2. 9
The Judiciary
The final word on interpretation of the Constitution is up to the nine members of the Supreme Court. How the Constitution is interpreted depends upon the policy preferences of the individual justices. As you will see in this chapter on the judiciary, liberal and conservative justices interpret the Constitution in very different ways.
Top Row - Sotomayor, Bryer, Alito, Kagan
Bottom Row - Thomas, Scalia, Roberts, Kennedy, Ginsberg

3. 9
Video: The Big Picture
What kinds of cases make it to the Supreme Court? In this video, author Karen O’Connor explains why the court rarely makes decisions on cases that affect only the parties involved, and discusses why so much attention is paid to the cases on which the Supreme Court chooses to rule.
TO THE INSTRUCTOR: To access the videos in this chapter, please enter your Pearson or MyPoliSciLab username and password after clicking on the link on the slide.

4. 9
Learning Objectives
Trace the development of the federal judiciary and the origins of judicial review
9.1
Explain the organization of the federal court system
9.2
In this chapter, we will learn about the federal judicial system. We will begin by identifying the basic elements of the judicial system and the major players in it. Next we will outline its structure and components. Then we discover how judges obtain their jobs and assess the impact of their backgrounds on their decision making. We will also learn how the courts are policymakers and the impact their decisions have on public policy.

5. 9
Learning Objectives
Outline the criteria and process used to select federal court judges
9.3
Evaluate the Supreme Court’s process for accepting, hearing, and deciding cases
9.4

6. 9
Learning Objectives
Analyze the factors that influence judicial decision making
9.5
Assess the role of the Supreme Court in the policy-making process
9.6

7. 9
Video: The Basics
Do you have confidence in the U.S. court system? Watch this video to discover what the founders did to make sure the federal judiciary would be independent of political influence. You’ll also learn about an important check the Supreme Court has on the other two branches of U.S. government.

8. Roots of the Federal Judiciary
9.1
Roots of the Federal Judiciary
The Judiciary Act of 1789 and the Creation of the Federal Judiciary
The Marshall Court: Marbury v. Madison and Judicial Review
In 1787, when writing The Federalist Papers, Alexander Hamilton wrote that the judiciary would be “the least dangerous” branch of government. In fact, when the seat of national government was moved to Washington, D.C. in 1800, Congress forgot to include space for the Supreme Court in the Capitol Building; ultimately a room was found for the “inconsequential” Supreme Court in the basement!
Today, the role of the judiciary in our country, and particularly that of the Supreme Court, differs significantly from what the Framers envisioned. Many people think “least dangerous” branch has too much power.
Courts have two types of jurisdiction: original and appellate. Original refers to a court’s authority to hear disputes as a trial court. For example, the Supreme Court has original jurisdiction in cases involving state governments or public officials. Appellate refers to a court’s ability to review and revise cases already decided by a trial court. The Supreme Court has appellate jurisdiction in all other cases. The Supreme Court functions as the appellate court of last resort.
In this section, we will look at the early organization of the federal judiciary and the first important cases heard by the Supreme Court.

9. 9.1 TABLE 9.1: What kinds of cases does the U.S. Supreme Court hear?
This table shows the different types of cases over which the Supreme Court has jurisdiction as initially specified in the Constitution.

10. The Judiciary Act of 1789 and Creation of the Federal Judiciary
9.1
The Judiciary Act of 1789 and Creation of the Federal Judiciary
Three Tier Structure
Federal District Court
Circuit Courts (Courts of Appeal)
Supreme Court
Rocky beginning for Supreme Court
Despite the Framer’s wishes to keep politics and the judiciary separate, Congress spent the second half of its first session deliberating the form and substance of the federal judiciary, and ultimately passed the Judiciary Act of This act established the three-tiered structure of the federal courts. At the bottom were Federal District Courts – at least one in each state. If the litigants of a case didn’t like the ruling at that level, they could appeal their case to the second level: the Circuit Courts. The third and final level was the Supreme Court.
Although the Constitution mentions the Supreme Court, it does not specify how many people should serve on it. Originally there were six members, then five, and then in 1869 it was permanently fixed at nine.
The Supreme Court had a somewhat rocky start. Hampered by frequent changes in personnel, limited space for operations, no clerical support and no system for reporting its decision, the early court did not impress.

11. Dual Court System

12. 9.2 FIGURE 9.1: How is the American Judicial System Structured?
This figure compares the three-tiered structure of the federal court system to that of the states.

13. 9.2 FIGURE 9.2: What are the boundaries of
federal district courts and courts of appeals?
This map shows the location of each U.S. court of appeals and the boundaries of the federal district courts in states with more than one district.

14. The Marshall Court: Marbury v. Madison and Judicial Review
9.1
The Marshall Court: Marbury v. Madison and Judicial Review
John Marshall’s tenure:
Opinions from the Court, rather than individual justices
McCulloch v. Maryland (1819)
Broad interpretation of “necessary and proper” clause
Marbury v. Madison (1803)
Established Judicial Review
The evolution of the Supreme Court’s role has resulted in large part through the leadership of some of the justices who have served. John Marshall, who headed the court from 1801 to 1835, is considered the most important of all the justices. Marshall established the practice of having the Court deliver opinions as one voice, rather than having each justice write his own.
The Marshall Court also established the supremacy of the federal government and Congress over state governments through a broad interpretation of the necessary and proper clause in McCulloch v. Maryland. Perhaps most importantly, the Marshall Court claimed the right of judicial review, the power of the court to review the acts of other branches of government and the states for constitutionality, in a case called Marbury v. Madison.

15. 9.1
Video: In Context
In this video, we will discover how the Supreme Court gained a check on the other two branches after the U.S. Constitution was written. East Central University political scientist Christine Pappas discusses Marbury v. Madison and analyzes how the power of judicial review has impacted campaign finance law.

16. Chief Justice John Marshall
9.1
Chief Justice John Marshall
This portrait shows John Marshall, considered to be the most important chief justice of the Supreme Court. Why is John Marshall important to the development of judicial authority?

17. 9.2
The Supreme Court
Jurisdiction - The authority of a court to hear and decide cases.
Reviews cases from U.S. Courts of Appeal and state supreme courts
Members
Eight associate justices and one chief justice
Precedent
Rules are binding throughout the nation
Stare decisis
Sometimes cases reviewed by the Supreme Court involve highly controversial issues. The Court hears only cases from U.S. Courts of Appeal and those from state supreme courts and other courts of last resort. Since 1869, there have been eight associate justices and one chief justice who serve on the court. Each has four clerks, and the entire court employs just 400 staff members.
Decisions of the U.S. Supreme Court are extremely important because they are binding throughout the entire country and establish national precedents, or rules for settling subsequent cases of similar nature. The practice of adhering to precedent when deciding cases is called stare decisis. Who can translate this Latin phrase for us?

20. Federalist No. 78
Alexander Hamilton penned in the Federalist # 78 that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.”
Today the federal courts are very powerful.
Nevertheless, the courts still have two basic limitations: they have neither the power of the purse, nor the of the sword.
The court cannot fund or implement programs nor can it force compliance with its rulings.

21. The Constitution and the National Judiciary
Article III of the Constitution establishes:
a Supreme Court in which the judicial power of the United States is vested
life tenure or 'good behavior' for judges
judges receive compensation that cannot be diminished during their service such inferior courts as Congress may choose to establish the original jurisdiction of the Supreme Court
The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.

22. Chief Justice
John Roberts (born January 27, 1957) is the seventeenth Chief Justice of the United States. Roberts previously was a judge, spent 14 years in private law practice and held positions in Republican administrations in the Department of Justice and White House Counsel.

23. How Federal Court Judges Are Selected
9.3
How Federal Court Judges Are Selected
Who Are Federal Judges?
Nomination Criteria
The Confirmation Process
Appointments to the U.S. Supreme Court
As anyone who has witnessed a confirmation hearing on television knows, the selection of federal judges can be highly political; the president nominates judges and the Senate confirms them. While presidents seek out qualified men and women to serve as federal judges, the appointment process gives a president the chance to put his “philosophical stamp” on the federal courts. In this section we will discuss who are the judges, what are the nomination criteria, and what the appointment and confirmation process looks like.

24. 9.3 TABLE 9.2: How does a president affect the federal judiciary?
This table shows how many judges presidents from Carter to Obama have appointed to the federal courts.

25. Who Are Federal Judges? 9.3 Background Rewards
Generally have held other judicial jobs
Active in politics
Diversity growing
Rewards
Generally, federal district judges have held other political offices, such as state court judge or prosecutor. Most have been involved in politics, which is often how their names come up for consideration during the nomination process. Some judgeships are given as political rewards. For example, Griffin Bell, a former federal court of appeals judge, once remarked, “For me, becoming a federal judge wasn’t very difficult. I managed John F. Kennedy’s presidential campaign in Georgia.”
White males continue to dominate the federal courts, but since the 1970s most presidents have pledged to appoint more women, African Americans and Hispanics to the federal courts.

26. Nomination Criteria Competence 9.3 No constitutional qualifications
Experience
Most nominees have legal experience
Ideology and Religion
Presidents try to pick like-minded nominees
Pursuit of Political Support
Nominees can garner approval from constituencies that haven’t been supportive
Race and Gender
Recent Efforts to diversify
Nomination Criteria
When a president has a vacancy to fill on a federal court, six criteria tend to stick out as most important when he considers a nominee: experience, ideology, rewards, pursuit of political support, religion, and race and gender. Most nominees have had at least some judicial, legal, or governmental experience. For example, in 2012, all nine sitting Supreme Court justices but one – former Solicitor General Elena Kagan – had prior judicial experience.
When it comes to ideology, most presidents also seek to appoint individuals who share their policy preferences, and almost all have political goals in mind when they appoint a judge or justice. Many of those appointed to the judiciary have been personal friends or supporters of the president. Some presidents use their nominees to garner political support, especially from groups that haven’t shown a strong liking of the president. For example, President Ronald Reagan pledged during his 1980 campaign to nominate the first woman to the Supreme Court.
Almost all Supreme Court justices throughout history have been members of traditional Protestant faiths, though there are now more Catholic and Jewish members of the Court than ever before. Most Justices have been white males; through 2012 only two African Americans and three women have served.

27. 9.3 TABLE 9.3: Who are the Justices of the Supreme Court in 2012?
This table gives us some background on each of the Supreme Court justices serving in 2012.

28. The Confirmation Process and Appointments to the U.S. Supreme Court
9.3
The Confirmation Process and Appointments to the U.S. Supreme Court
Investigation, ABA, Justice
Personal and professional background
Lobbying by Interest Groups
They don’t stay silent, Amicus Curae
Senate Committee Hearings
Followed by Senate vote
Before a president announces a nomination, especially to the Supreme Court, the White House staff begin an investigation into the personal and professional backgrounds of potential nominees. Names are given to the FBI and the American Bar Association (ABA) for vetting, review, and, in the case of the ABA, a rating. Once the nominee has been announced, the Senate Judiciary Committee starts its own investigation, which includes asking nominees to fill out a lengthy questionnaire. The committee holds its own hearings before the matter comes to the Senate for a vote.
During this process, interest groups may become very active, especially for Supreme Court nominations. In 1987, liberal groups launched a campaign against Supreme Court nominee Robert Bork. They objected to his firing of the Watergate special prosecutor when he was solicitor general under President Richard Nixon, and to his extreme conservative views. The Senate rejected his nomination by a vote.

29. President
Dept. of
Justice
Senators
ABA
Interest Groups
Senate
Jud. Comm.
Senate

30. Litmus Test
The political litmus test is often used when appointing judges. However, this test to determine the political attitude of a nominee is not without error. Supreme Court Chief Justice Earl Warren was appointed under the impression that he was conservative but his tenure was marked by liberal dissents. Today, the litmus test is used along with other methods such as past voting records when selecting political candidates.
Obama added, "I don't have litmus tests around any of these issues. But I will say that I want somebody who is going to be interpreting our Constitution in a way that takes into account individual rights, including women's rights. That is something that is going to be very important to me.“

31. 9.3
TABLE 9.4: How Many Interest Groups Submit Testimony to the Senate Judiciary Committee?
This table shows how many interest groups submitted testimony concerning Supreme Court nominees before the Senate Judiciary Committee.

32. 9.3
What role does the Senate Judiciary Committee play in the judicial nomination process?
As mentioned, the Senate Judiciary Committee holds confirmation hearings where potential justices appear before the committee. Here, Clarence Thomas testifies before the committee following his nomination in 1991.

33. The Supreme Court Today
9.4
The Supreme Court Today
Deciding to Hear a Case
How Does a Case Survive the Process?
Hearing and Deciding the Case
Despite the tremendous power and influence the Supreme Court has over the policy and laws that affect Americans’ lives, very few Americans have any real depth of knowledge about the Court. This may be due in large part to lack of interest, but the Court itself has taken great pains to maintain privacy and decorum. It does not televise hearings, for example, and utmost secrecy surrounds the deliberation process. In this section we will discuss how the Supreme Court decides to hear a case, and what happens next.

34. 9.4 TABLE 9.5: Can Americans Name the Justices of the Supreme Court?
Very few Americans can name a justice of the Supreme Court. This table shows exactly how few.

35. 9.4 FIGURE 9.3: How Many Cases Does the Supreme Court Handle?
This figure shows that the number of cases appealed to the Supreme Court has risen steadily in the last 60 years; however, the number of those cases that the Court deigns to hear has declined.

36. Deciding to Hear a Case 9.4 Writs of Certiorari and the Rule of Four
Cases must come from from U.S. Courts of appeals or other courts of last resort
Cases must involve a federal question
Role of Clerks
Over 8,150 cases were filed at the Supreme Court during its term. 82 were heard, and 81 decisions were issued. As you can see, only a fraction of cases requesting Supreme Court review are ever considered. The Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting the rest. Litigants wanting their case to be heard send a petition for a writ of certiorari (Latin for “to be informed”) to the Supreme Court, requesting a review of a lower court’s ruling. Those petitions are sent first to the chief justice, and then to the other justices. Under the “Rule of Four,” a case will get a hearing if at least four justices agree.
The Clerks of the Supreme Court are very important in this process. They generally graduate at the top of their class from top law schools. They review cases and make recommendations to their bosses. Since the Court started hiring more clerks for each justice, the length of opinions has increased as well.

37. 9.4 FIGURE 9.4: How Does a Case Get to the Supreme Court?
This figure shows how the vast pool of cases is winnowed down to the less than 100 cases heard and decided upon by the Supreme Court.

38. 9.4 Why are Supreme Court clerkships important?
Clerks provide a service to the justices of the Supreme Court, and in turn receive valuable experience. Why are Supreme Court Clerkships so important?

39. How Does a Case Survive the Process?
9.4
How Does a Case Survive the Process?
Federal Government
The Solicitor General
Conflicts Among the Courts of Appeal
Different interpretations
Interest Group Participation
Important social issues
So which cases tend to get a hearing? Generally they fall into one of three categories:
They involve the federal government. The solicitor general, a presidential appointee who is fourth in command at the Department of Justice and sometimes called the Court’s “ninth and a half” member, has long had a special relationship with the Supreme Court. As a result, the Supreme Court tends to hear 70 to 80% of the cases to which the United States government is the petitioning party, compared to about 5% of all other petitioning parties.
They involve conflict among the lower courts. When circuit courts disagree over interpretation of an important issues, the Supreme Court may decide to weigh in.
They involve especially important social issues and there is a record of wide interest group support. Interest groups participate by filing briefs as amicus curiae, or friend of the Court.

40. 9.4
TABLE 9.6: Which Groups Participated as Amicus Curiae in Citizens United v. FEC (2010)?
This table shows the different groups that participated in the controversial Citizens United v. FEC case in 2010.

41. Hearing and Deciding the Case
9.4
Hearing and Deciding the Case
Oral Arguments
Questions asked and answered
The Conference and the Vote
Closed conferences twice a week
Writing the Opinion
Dissenting opinions
After the court accepts a case and each side has submitted briefs, the oral arguments begin. Generally, attorneys are given one half-hour to argue their case, including time required to answer questions from the justices. Court observers have tried to predict the ruling of a case based on justices’ questions, but that is an imperfect art.
After arguments, the justices meet behind closed doors twice a week. They start each conference with a handshake. The chief justice begins the discussion of the case, and each justice speaks in order of seniority. Discussions are followed by a vote on the case.
Once a decision has been made, the opinion must be written. If the chief justice is in the majority, he will assign a justice to write the majority opinion. The opinion is important because it sets out the legal reasoning justifying the decision, and this legal reasoning becomes a precedent for deciding future cases. Justices who disagree with the majority may write a dissenting opinion. Justices who agree with the vote but not the reasoning may submit a concurring opinion.

42. Explore the Simulation: You Are a Supreme Court Clerk
9.4
Explore the Simulation: You Are a Supreme Court Clerk
Through the power of judicial review, the Supreme Court has the last word on issues of constitutional interpretation. Supreme Court justices can strike down federal legislation. In this simulation, you will explore this process as you serve as a Supreme Court clerk.

43. Judicial Philosophy and Decision Making
9.5
Judicial Philosophy and Decision Making
Judicial Philosophy, Original Intent, and Ideology
Public Opinion
Justices do not make decisions in a vacuum. They must follow the law of previous cases. But, as we will discover in this section, other legal and “extra-legal” factors can be observed in Supreme Court decision making. Those include justices’ philosophy and ideology, public opinion, and what the original intent of the Framers is presumed to have been.

44. Judicial Philosophy, Original Intent, and Ideology
9.5
Judicial Philosophy, Original Intent, and Ideology
Judicial philosophy and ideology
Judicial restraint
Judicial activism
Strict constructionism
Original intent
One of the main controversies concerning judicial decision-making focuses on what is called the activism/restraint debate. Advocates of judicial restraint argue that courts should allow the decisions of other branches of government to stand, even when they violate a judge’s own principles. Because judges are not elected, they should leave policy making to the elected branches.
Judicial activism is the opposite: justices help create public policy through their decisions. The case Roe v. Wade, which liberalized abortion laws, is considered an example of judicial activism.
Those who support judicial restraint tend to agree that justices should be strict constructionists. In other words, justices should interpret the Constitution as the Framers wrote and originally intended it. As we will see, this is not realistically possible today.
Activity: Describe a case, either using a real case or a hypothetical one, perhaps associated with some local or national news headline. Split the class into two sections and assign one as an activist court, the other as a court practicing judicial restraint. Each group is to make a decision on the described case, using only those qualities associated with its assigned method of reaching decisions. How do the outcomes compare?

45. Public Opinion 9.5 Can check the power of the courts
Activist periods
May consider public opinion when issuing rulings
Korematsu v. U.S. (1944)
Public confidence in Court
Has ebbed and flowed
The relationship between the Supreme Court and public opinion can seem like a moving target. At times the Court appears to have heeded the call of public opinion, such as when, in 1936, it reversed many of its earlier decisions that had blocked President Roosevelt’s New Deal programs.
But at times of war and other emergencies, the Supreme Court has decided cases that seemed to favor public opinion over constitutional principles. In Korematsu v. U.S., the Court seemed to bend to public fears during World War II when it upheld the clearly unconstitutional internment of Japanese Americans. Perhaps as a result of these actions, public confidence in the court has varied throughout its history.

46. 9.5
TABLE 9.7: Do Supreme Court Decisions Align with the views of the American Public?
This table gives an example of the nexus of certain Court cases with public opinion.

47. Video: Thinking Like a Political Scientist
9.5
Video: Thinking Like a Political Scientist
Why do legal scholars and political scientists disagree over how judges make decisions? In this video, East Central University political scientist Christine Pappas analyzes this and other questions scholars study. She explains how the other branches of government limit the role of the judiciary in public policy-making, and discusses research on how public opinion influences the courts.

48. Explore the Judiciary: Who Are the Activist Judges?
9.5
Explore the Judiciary: Who Are the Activist Judges?
The Court may contain conservative or liberal activist justices. There have been major decisions led by each faction. In this activity, you will learn about some conservative and liberal activist justices who have served on the Court.

49. Toward Reform: Power, Policy Making, and the Court
9.6
Toward Reform: Power, Policy Making, and the Court
Power and Policy Making
Implementing Court Decisions
Many political scientists argue that all judges, whether they recognize it or not, make policy. The decisions of the Supreme Court especially have a great impact on American politics and policy. In this section, we will examine those impacts.

50. Power and Policy Making
9.6
Power and Policy Making
Civil rights issues
Right to privacy
Equal rights for women, African Americans and other minorities
Authority of the Court
While elected officials keep a close eye on the wishes of their constituents, it is safe to say that many policies we take for granted in the United States would not have come about without the support of the Supreme Court. These include the right to privacy and equal rights for women, African Americans, Hispanics, gays and lesbians, and other minority groups.
The Court has also helped set public policy in regards to its own authority. The Warren Court helped broaden the role of the Court as a public policy maker through its recognition of civil rights, and the Marshall court did the same through its claim of judicial review.

51. Video: In the Real World
9.6
Video: In the Real World
Should the Supreme Court have the power to knock down popular laws? This segment uses the Supreme Court’s decision in U.S. v. Arizona (2012) to illustrate the tension between protecting the law and having a government that's run by the people.

52. 9.6 Do unpopular Supreme Court rulings threaten the nation?
The Warren Court’s broad expansions of civil and political rights led to a great deal of criticism. Do you think unpopular Supreme Court rulings threaten the nation?

53. Implementing Court Decisions
9.6
Implementing Court Decisions
Judicial implementation
How judicial decisions are translated into public policies
Implementing population
Those responsible for carrying out the decision
Consumer population
Those directly affected by the decision
Once the court has ruled – especially if it has reversed an earlier court decision or an action by a branch of government – policy must follow in order to implement the decision. This is called judicial implementation. In considering judicial implementation, policy makers must be aware of the implementing population – those responsible for carrying out the decision, such as lawyers, judges, public officials, government agencies – and the consumer population. Those are people who might be directly affected by a decision.
Before judicial implementation can be carried out, the following must first be determined: does the implementing population understand the ruling? Will the implementing population actually follow the ruling? Is the consumer population aware of the rights that the decision grants or denies them?

54. 9
Discussion Questions
What role do the courts play in policy making? Should public opinion be considered when the judiciary makes policy decisions? What are some of the advantages and disadvantages of judicial activism?

55. 9
Video: So What?
What is the Supreme Court doing for you? In this final video for this chapter, author Karen O’Connor demonstrates how the Supreme Court’s decisions have affected everything from your student newspaper to your birth control, which is why it is important to be engaged and informed about the decisions the courts are making.

56. 9 Further Review: On MyPoliSciLab Listen to the Chapter
Study and Review the Flashcards
Study and Review the Practice Tests