3. Seated left to right: Justice Ruth Bader Ginsburg, Justice Anthony M
Seated left to right: Justice Ruth Bader Ginsburg, Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Justice Clarence Thomas, Justice Stephen G. Breyer, Standing left to right: Justice Elena Kagan, Justice Samuel Anthony Alito, Jr., Justice Sonia Sotomayor, Justice Neil Gorsuch

5. 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)

6. 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.

7. Inside The Supreme Court Building

8. The Federal Judicial System
Article III (Constitutional)
Versus
Article I (Legislative)
Courts
Original Jurisdiction
The authority of a court to hear a case “in the first instance”
Appellate Jurisdiction
The authority of a court to review decisions made by lower courts

9. 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

10. 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

11. The Federal Court System
The Judiciary Act of 1789
Established the federal court system by dividing the country into federal judicial districts, creating district courts and courts of appeals
District Courts
94 across the country and US territories
89 throughout the states according to population distribution
1 each in territory
----D.C.
----Puerto Rico
----Guam
----US Virgin Islands
----Mariana Islands

12. Courts of Appeals (aka Circuit Courts)
13 across country
12 hear appeals from district courts
1 hears appeals from
Special courts like claims court, tax court, etc
Federal agencies like Office of Patents and Trademarks, Civil Service Commission, etc

14. The Eleven U.S. Circuit Courts of Appeal

15. Appointed by president
Advisors recommend candidates
Professional background
Political/social views
Collegiate career
Confirmed by Senate
Judiciary committee holds hearings
Professional background
Political/social views
Simple majority vote
Life terms
Death
Resignation/retirement
Impeachment
Balance rights of individual vs. common good
Federal judges are appointed by the president and confirmed by the Senate, this is an example of which principle of government?

16. United States Supreme Court
Judicial Review
Power to overturn any Act of Congress or executive action the Court deems unconstitutional
Is it in the Constitution? Not specifically stated; however, the Constitution says the Court shall “interpret the law”
Established by Marbury v Madison (1803)
Facts of the case: Marbury appointed to federal judgeship by outgoing President John Adams. New President Thomas Jefferson tells Secretary of State Madison NOT to deliver letter of appointment (Marbury can’t take his new job)

17. Marbury sued in SCOTUS citing right to do so in Federal Judiciary Act of 1789
Justices considered both facts of case and law in question
SCOTUS issued opinion:
Marbury was legally appointed as federal judge and Secretary of State Madison should have delivered the letter BUT the part of the Federal Judiciary Act of 1789 that said the USSC would hear this type of case is unconstitutional.
The Constitution lists specific types of cases that SCOTUS has original jurisdiction over. This was not one of them. SO, because that part of law was unconstitutional, Marbury shouldn’t have sued in SCOTUS nor do they have authority to make Madison deliver the letter

18. The Supreme Court & How it Operates
The Powers of
the Chief Justice
Appointed by the president upon confirmation by the Senate
Responsible for assigning judges to committees, responding to proposed legislation that affects the judiciary, and delivering the annual Report on the State of the Judiciary
Which Cases Reach
the Supreme Court?

19. The Supreme Court & How it Operates
The Role of the Law Clerks
The number of clerks has increased over time, leading to longer and more elaborate opinions. The clerks for the nine Supreme Court Justices play a key role in the process. They are chosen by each justice. Clerks do the initial screening of petitions. The clerks of the justices participate in a pool in which they divide up the cases and write a single memorandum about each case that is sent to the justices. There is debate over how much influence clerks have on Court decisions

20. The Supreme Court & How it Operates
The Solicitor General
Amicus Curiae Briefs
Oral Arguments
Behind the Curtains: The Conference
On the federal level, the job of prosecution
belongs to the
94 U.S. Attorneys.
the Attorney General.
the Solicitor General
Brief is filed by an individual or organization to present arguments in addition to those presented by the immediate parties to a case.
Increasingly, briefs are used to counter the positions of the solicitor general and the government.
Acting Solicitor General, Neal Katyal.

21. Conservative presidents = conservative justices
Justices are appointed for life terms
Why it matters!!
Conservative presidents = conservative justices
Liberal presidents = liberal justices
Justices serve for years
Justices interpret the Constitution; set precedent
Those precedents affect all Americans

22. A day in the life . . .
Calendar
Term: first Monday in October – end of June
Sittings: 2-wk sessions when Justices hear cases then retire to decide opinions
Selecting cases
Original jurisdiction cases—must hear these
State governments vs. state governments
A Foreign representative is a party in a case

23. Appellate jurisdiction cases:
Justices choose to hear these cases
1. Must deal with a federal or constitutional issue Must impact a majority of citizens
“Rule of Four”—four of the nine justices must agree to hear the individual case out of the 1000s of cases appealed to them.

24. Case is on the docket (a court’s schedule or calendar)
Briefs are submitted—written summary of each lawyer’s side of the case
Justices study lower court proceedings and briefs
Oral arguments
Each side gets 30 minutes to argue
Justices may ask questions
Deliberations
Chief Justice summarizes case and main point
Group discussion, each presents views
Justices vote—simple majority “wins”

25. The Opinions of the Court
Opinions issued Written statement explaining ruling and reasons for reaching that decision
Majority opinion: “winning” decision, sets precedent
Concurring opinion: agree with majority opinion but for different reasons
Dissenting opinion (minority opinion): disagree with majority opinion

26. JUDICIAL ACTIVISM: the Judicial branch is an equal
JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?
JUDICIAL ACTIVISM: the Judicial branch is an equal
partner with the Legislative and Executive and
should be actively involved in interpreting and
applying laws. Strong belief in judicial review
JUDICIAL RESTRAINT: the Jud branch should let the Leg and Exec branches set policy and only get involved if that policy is a flagrant violation of Constitution. Not a strong belief in judicial review.
*NEITHER VIEW IS LIBERAL OR CONSERVATIVE*

27. Another Route to Supreme Court
State Supreme
Court
Court of Appeals
State Court
of Appeals
District Court
Superior Court

29. The Supreme Court & How it Operates
Opinions
Majority
Dissenting
Concurring
Circulating Drafts
Releasing Opinions to the Public
After the Court Decides
Sometimes remands the case
Uncertain effect on individuals who are not immediate parties to the suit
Decisions are sometimes ignored
Difficult to implement decisions requiring the cooperation of large numbers of officials
Dissenting opinions are written when a justice disagrees with the majority's conclusion and its reasoning.
Concurring opinions are written when a justice agrees with the majority's conclusion but not the reasoning

30. Factors influencing the Court
Constitution—fundamental law of US
Precedent—are there past similar cases
Intent—of the Constitution and law(s) in question
Social values—what is the current view of most Americans (will of the people)
Personal judicial philosophy—to what extent should justices become involved in setting policy

31. Amend the Constitution!!!!!
What happens if the Supreme Court rules on a case
that the majority of the country and lawmakers are
against?
Do we just have to live with it?
Amend the Constitution!!!!!