
They can be impeached and removed by Congress (rare)
Compensation: set by Congress, cannot be lowered during judges’ terms of office.
2010: District Court - $174,000
Courts of Appeals - $184,500
Supreme Court - $213,900 (C.J. $223,500)

12. C. Factors Affecting Selection of Federal Judges
Senatorial Courtesy (district courts)
Senate Judiciary Committee
Senate: majority vote needed to confirm nominees
Political party
Diversity: gender and race
Age: life terms means judges will often outlive or outlast the presidents that appointed them. Presidential influence continues then, even after they leave office
Ideology: the “litmus test”
Presidents try to appoint people of similar philosophy.
Can also affect the decision of a judge to retire.
ABA consideration (used by Judiciary Committee)
Nominees “paper trail”
Number of judges: Congress can increase or decrease the number of courts and judges.
Nominations to know:
Robert Bork (“Bork Battle”), Reagan
Clarence Thomas (“Thomas Tangle”), Bush 41
David Souter (“Souter Solution”), Bush 41
Harriet Miers, Bush 43 (Alito solution)

13. As of May 31, 2013: http://prospect

16. D. Federal Attorneys Attorney General:
Appointed by president with Senate consent
Head of Justice Dept.
Solicitor General:
Represents U.S. government in Supreme Court
Decides which cases the federal government will appeal to the Supreme Court
Decides the federal government’s position in these cases
U.S. Attorneys
At least one for each District Court (94)
Prosecutes federal criminal cases before the District Courts and Courts of Appeals; represents US gov in civil cases
Appointed by the president for 4-year terms. Key patronage positions
Senatorial courtesy applies

18. III. Jurisdiction of the Federal Courts
Dual system of courts: federal and state courts, reflective of federalism
Jurisdiction is the authority of a court to hear a case
Federal courts hear cases based on:
Subject matter (federal-question cases):
Interpretation & application of Constitution, federal statute or treaty
Question of admiralty law
Parties involved (diversity cases):
U.S. or its officers
Ambassadors, consuls of foreign gov
States suing another State, resident of another State, a foreign gov or its subjects
Citizen of one State suing another State’s citizen
A U.S. citizen suing a foreign gov or its subjects
All cases not heard by the federal courts are heard in States’ courts

19. Types of Jurisdiction Exclusive Jurisdiction:
Case can only be heard in a federal court
Concurrent Jurisdiction:
Case may be heard in either federal or State court
Original Jurisdiction:
The court where the case is first heard
District courts only have original jurisdiction
Appellate Jurisdiction:
A court that hears the case on appeal from a lower court
The appellate court can uphold, overrule, or modify the decision from the lower court
Courts of Appeals only have appellate jurisdiction
Supreme Court can exercise both original and appellate jurisdiction

20. IV. Getting to Court
Only those with standing may challenge a law or government action. (Only one who has sustained “injury” may bring a case to court)
Types of law:
Statutory: deals with written statutes (laws)
Common:
Based on a system of unwritten law
Unwritten laws are based on precedents.
Judges rely on the principle of stare decisis
Criminal: violations of the criminal code
Civil: concerns disputes (torts) between two parties, rather than against society
Writ of mandamus, injunctions, class action lawsuits, breach of contract, slander
Day 4

21. V. The Supreme Court Original, in cases involving:
A. Background
B. Jurisdiction
Only court mentioned in the Constitution
8 associate justices, 1 Chief Justice
Set by Congress
Court of last resort
Key powers:
Judicial review (Marbury)
Power to interpret broadly-worded laws of Congress and the Constitution
Power to overrule earlier S.C. decisions (i.e.: Brown v. Board overturned ??)
Original, in cases involving:
States
Ambassadors
Appellate, in cases from
Courts of Appeals
State supreme courts
Cases from appellate jurisdiction are far more numerous than from original jurisdiction

22. C. How Cases Reach the Supreme Court
SCOTUS controls its own docket
Thousands of requests are made, relatively few are granted
Cases denied for various reasons: case lacks a substantial federal issue, party lacks standing, Court agrees with a lower court, cases is a political “hot potato”
Rule of 4: In order for the Court to hear a case, 4 justices must agree to do so.
A party files a petition for a writ of certiorari, which are screened by clerks and reviewed by justices on the rule of 4
When justices accept a case, they can ask for more information and oral arguments, or decide case based on attorneys’ briefs. Some decisions are rendered with a per curiam opinion.

25. D. The Supreme Court at Work
Terms: 1st Monday in October through end of June
Hear cases Mon-Wed (quorum of 6)
Oral Arguments:
Justices hear 30 min. oral arguments from several cases over a 2-week period, then recess for 2-weeks to consider cases
Briefs are filed prior to oral arguments, amicus curiae can also be filed
Friday Conferences:
Chief Justice presides and speaks first, indicating his intention, then, in order of seniority, the other justices state their views

26. 6. Types of Opinions:
7. Assigning and Politics of Opinions
Unanimous
Majority opinion is the Court’s decision and rationale
Creates a precedent for future cases (stare decisis)
Dissenting opinion are those of the judges who disagree with the majority
May be used in the future to create new precedent
Concurring opinions are those that agree with the majority, but add points to it
Assigning the opinion is a key power of the CJ – enables him to get the right “slant” on an issue
Opinion must structure the argument so as to keep the support of at least 4 other justices

27. Voting blocs on the current Supreme Court
Liberals: 1. Elena Kagan (Obama, 2010, b.1960) 2. Ruth Bader Ginsburg (Clinton, 1993, b.1933) 3. Stephen Breyer (Clinton, 1994, b. 1938) 4. Sonia Sotomayor, (Obama, 2009, b. 1954) Conservatives: 1. John Roberts (Bush 43, 2005, b. 1955) 2. Antonin Scalia (Reagan, 1986, b. 1936) 3. Clarence Thomas (Bush 41, 1991, b. 1948) 4. Samuel Alito (Bush 43, 2006, b. 1950) Swing: 1. Anthony Kennedy (Reagan, 1987, b. 1936)
Seated, from left are: Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony M. Kennedy, and Associate Justice Ruth Bader Ginsburg. Standing, from left are: Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito Jr., and Associate Justice Elena Kagan.

29. VI. The Power of the Federal Courts
A. The Power to Make Policy:
By interpretation
By extending the reach of existing law
By designing remedies
Measures of power:
Judicial review
not following stare decisis (precedent)
Determining political questions (Baker v Carr, 1962)
Kinds of remedies imposed
Sweeping orders from Constitution or interpretation of law
Tues. 2/15

30. B. Judicial Activism C. Judicial Restraint
Philosophy that the courts should take an active role in solving society’s problems
Courts should uphold the “guardian ethic”
Examples:
Brown v. Board, 1954
Texas v. Johnson, 1989 and U.S. v. Eichmann, 1990
U.S. v. Lopez, 1995
Clinton v. NY, 1998
Bush v. Gore, 2000
Atkins v. VA, 2002
Lawrence v. Texas, 2003
D.C. v. Heller, 2008
Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems.
Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers.
Courts should merely interpret the law rather than make law.
Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted. (Originalism)

31. From “In Defense of Judicial Activism” – D. Root
Since joining the United States Supreme Court in 1986, Associate Justice Antonin Scalia has emerged as perhaps America's foremost champion of judicial restraint, the idea that judges should defer to the will of legislative majorities, striking down only those laws that unequivocally run afoul of specifically enumerated constitutional rights. For instance, in his dissent in Lawrence v. Texas (2003), where the majority nullified a state law banning homosexual activity, Scalia argued that the Texas legislature's "hand should not be stayed through the invention of a brand-new ‘constitutional right' by a Court that is impatient of democratic change." Indeed, "it is the premise of our system that those judgments are to be made by the people, and not imposed by a governing caste that knows best."Look up Scalia's dissents in cases as different as Planned Parenthood v. Casey (1992), where the majority upheld abortion rights, or Boumediene v. Bush (2008), where the Court recognized habeas corpus rights for enemy combatants, and you'll find similar arguments. As Scalia likes to say, when the Constitution is vague or unclear, the courts should let the people, via their elected representatives, have their way.
Reason.com

32. D. Historical Developments
20th Century (before 1937): liberals complained about the conservative Court being too activist when it struck down reform-minded laws (minimum wage, banning child labor…)
FDR’s “court packing” attempt (1937) forced the Court to accept New Deal legislation
Now, conservatives complained about the liberal Court being too activist, especially the Warren Court ( ).
Rights of the accused (Miranda v AZ, 1966)
Civil Rights (Brown v Board, 1954)
Civil Liberties (Engel v. Vitale, 1962)
Political Issues (Baker v. Carr, 1962)
The Burger Court ( ) was less activist than the Warren Court, but still upset conservatives with decisions like Roe v. Wade, 1973 and UC Regents v. Bakke, 1978
Full circle: Rehnquist Court ( ) was accused by liberals of being too activist when it overturned liberal precedents:
US v. Lopez, 1995
Bush v. Gore, 2000
U.S. v. Oakland Cannabis Buyers Cooperative, 2001
Similar views about Roberts Court (2005-present): DC v. Heller, 2008

33. VII. Checks on Judicial Power
Courts can make decisions, but cannot enforce them. State and local governments may not carry it out.
Presidential appointment of judges
Stare decisis
Existing laws
The Constitution
Public opinion
Congress:
Senate confirmation of judges
Impeachment and removal
Increasing the number of judges and courts
Passing Constitutional amendments-Court cannot strike down something as unconstitutional if it’s in the Constitution. (Civil War Amendments – overturned Dred Scott, 16th Amendment allowed for income tax struck down by the Court)
Legislation
Determining jurisdiction of the courts