1. The Federal Judiciary »Text chapter 15 …aka…

2. The Federal Judiciary n Article III of the Constitution defines the dual US Court System United States Court System National (FEDERAL) Court State Court

3. The Federal Judiciary n Each of these systems has its own jurisdiction (authority to hear certain cases) n We’re only worried about FEDERAL COURTS

4. The Federal Judiciary n Types of jurisdiction: n ORIGINAL JURISDICTION: the authority to hear cases for the first time n In the federal court system, district courts and the Supreme Court have original jurisdiction in a limited number of cases (e.g., a suit against the federal government)

5. The Federal Judiciary n APPELLATE JURISDICTION: the right to hear cases that review or appeal the decision of a lower court (the second [or more] time) n District Courts of Appeal and the Supreme Court have appellate jurisdiction.

6. The Federal Judiciary n CONCURRENT JURISDICTION: some kinds of cases can be tried in either the federal system or the state system.

7. Structure of the Judiciary n The federal judiciary consists of constitutional courts and legislative courts.

8. Structure of the Judiciary n CONSTITUTIONAL COURTS are the courts created by Congress under its permission given in Article III, and by later decisions of the Supreme Court n They include the district courts, courts of appeal, and the US Court of International Trade.

9. Structure of the Judiciary n LEGISLATIVE COURTS were created by Congress to hear special cases that arise under the legislative powers given to Congress in Article I n Legislative courts hear cases based on laws against terrorism, income tax matters, etc. n None of these laws were specifically foreseen by the Constitution.

10. Constitutional Courts n THE DISTRICT COURTS n Each state has at least one; large states and the District of Columbia have several. n The district courts try cases involving violation of federal (not state) law. n There are 94 districts. They all have original jurisdiction, and do not hear appeals. n More than 80% of all federal cases are heard in these courts.

11. Constitutional Courts n DISTRICT COURTS:

12. Constitutional Courts n THE COURTS OF APPEALS were created in 1891, to ease the case load of the Supreme Court n They hear appeals from district court decisions n There are 13 US Courts of appeals; the country is divided into sections called “circuits.” n They have appellate jurisdiction only.

13. Constitutional Courts n CIRCUIT COURTS

14. Constitutional Courts n THE UNITED STATES SUPREME COURT is the only court actually mentioned in the Constitution n It is the final authority on all questions arising from US law, treaties, and the Constitution itself.

15. Supreme Court Jurisdiction n Most cases in the Supreme Court come from lower federal courts n Some come from state courts IF a federal law is involved, or if there is a constitutional matter involved n Remember that under federalism, the national constitution dominates when it conflicts with a state constitution

16. Supreme Court Jurisdiction n The Supreme Court also has original jurisdiction if there is a suit against an individual state or if there is a suit against the United States government by a foreign government.

17. Structure of the Supreme Court n The Constitution allows the Congress to set the size of the Supreme Court n The original Court had five justices n Since 1869 the Court has had nine n One Chief Justice and eight Associate Justices n All are appointed (nominated) by the president and confirmed by the Senate.

18. Nominating federal judges n Federal judges serve “for good behavior,” which in most cases means for life n Presidents have an unusual opportunity to affect the future with federal court appointments.

19. Nominating federal judges n There are no formal qualifications for federal judges, other than that they be citizens. n The Department of Justice and White House staff handle the search for suitable candidates, and give a name or a short list of names to the president.

20. Nominating federal judges n Presidents expect that their staffs will have made a thorough check of the candidate’s background, previous experience, and decision history n This process of background checking is called “vetting.”

21. Nominating federal judges n Once a nominee has been fully vetted and a president has arrived at a final decision, custom dictates that the president will first contact the senator from the nominee’s home state before making the nominee’s name public n This custom is called “senatorial courtesy.”

22. Nominating federal judges n If the nomination is to a federal district court, the president’s staff may contact the senator from that state first, to see if the senator has personal experience with someone who might be a suitable district nominee.

23. Supreme Court nominees n Presidents consider many things besides political philosophy of nominees when making a Supreme Court selection.

24. Supreme Court nominees n A president may want to balance the Court by race, gender, or religion n Stepping outside the typical pool of white Protestant males can make a president popular with one segment of voters n Until 1967, all Supreme Court Justices had been white males

25. Supreme Court nominees n President Lyndon B. Johnson (Democrat) appointed the first Black justice, Thurgood Marshall, in 1967. n President Ronald Reagan (Republican) appointed the first female justice, Sandra Day O’Connor, in 1981.

26. Supreme Court nominees Thurgood Marshall Sandra Day O’Connor

27. Supreme Court nominees n There may be a political “litmus test” that the president’s party insists on. This would be one issue on which the party places great importance n A president with divided government may choose a nominee whose stand on the “litmus test” issue is more moderate.

28. Supreme Court nominees n Presidents must know about a nominee’s judicial philosophy, since the Senate will undoubtedly ask about that during their hearings. n By a nominee’s past writing or decisions, a determination of “judicial activist” or “advocate of judicial restraint” may be possible.

29. Supreme Court nominees n A JUDICIAL ACTIVIST tends to see the Court as a means of breaking new ground with the law, sometimes forging ahead in areas where Congress seems reluctant to go (liberal) n The 1954 Brown v. Board of Education decision, for example, desegregated public schools after Congress refused to do so.

30. Supreme Court nominees n A nominee who advocates JUDICIAL RESTRAINT, on the other hand, will favor decision-making that is in line with earlier decisions the Court has made (conservative) n Such a nominee does not believe that the Court should assume any role or opinion that contradicts the law-making role constitutionally given to Congress.

31. The Court at work n The Court receives thousands of petitions annually, and cannot possibly manage to take all on as cases.

32. Cases will not be heard if… n Justices believe the lower court’s decision should “stand” n The point of law is deemed “insignificant” n They do not wish to address the issue in this “time” or with this “case”

33. The Court at work n Cases that are accepted for review must pass the “rule of four” -- four of the nine justices must agree to hear the case n If they agree, the Court grants what is known as a “writ of certiorari,” a formal statement agreeing to hear the case n This process is also known as “granting cert.”

34. The Court at work n If the Court “grants cert,” attorneys for each side of the case submit written arguments known as briefs n In each brief, the attorney presents the facts of the case, and points of constitutional law believed to apply (or to have been violated in a lower court’s handling of the matter.)

35. The Court at work n Attorneys may also submit briefs from persons or groups not directly involved in the case, but who wish to assist in persuading the court of its merits n These briefs are called “amicus curiae” briefs (Latin for “friend of the court.”) n They are called amicus briefs, for short.

36. The Court at work n On the day a case is to be heard by the Court, attorneys have 30 minutes each to present their cases orally n The justices may interrupt with questions n Then the Court retires to make its deliberations in secret, usually over a period of months.

37. The Court at work n Each justice has a staff of law clerks who assist in researching previous court decisions. n Justices meet frequently over the course of a term, to discuss this research and take preliminary votes n The Chief Justice presides over these meetings.

38. The Court at work n Customarily, justices look at the wording of the Constitution during these discussions n They also consider such documents as The Federalist and James Madison’s Notes on the Constitutional Convention, to determine exactly what the framers meant in each point of law n This helps them determine the “original intent” of the framers of the Constitution

39. The Court at work n The Court also looks at decisions made by earlier Courts, to determine if there is any valid reason to deviate from them n The body of previous court decisions is called “stare decisis.” n Justices who believe in judicial restraint are reluctant to go against stare decisis.

40. The Court at work n Once a definitive vote is taken, the Court begins work on a written statement for the public about the decision n This statement is called an “opinion.” n Opinion = decision = ruling

41. Everybody’s Got ‘Em n Three types of “Opinions” –Majority: the opinion of the group who made the decision –Dissenting: the disagreeing position –Concurrent: an opinion that agrees with the decision, but has a different reason

42. The Court at work n The Chief Justice assigns writing of the opinions to the senior justice on each side of the argument. n Once announced, the majority opinion (ruling/decision) will set precedent for later decisions n In other words, later courts will have to consider this decision in their deliberations (stare decisis)

43. The Court at work n However, earlier decisions may sometimes be reversed n Examples are: –Dred Scott v. Sandford –Plessy v. Ferguson –Brown v. Board of Education

44. A Modern History of the Court n Chief Justice Charles Evans Hughes in 1932 resisted many New Deal programs n This prompted FDR to attempt to “pack the Court” with extra justices n Congress did not pass FDR’s plan, but the Hughes Court began to vote with the New Deal as FDR began to design programs that were less radical.

45. A Modern History of the Court n The Warren Court (1953- 1969) was one of the most activist in history, coming down in favor of civil rights and civil liberties. n Notable decisions: Brown v. Board (1954,) Gideon v. Wainwright (1963) and Miranda v. Arizona (1966.)

46. A Modern History of the Court n The Burger Court (1969- 1986) began a more time of judicial restraint n However, it allowed abortion (Roe v. Wade, 1973) and ruled against Richard Nixon’s claim of “executive privilege” in the Watergate case (US v. Nixon, 1974)

47. A Modern History of the Court n The Rehnquist Court (1986 - 2005) continued to limit previous decisions, while overturning none n The Rehnquist Court’s guiding rule was stare decisis, even when earlier decisions had a liberal, activist tendency.

48. A Modern History of the Court n The current United States Chief Justice is John Roberts, appointed by president George Bush in October 2005 n He seems to be a politically moderate legal scholar.