1. Chapter 15:
The Federal Courts

2. The Nature of the Judicial System
US Courts Are Adversarial
Two parties are in disagreement
Courts decide legality of case
Passive role
Requires others to take initiative to bring case to court

3. The Nature of the Judicial System
Case Types
Criminal law – someone breaks a specific law
Civil law
Various matters not involving criminal activity
Decisions based on
Statutes
Common law precedents

4. The Nature of the Judicial System
Dual Court System
Federal courts
State courts

5. Participants in the Judicial System
Litigants
Plaintiff – the accuser
Defendant – the accused
Case requirements
Actual disputes – not hypothetical ones

6. Participants in the Judicial System
Case requirements
Standing
Serious interest in the case
Sustained injury
Imminent danger of sustaining injury
May include class action suits
Justiciable disputes
Case can be decided on legal basis

7. Participants in the Judicial System
Attorneys
Lawyers
Equality
Access to  growing
Quality of  not so equal

8. Participants in the Judicial System
Interest Groups
Often seek out those with standing to bring case to litigation
File amicus curiae briefs
Influence Court decisions
Additional points of view
Additional information

9. The Structure of the Federal Judicial System
Creation of
Constitution mandates only a Supreme Court
Congress established lower courts
Constitutional Courts
Legislative Courts
Specialized purposes
No power of Judicial Review

10. The Structure of the Federal Judicial System
Jurisdiction
Original
First to hear a case
Usually with a trial
Determine facts of the case
Appellate
Brought on appeal
Do not determine facts
Only determine the legal issues

11. The Structure of the Federal Judicial System
Levels
District Courts
Entry point for most
Original jurisdiction only
Cases
Federal crimes
Civil suits under FEDERAL law
Civil suits between citizens of different states
Et alia

12. The Structure of the Federal Judicial System
Levels
Courts of Appeals
Circuit Courts
Review appeals from
district courts
Heard by
Panels of 3 judges
En banc – all judges
Set precedent for courts in their jurisdictions

13. The Structure of the Federal Judicial System
Levels
The Supreme Court
The top of the system
Functions
Resolving conflicts between states
Maintaining national supremacy of constitutional law
Ensuring uniformity of law
Interpretation
Application

14. The Structure of the Federal Judicial System
Levels
The Supreme Court
Justices
Nine
Traditional number
Not mandated
Selection
Nominated by president
Confirmed by Senate
Life-time tenure

15. The Structure of the Federal Judicial System
Levels
The Supreme Court
Selects which cases to hear
Power of Four
Mostly from appellate courts (federal)
State court appeals must involve a “substantial federal question”

16. The Politics of Judicial Selection
The lower courts
Senatorial Courtesy
Nod of approval
Courts
District – approval from party senator where the POST is
Appeals – approval from party senator where the JUDGE LIVES
Might even make suggestions – Separation of Power???????

17. The Politics of Judicial Selection
The lower courts
Vetting
Competency
Background checks
Other players in selection process
Department of Justice
Sitting judges
Presidential influence
Greatest at appellate level
Less at district level

18. The Politics of Judicial Selection
The lower courts
Confirmation
Used to be swift
Party polarization has hindered this process
Presidents may make recess appointments
Not usual
Term only good for the rest of the Congressional year

19. The Politics of Judicial Selection
The Supreme Court
President
Legacy for the future if vacancies open up
Most influence among the top levels
The Candidates
Keep a low profile
Confirmations
Used to be fairly routine
Now – ideological conflict

20. The Politics of Judicial Selection
The Supreme Court
Trouble
Presidents who
Are backed by a senatorial minority
Have extreme views compared to Senate
If president has only limited time left in office
NOMINEE’S IDEOLOGY IS NOT CONSIDERED VALID REASON TO BLOCK

21. Background of Judges and Justices
No mandated criteria for nomination to the bench
Competence and ethical behavior are considerations

22. Background of Judges and Justices
Demographics
Not representative of the populace
Characteristics
Lawyers
Male (changing)
White (changing)
50s – 60s
Upper middle or upper class
Protestant

23. Background of Judges and Justices
Criteria for Presidential Selection
Partisanship
Ideology
Background Characteristics and Policymaking
Not always easy to predict how a sitting judge will decide based on party

24. Background of Judges and Justices
Background Characteristics and Policymaking
Other factors
Legal interpretations
“extra-legal” factors
Life experiences
Lifetime tenure
Growing inclusiveness
Presence of women judges
Presence of minority judges

25. The Courts as Policymakers
Accepting cases
Justices meet in conference
Conference etiquette
Secret proceeding
Only justices attend
Discuss cases

26. The Courts as Policymakers
Accepting cases
Justices meet in conference
Rule of Four!
Placed on the docket
Issuing a writ of certiorari to lower court
To clear up any uncertainty
Opposing decisions in lower courts

27. The Courts as Policymakers
Accepting cases
Role of solicitor general
In charge of appellate court litigation
Functions
Decides whether to appeal cases
Reviews/edits government briefs
Represent government in Court
Submit amicus curiae on behalf of government

28. The Courts as Policymakers
Process of Decision Making
Hears arguments
Discuss arguments in conference
Tentative vote is discovered
Writing opinions

29. The Courts as Policymakers
Process of Decision Making
Writing opinions
Majority opinion
Winning opinion
Concurring opinion
Agrees with the majority but on different legal standing

30. The Courts as Policymakers
Process of Decision Making
Writing opinions
Dissenting opinion
Losing side
Sometimes issue per curiam decision
No explanation attached
In case of tie – lower court ruling stands

31. The Courts as Policymakers
Basis of Decisions
Stare decisis
Most cases
Let the decision stand
Keep it as was decided by lower court
Rely on precedent
Only Supreme Court can override its own precedents

32. The Courts as Policymakers
Basis of Decisions
Interpretations
Ambiguity in Constitution allows for great leeway
Originalism
Original intent
What was written by the people
at that time
Original meaning
What was meant by people at that time
Constrains the Court
Often dispute original meanings!

33. The Courts as Policymakers
Basis of Decisions
Interpretations
Living Document
Written in flexible terms
To be interpreted as times change
Attitudinal Model
Decisions made on what justices would like as the outcome
Not restricted to
Intentions of framers of Constitution
Precedent

34. The Courts as Policymakers
Implementing Court Cases
Court proclaims its decision
Up to lower courts to actually implement the decision
Judicial Implementation – how decisions are turned into action
Interpreting population
Legal community
Understand and act on
the decision

35. The Courts as Policymakers
Implementing Court Cases
Judicial Implementation – how decisions are turned into action
Implementing population
Public officials must act on the
decision
Do so more often when Court
writes CLEAR opinions
Consumer population
Those who benefit from the new decision

36. The Courts and Public Policy: A Historical Review
Controversies
Cases (policies)
Decisions
Over time
Antebellum
Legitimacy of the national government
Slavery

37. The Courts and Public Policy: A Historical Review
Over time
From Civil War until mid-1930s
National government and the economy
Late 30s – present
Personal liberties
Equality
Social
Political

38. The Courts and Public Policy: A Historical Review
The Marshall Court
Judicial Review
Marbury v Madison
The power to determine
the constitutionality of
Laws
Actions of governments

39. The Courts and Public Policy: A Historical Review
The Warren Court
Liberal leaning
Segregation outlawed
Defending rights of the accused
The Burger Court
Conservative leaning
Strict constitutionalist –
narrow interpretation
of the Constitution

40. The Courts and Public Policy: A Historical Review
The Rehnquist and Roberts Courts
Conservative leaning
Dealing with precedents
Limit
NOT reversing them

41. Understanding the Courts
The Courts and Democracy
Courts are not democratic
Should be protected from political shifts
Not elected
Difficult to remove from office
Elite membership

42. Understanding the Courts
The Courts and Democracy
Courts are not immune to public influence
The judges exist in the world
Read news
Aware of social movements
Public opinion is known and influential

43. Understanding the Courts
The Scope of Judicial Power
Originally thought to be weakest branch
Courts have come to make policy through Judicial Review
Differing philosophies
Judicial Restraint
Adhere closely precedent
Refrain from policymaking
Let legislatures make policy

44. Understanding the Courts
The Scope of Judicial Power
Differing philosophies
Judicial Activism
Take an active role in policymaking
Make bold policy moves
Create new constitutional interpretations
Neither philosophy is exclusive to liberal or conservative courts

45. Understanding the Courts
The Scope of Judicial Power
Political questions
Disagreements between legislative
and executive branches
Maintain legitimacy through avoidance

46. Understanding the Courts
The Scope of Judicial Power
Democratic restraints on the courts
Selection process
Nominated by elected official (president)
Confirmed by elected officials (senators)

47. Understanding the Courts
The Scope of Judicial Power
Democratic restraints on the courts
Congress can overcome declaration
of “unconstitutional” by amending
the Constitution
Statutory construction
The decision of the Court defines the part of the law or act which is unconstitutional
Legislature then rewrites the law to fix the issue

48. The Policy of Incorporation
Selective Incorporation
A constitutional doctrine through which the first ten amendments of the United States Constitution are mandated as binding to the states
Selectively incorporated through
court cases, not all at once
Relying on the “Due Process” clause
of the Fourteenth Amendment

49. The Policy of Incorporation
Reverse incorporation
The Supreme Court takes a state law and makes it part of federal law.
Rare event