1. Chapter 14

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3. Judicial Policymaking  Judges confront conflicting values in cases before them  Some courts, such as the Supreme Court, make fundamental policy decisions  Decisions become precedent for similar cases  Court decisions can, therefore, undo work of elected majorities 3

4. National Judicial Supremacy  Supreme Court--- only court defined by Article III, Section 1 of the Constitution  Congress given power to create national court system  Judiciary Act of 1789 created system of federal courts separate from state courts  In early years of Republic, not particularly powerful 4

5. Chief Justice John Marshall 5

6. Judicial Review of the Other Branches  Constitution does not speak to question of “who should prevail?” in conflict between different branches of government  In Marbury v. Madison (1803), Supreme Court established power of judicial review  Ruled that act of Congress authorizing Supreme Court to issue orders against government officials unconstitutional 6

7. Judicial Review of State Government  In 1796, Supreme Court ruled that a Virginia law canceling a debt to a British creditor violated U.S. Constitution's Supremacy Clause  Virginia law therefore nullified  National supremacy requires Supreme Court to impose uniformity of national laws 7

8. The Exercise of Judicial Review  The components of judicial review:  Federal courts can declare national, state, and local laws unconstitutional  National laws or treaties supreme when conflict with state or local laws  Supreme Court final authority on meaning of Constitution 8

9. The Exercise of Judicial Review  Is judicial review undemocratic since federal judges appointed?  Federalist No. 78 saw judicial review as barrier to legislative oppression  Constitutional amendments and impeachment means to correct judicial errors  However, this power does mean judges can operate counter to majoritarian rule 9

10. The Organization of Courts  U.S. has complex court system  Individuals fall under jurisdiction of both national and state courts  Litigants file nearly all (99%) of cases in state courts  Volume of state cases increases about 1% a year, mostly contract disputes 10

11. Figure 14.1 The Federal and State Court Systems, 2008-2009 11

12. Some Court Fundamentals  The government prosecutes criminal cases, or violations of penal code  Some crimes common to all states, others specific to individual state or a few states  Maintaining public order largely a state or local function  Federal criminal cases related to activities that fall under powers of national government  Civil cases involve disputed claims to something of value 12

13. Procedures and Policymaking  Most cases never go to trial  Prosecutors may plea bargain  Parties to a civil case may settle or one may abandon efforts  Cases that go to court end in an adjudication  Written reasons supporting a judicial decision called opinions 13

14. Judicial Policymaking  Judges make policy two ways:  Rulings where no legislation exists make common, or judge-made law  Judicial interpretations of legislative acts called statutory construction  With or without legislation, judges look to relevant opinions of higher courts to guide them 14

15. The Federal Court System  Organized in three tiers, as a pyramid  Litigation starts with U.S. District Courts  Appeals then go to the U.S. Courts of Appeals  Final tier is Supreme Court  Courts of Appeals and Supreme Court generally review only cases already decided in lower courts 15

16. The Federal Court System 16

17. The U.S. District Courts  Each state has at least one federal district court  A total of 94 federal district courts  Entry point for federal court system  U.S. magistrate judges assist district judges but lack independent judicial authority 17

18. Sources of Litigation  Federal criminal cases  Civil cases alleging a violation of national law  Civil cases brought against the U.S. government  Civil cases between citizens of different states if disputed amount exceeds $75,000 18

19. The U.S. Courts of Appeals  Twelve regional U.S. courts of appeals  Thirteenth court, U.S. Court of Appeals for the Federal Circuit, is not a regional court  Each appeals court hears cases from a geographical area, or circuit  All cases resolved in U.S. district court or decisions of federal administrative agencies can be appealed 19

20. Geographic Boundaries of Federal District Courts and Circuit Courts of Appeals 20

21. Appellate Court Proceedings  Rulings based on rulings made and procedures followed in trial courts  If ruling incorrect or proper procedure not followed, may order new trial  Most cases resolved by panel of 3 judges  Judges review written briefs  May or may not schedule oral arguments 21

22. Precedents and Making Decisions  Written judgment of appellate courts serve as precedent for subsequent cases  Judges make policy to extent they influence other courts  Stare decisis : Let the Decision Stand.. provides continuity and predictability to the law  Rulings designed to correct errors in district court proceedings and to interpret the law 22

23. Uniformity of Law  Appellate courts try to harmonize decisions in region when district judges make conflicting rulings  However, courts of appeals not bound by decisions of other circuits  Supreme Court avenue for resolving conflicting decisions by different circuit courts of appeals 23

24. The Supreme Court  Supreme Court strives to achieve a just balance among the values of freedom, order, and equality  Flag burning as a form of political protest  School desegregation  Race as a factor in university admissions 24

25. The Justices of the Supreme Court of the United States 25

26. A Supreme Court of Its Own  The United Kingdom latest democracy to establish a supreme court  Prior to October, 2009, a committee from the House of Lords exercised judicial functions  New court independent of Parliament  Signals an increasing federalization of the United Kingdom 26

27. UK Supreme Court 27

28. Access to the Court  Idea that anyone can take a case to the Supreme Court theory, not fact  Court’s cases come from two sources:  Original jurisdiction established by Article III, Section 2, of the Constitution  Appellate jurisdiction from U. S. courts of appeals or a state’s court of last resort  Cases from state courts must have exhausted appeals in their state system and deal with a federal question 28

29. The Supreme Court’s Docket  Supreme Court hears fewer than 100 cases from the more than 8,000 submitted each year  Requests made by petition for certiorari  Rule of four unwritten requirement  Business cases substantial portion of docket  Justices meet twice a week to vote on previously argued cases and consider new cases 29

30. The Solicitor General  Represents the national government before the Supreme Court  Third-ranking position in Department of Justice  Duties include determining whether to appeal a lower court’s decision, reviewing briefs for appeals, and deciding whether or not to file amicus curiae briefs in any appellate court 30

31. The Solicitor General  Position has two roles:  Advocate for president’s policy preferences  Defend the institutional interests of the national government  Traditionally recommends only cases of general importance  Some call position “the tenth justice” 31

32. Decision Making  Once review granted, attorneys submit written briefs --they are definitely not brief!  Oral arguments held two to three hours a day, five to six days per month from October through April  After arguments heard, justices hold conferences to discuss cases and vote  These meetings limited to the nine justices 32

33. Journey of a Lifetime 33

34. Judicial Restraint and Judicial Activism  Concept of judicial restraint means decisions based on legal doctrines, prior decisions, and deference to elected officials  Judicial activists maintain judges should use powers to promote judges’ preferred social and political goals  Terms not limited to a particular ideology 34

35. Figure 14-3 Measuring Judicial Activism 35

36. Judgment and Argument  Voting outcome is called the judgment  Justices in the majority draft opinion setting out reasons for decision  If all agree, decision is unanimous  Justices who agree but for different reasons than listed in the majority opinion may file a concurring opinion  Justices who disagree may file a dissenting opinion 36

37. The Opinion  The chief justice or most senior justice in the majority decides which justice will write majority opinion  Draft opinion circulated among all justices for criticisms and suggestions  Justices may choose to change initial vote during this time  Dissent happening more frequently in recent years 37

38. Strategies on the Court  Cases that reach the Supreme Court require difficult choices  Ideologies reflect values; some justices have tried to encourage appointment of like- minded colleagues  Liberals value freedom over order and equality over freedom  Conservatives choose order over freedom and freedom over equality  Intellectual ability also affects debates 38

39. The Chief Justice  Forms docket  Directs Court’s conferences  May also serve these roles:  Generating solidarity within the group  Intellectual leadership  Policy leadership 39

40. Judicial Recruitment  No formal requirements for appointments to federal courts  President nominates; Senate must confirm  Congress sets compensation: 40 Chief Justice of the Supreme Court $223,50 0 Associate Supreme Court justices $213,90 0 Courts of Appeals justices$184,50 0 District judges$174,00 0 Magistrate-judges$160,08 0

41. State Judicial Selection  Governor appoints judges in more than half of the states  Some must then face retention elections  Partisan election  Nonpartisan election  Legislative election  In some states, must be confirmed in legislature 41

42. The Appointment of Federal Judges  Appointments for life  Presidents look for judges who favor their policies  Office of White House Counsel helps identify candidates  Justice Department assists with screening 42

43. The “Advice and Consent” of the Senate  For district and appeals court, senator from president’s party must approve  Senatorial courtesy  Or state’s House delegation, if no senator from president’s party  Recent presidents have tried to appoint more women and minorities 43

44. Senate Confirmation  Senate Judiciary Committee conducts hearings for each judicial nominee  Confirmations have become ideological battleground  Hearings focus on judicial policy and approach towards interpretations of the law  Filibusters sometimes used to prevent appointments 44

45. The American Bar Association  By custom, ABA screens judicial candidates  Well qualified  Qualified  Not qualified  George W. Bush did not use, believing group too liberal  President Obama restored use 45

46. Recent Presidents and the Federal Judiciary  While recent presidents have appointed more diverse judiciary, ideology rules  Carter’s appointments most liberal  Reagan and George W. Bush-appointed judges most conservative  Ideological appointments easier when president’s party controls Senate 46

47. Appointment to the Supreme Court  Attract extreme public scrutiny  Since 1900, six appointments have failed to be confirmed by Senate  Most important factor: partisan politics  Most nominees have prior judicial experience  “Lame duck” presidents frequently unsuccessful 47

48. Justice Elena Kagan Joining the Supreme Court 48

49. Ideological Shifts  President George W. Bush nominated two Supreme Court justices, John Roberts and Samuel Alito  As a result, ideology of court more conservative  Justice Kennedy now “swing vote”  President Obama nominated Sonia Sotomayor and Elena Kagan 49

50. Figure 14-4 A More Representative Court 50

51. The Consequences of Judicial Decisions  Judicial rulings small percentage of legal dispositions  Most cases end in plea bargain or no court judgment  About 10 percent of civil and criminal cases go to trial  Many cases appealed to delay day of reckoning 51

52. Supreme Court Rulings: Implementation and Impact  Others must implement Supreme Court decisions  Ambiguous opinions affect implementation  Desegregation and school prayer  Roe v. Wade generated (and continues to generate) heated response from public 52

53. Public Opinion and the Supreme Court  Even though not elected, ideologically balanced Court and public sentiment eventually align in most cases  One exception: school prayer  Poll in 2009 showed six in 10 Americans more likely to approve than disapprove of job Supreme Court doing 53

54. The Courts and Models of Democracy  Majoritarian model: courts should follow the letter of the law and defer changes to elected representatives  Pluralist model: courts are policymaking branch of government and have legitimate right to consciously advance group interests  Class action suits  State court rulings based on either federal law, state law, or both 54

55. The Right to Die  Supreme Court rulings in Washington v. Glucksberg and Vacco v. Quill that U.S. Constitution does not protect a right to assisted suicide  States allowed to make own laws  Silence in Terry Schiavo case let stand lower court’s ruling  Other industrial democracies have decriminalized right to die 55