1. Chapter 10 The Judiciary Pearson Education, Inc. © 2006 American Government 2006 Edition (to accompany Comprehensive, Alternate, Texas, and Essentials Editions) O’Connor and Sabato

2. Pearson Education, Inc. © 2006 The Constitution and the Creation of the Federal Judiciary  Framers devoted little time to the creation of the judiciary. Believed it posed little of the threat of tyranny they feared from the other two branches. Anti-federalists did see the judiciary as a threat.  Framers left it to Congress to design the federal judiciary.

3. Pearson Education, Inc. © 2006 Article III  Did not settle the question of judicial review Not explicitly stated in the Constitution Allows the judiciary to review the constitutionality of acts of the other branches of government and the states  Judicial review settled with Marbury v. Madison (1803) for national government’s acts and Martin v. Hunter’s Lessee (1816) regarding state law

4. Pearson Education, Inc. © 2006 The Judicial Power of the United States Supreme Court The following are the types of cases the Supreme Court was given the jurisdiction to hear as initially specified in the Constitution: All cases arising under the Constitution and laws or treaties of the United States All cases of admiralty or maritime jurisdiction Cases in which the United States is a party Controversies between a state and citizens of another state Controversies between two or more states Controversies between citizens of different states Controversies between citizens of the same states claiming lands under grants in different states Controversies between a state, or the citizens thereof, and foreign states or citizens thereof All cases affecting ambassadors or other public ministers

5. Pearson Education, Inc. © 2006 Article III  Section I gave Congress the authority to establish other courts as it saw fit.  Section II specifies the judicial power of the Supreme Court and discusses the Court’s original and appellate jurisdiction. Also specifies that all federal crimes, except those involving impeachment, shall be tried by jury in the state in which the crime was committed.  Section III defines treason, and mandates that at least two witnesses appear in such cases.

6. Pearson Education, Inc. © 2006 Article III  Framers gave federal judges tenure for life “with good behavior.” Did not want judges to be subject to the whims of politics, the public, or politicians Hamilton argued in Federalist 78 that the “independence of judges” was needed “to guard the Constitution and the rights of individuals.”  Some checks on judiciary included: Congress has the authority to alter the Court’s jurisdiction. Congress can propose constitutional amendments that, if ratified, can effectively reverse judicial decisions. Congress can impeach and remove federal judges. President (with advise and consent of Senate) appoints federal judges.

7. Pearson Education, Inc. © 2006 The Judiciary Act of 1789 and the Creation of the Federal Judicial System  Established the basic three-tiered structure of the federal court system District courts: at least one in each state, each staffed by a federal judge. Circuit Court: avenue for appeal.  Each circuit court initially composed of one district court judge and two itinerant Supreme Court Justices who met as a circuit court twice a year Supreme Court size set in the Act – chief justice and five associates  Number of justices set to 9 in 1869.

8. Pearson Education, Inc. © 2006

9. The Early Court  First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up.  Later, the court decided only one major case.  Relatively lowly status One associate judge left to become chief justice of a state supreme court.

10. Pearson Education, Inc. © 2006 The Early Court  First decade, Court not co-equal but it did assert itself. Declined to give President Washington advice on the legality of some of his actions  Attempted to establish the Court as an independent, nonpolitical branch Tried to advance principles of nationalism and to maintain the national government’s supremacy over the states Began to pave the way for announcement of the doctrine of judicial review

11. Pearson Education, Inc. © 2006 The Marshall Court: Marbury v. Madison (1803) and Judicial Review  Marbury v. Madison Supreme Court first asserted the power of judicial review in finding that the congressional statute extending the Court’s original jurisdiction was unconstitutional. Marshall claimed this sweeping authority for the Court by asserting that the right of judicial review was a power that could be implied from the Constitution’s supremacy clause. The immediate effect was to deny power to the Court. The long term effect was to establish the power of judicial review.

12. Pearson Education, Inc. © 2006 The American Legal System  Trial courts Courts of original jurisdiction where a case begins  Appellate courts Courts that generally review only findings of law made by lower courts  Jurisdiction Authority vested in a particular court to hear and decide the issues in any particular case Original jurisdiction: The jurisdiction of courts that hears a case first, usually in a trial. Courts determine the facts of a case under their original jurisdiction. Appellate jurisdiction: The power vested in an appellate court to review and/or revise the decision of a lower court.

13. Pearson Education, Inc. © 2006 The American Legal System  Criminal law Codes of behavior related to the protection of property and individual safety  Civil law Codes of behavior related to business and contractual relationships between groups and individuals

14. Pearson Education, Inc. © 2006 The Federal Court System  Constitutional courts Federal courts specifically created by the U.S. Constitution or Congress pursuant to its authority in Article III  Legislative courts Courts established by Congress for specialized purposes, such as the Court of Military Appeals

15. Pearson Education, Inc. © 2006 The Federal Court System  District Courts 94 federal district courts staffed by 646 active judges, assisted by more than 300 retired judges No district courts cross state lines. Every state has at least one federal district court. The most populous states have four (CA, TX, and NY).

16. Pearson Education, Inc. © 2006 Original Jurisdiction of Federal District Courts  Involve the federal government as a party  Present a federal question based on a claim under the U.S. Constitution, a treaty with another nation, or a federal statute  Involve civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000

17. Pearson Education, Inc. © 2006 District Courts  Each federal judicial district has a U.S. attorney. This individual is nominated by the president and confirmed by the senate. The attorney is that district’s chief law enforcement officer. They have a considerable amount of discretion as to whether they pursue criminal or civil investigations or file charges against individuals or corporations.

18. Pearson Education, Inc. © 2006 The Courts of Appeals  The losing party in a case heard and decided in a federal district court can appeal the decision to the appropriate court of appeals.  11 numbered circuit courts  Twelfth, D.C. Court of Appeals Handles most appeals involving federal regulatory commissions and agencies  Thirteenth, U.S. Court of Appeals for the Federal Circuit Deals with patents and contract and financial claims against the federal government  Have no original jurisdiction  Try to correct errors of law and procedure that have occurred in the lower courts or administrative agencies  Hear no new testimony.

19. Pearson Education, Inc. © 2006 The Federal Court System

20. Pearson Education, Inc. © 2006 The Supreme Court  Decisions of the court of appeals are binding on only the district courts within the geographic confines of the circuit.  Decisions of the Supreme Court are binding throughout the nation and establish national precedents. Reliance on past decisions or precedents to formulate decisions in new cases is called “stare decisis.” Allows for continuity and predictability

21. Pearson Education, Inc. © 2006 How Federal Court Judges Are Selected  Often a very political process  Judges nominated by president and confirmed by Senate  Can reflect the ideological stamp of the president  Senatorial Courtesy A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs.

22. Pearson Education, Inc. © 2006 Characteristics of District Court Appointees from Carter to Bush

23. Pearson Education, Inc. © 2006

24. Who Are Federal Judges?  Typically they have held other political offices. State court judge or prosecutor Most have been involved in politics White males tend to dominate

25. Pearson Education, Inc. © 2006 Appointments to the U.S. Supreme Court  Nomination Criteria Competence Ideology or Policy Preference  Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer’s original intentions. Pursuit of Political Support from Various Groups

26. Pearson Education, Inc. © 2006 The Supreme Court, 2004

27. Pearson Education, Inc. © 2006 The Supreme Court Confirmation Process  Investigation  Lobbying by Interest Groups  Senate Committee Hearings  Senate Vote

28. Pearson Education, Inc. © 2006 Interest Groups

29. Pearson Education, Inc. © 2006 The Supreme Court Today: Deciding to Hear a Case  9,000 cases were filed at the Supreme Court in its 2003-2004 term. Not always the norm 1940s fewer than 1000 cases filed annually During the 2003-2004 term, 90 cases were argued and 73 signed petitions were issued. Modern period, many of the cases have involved Bill of Rights issues

30. Pearson Education, Inc. © 2006 Supreme Court Caseload, 1950-2004 Terms

31. Pearson Education, Inc. © 2006 Supreme Court Today  Court has two types of jurisdiction Original Appellate  Rule of Four Court controls its caseload through the certiorari process.  All petitions for certiorari must meet two criteria: The case must come either from a U.S. court of appeals, a special three-judge district court, or a state court of last resort. Case must involve a federal question. This means that the case must present questions of interpretation of federal constitutional law or involve a federal statute, action or treaty. Cert pool Discuss list Cert granted when at least four justices vote to hear a case

32. Pearson Education, Inc. © 2006 Supreme Court Cases

33. Pearson Education, Inc. © 2006 What Do Supreme Court Clerks Do? Supreme Court clerks are among the best and brightest recent law school graduates. Almost all first clerks for a judge on one of the courts of appeals. After their Supreme Court clerkship, former clerks are in high demand. Firms often pay signing bonuses of up to $80,000 to attract clerks, who often earn over $130,000 their first year in private practice. Tasks of a Supreme Court clerk including the following: Perform initial screening of the 9,000 or so petitions that come to the Court each term Draft memos to summarize the facts and issues in each case, recommending whether the case should be accepted by the Court for full review Write a “bench memo” summarizing an accepted case and suggesting questions for oral argument Write the first draft of an opinion Be an informal conduit for communicating and negotiating between other justices’ chambers as to the final wording of an opinion

34. Pearson Education, Inc. © 2006 How Does a Case Survive the Process?  Characteristics of the cases the Court accepts: The federal government is the party asking for review.  Solicitor General The case involves conflict among circuit courts. The case presents a civil rights or civil liberties question. The case involves ideological and/or policy preferences of the justices. The case has significant social or political interest, as evidenced by the presence of interest group amicus curiae briefs.

35. Pearson Education, Inc. © 2006 Table 10.7  Amicus Curiae Briefs in an Affirmative Action case: Grutter v. Bolinger and Gratz v. Bolinger (2003)

36. Pearson Education, Inc. © 2006 Hearing and Deciding a Case  Oral arguments  The conference and the vote  The opinion

37. Pearson Education, Inc. © 2006 Judicial Philosophy and Decision Making  Judicial restraint: A philosophy of judicial decision making that argues courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own sense of principles.  Judicial activism: A philosophy of judicial decision making that argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty.

38. Pearson Education, Inc. © 2006 Models of Judicial Decision Making  Behavior characteristics Social background  Attitudinal model  Strategic Model  Public opinion

39. Pearson Education, Inc. © 2006 The Supreme Court and the American Public

40. Pearson Education, Inc. © 2006 Judicial Policy Making and Implementation  Policy making: More than one hundred federal laws have been declared unconstitutional. Ability to overrule itself  Judicial Implementation: Refers to how and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit.

41. Pearson Education, Inc. © 2006 Table 10.5