1. SCOTUS
Policy Makers

2. How does the Supreme Court operate?
Courts
intro
How does the Supreme Court operate?

3. Independence
Federal Courts

4. Courts Independence Independence
It is critical that the court system be independent of the other branches
It is critical that the court system be insulated from public opinion
This allows the court & the judges to make decisions without worry
They are able to make the best decision, not the popular or politically convenient one

5. Courts Independence Independent from Public Opinion
Appointed instead of elected
Serve life terms
Salaries cannot be reduced
The Supreme Court controls its own docket – it doesn’t have to listen to all cases

6. Courts Independence Not Too Independent from Public Opinion
They rely on others to enforce their decisions
They can be impeached
We do elect those that appoint or confirm the judges
We can pressure Congress not to confirm
We can pass amendments to control what decisions they can make

7. Courts Independence Controlling the Docket
It’s mostly discretionary – they choose what cases
They only hear about 1% of all cases that apply for SCOTUS to review them
They will usually hear cases in which there are disagreements between levels of courts (state & Federal)
They will usually hear cases when there is conflict between two Circuit Courts

8. Courts Independence Political Questions
They will try to avoid “political questions”
They only hear disputes about legal situations, not political ones
The power of SCOTUS rests on its own legitimacy
It needs both sides of the political spectrum to recognize its legitimacy
It needs to be viewed as above the political process

9. Federal Courts
SCOTUS Case Selection

10. Courts Selection Path of a Case
Case starts in a court of original jurisdiction – (state court or District court)
The case can be appealed to the Circuit Court
Circuit Court hears an appeal & rules
The SC Justices review the appeals coming from the Circuits they monitor
The SC Justices issue a writ of certiorari to send the case up for review

11. Courts Selection Litigants Petition for Cert
The petitioner files an outline of the facts & history of the case
They must explain WHY the SCOTUS would want to review their issue & WHY the ruling of the Circuit Court was wrong
Amicus Curiae briefs may also be filed to encourage the court to grant cert
In reality – much of this work is handled by clerks
Each justice gets the petitions from the Circuit Court they are in charge of

12. Courts Selection “At Conference”
Only the 9 justices attend the meeting. Seating is by seniority
Chief Justice prepares a “discuss list” of cases that they will debate the merits of
Any justice can add a case from their Circuit to the discuss list
They decide to issue “writs of certiorari”

13. Judges vote in the open, & try to sway each other
Courts
Selection
Rule of Four
SCOTUS will agree to hear the case if four of the nine justices agree to call it up
Justices will meet in conference, and discuss cases they want to bring up
Judges vote in the open, & try to sway each other
The Rule of Four serves to protect the minority – a critical role of the courts

14. Courts Selection Writ of Certiorari
A formal call for the lower court to “send up a case for review”
The lower court needs to send all the relevant briefs & information up to SC
The justices read all this ahead of oral arguments happening in court
If you’re denied – you get a one sentence order from the Court that gives no explanation

15. Courts Selection Oral Arguments
A typical case gets only one hour before the Supreme Court
The lawyer for each side gets 30 minutes to present their legal arguments
The justices already know all the info from the briefs
The justices spend most of this time asking questions about the arguments to the lawyers

16. SCOTUS Justice Selection
Federal Courts
SCOTUS Justice Selection

17. Courts Justice Selection Federal Judges
All federal judges are appointed by the president
All federal judges must be approved by the Senate
There is more scrutiny given to Supreme Court appointments than to Circuit judges or District level positions

18. Courts Justice Selection Senatorial Courtesy
For practical purposes (save time, not debate every single judge)
When the president is making a lower court appointment, he gives “courtesy” to Senators from his party in that state
He tells the senator who he’s thinking about, and they basically approve or veto the recommendation
In many cases they can even make recommendations of their own
This is tradition & custom – it does not have to be followed

19. The president will get suggestions from the Department of Justice
Courts
Justice Selection
SCOTUS Justices
The president will get suggestions from the Department of Justice
He’s most likely to appoint someone with a similar ideology – that person will make decisions the same way he would
This allows the president’s ideology to have impact on policy for years after he leaves office.
Liberal presidents nominate more liberal judges & conservatives do the same
Doesn’t always work perfectly – judges can move from conservative to liberal

20. Courts Justice Selection Justice Characteristics
Ideology is the single most important factor (ideology not party)
Age – president is more likely to want to pick a younger judge – they can stay on court for a longer time
Demographics – president may consider race, gender, background, region, religion
Experience – a judge with a good track record is more likely to be confirmed

21. Courts Justice Selection Congress Characteristics
President must consider the partisanship of Congress
Opposite party in charge may be mean the president picks a moderate as a compromise
The Senate usually confirms the president’s choice – they have only rejected 29 nominations all time

22. Judges don’t have political party allegiances – they have ideologies
Courts
Justice Selection
Political Party
Judges don’t have political party allegiances – they have ideologies
The president needs to adjust his pick based on which party is in control of the Senate
The president needs to consider how HIS party will react to his pick. He needs to keep them happy

23. Courts Justice Selection Confirmation Hearing
The president’s nominee is sent before the Senate Judiciary Committee
They will look at the voting record of the justice
They will ask about the judge’s philosophy and stance on
controversial issues
This is called “vetting”
The Senate Judiciary Committee will make a recommendation to the Senate to approve or deny the appointment

24. Federal Courts
Opinions

25. A judge can sign on to any majority, concurring, or dissenting opinion
Courts
Written Opinions
Writing Opinions
After hearing oral arguments in a case, the judges will initially “vote” on the result
The Chief Justice will assign one person from the winning side to write the majority
They will spend time trying to convince their peers to “sign on” to the opinion
People that have issues with the majority opinion can choose to write a dissenting opinion or a concurring opinion
A judge can sign on to any majority, concurring, or dissenting opinion

26. Courts Written Opinions Majority Opinion
One justice who was on the side with the most “votes” writes the majority
They announce the official decision of the court which can serve as a precedent
They need to explain the constitutional reasons for their decision
After writing, they will give it to the other justices to try to get them to sign it.
They’ll write to try to persuade their fellow judges to sign on

27. They explain why they think the majority opinion is incorrect
Courts
Written Opinions
Dissenting Opinion
One justice who was on the side with the fewest “votes” writes in dissent
They explain why they think the majority opinion is incorrect
They will also circulate their writing and try to get their fellow justices to sign on
The dissent also provides important legal arguments and can serve as the basis for legal arguments in the future

28. Anybody can write a concurring opinion, as many as want to
Courts
Written Opinions
Concurring Opinion
A justice who agreed with the decision of the court but didn’t agree with the arguments of the majority can write a concurring opinion
Anybody can write a concurring opinion, as many as want to
The concurring opinion also provides important legal arguments and can serve as the basis for arguments in the future

29. Federal Courts
Today’s SCOTUS

30. Courts Today’s SCOTUS Supreme Court Today
There’s a close balance between liberals and conservatives on the court
It’s also pretty balanced between younger and older judges
Three women is the most women to have ever served on the Court at once
They make $251,000 & Chief Justice makes $263,000

31. Associate Justice
Samuel Alito
67 years old
(George W Bush)
Associate Justice
Neil Gorsuch
50 years old
(Trump)
Associate Justice
Elena Kagan
57 years old
(Barack Obama)
Associate Justice
Sonya Sotomayor
63 years old
(Barack Obama)
Chief Justice
John Roberts
63 years old
(George W Bush)
Associate Justice
Ruth Bader Ginsburg
84 years old
(Bill Clinton)
Associate Justice
Anthony Kennedy
81 years old
(Ronald Reagan)
Associate Justice
Clarence Thomas
69 years old
(George HW Bush)
Associate Justice
Steven Breyer
79 years old
(Bill Clinton)

32. Courts Today’s SCOTUS Supreme Court Today
Six justices are Catholic, three are Jewish
(not reflective of USA)
They are all from Harvard or Yale
(not reflective of USA)
4 from NY, 2 from CA, one from NJ, Georgia, and Colorado

33. Courts SCOTUS Today Kennedy is called the “Swing judge”
The conservative block
Almost always votes together
The liberal block
Almost always votes together
His vote is the most important on many issues
RIP SCALIA

34. Bigly Ideas
Policy Makers

35. Courts Wrap Up Independence of SCOTUS Writ of certiorari
Factors in judge selection
Opinions
Focus on these things: