1. The Judiciary Ch. 10, American Government, O’Connor, et. al.

2. Supreme Court links http://www.cbsnews.com/8301-504803_162- 57563699-10391709/how-affirmative-action- divides-two-justices/ http://www.cbsnews.com/8301-504803_162- 57563699-10391709/how-affirmative-action- divides-two-justices/ http://www.npr.org/blogs/thetwo- way/2012/12/19/167614048/family-robert-bork- who-was-turned-down-for-supreme-court-dies http://www.npr.org/blogs/thetwo- way/2012/12/19/167614048/family-robert-bork- who-was-turned-down-for-supreme-court-dies http://supremecourt.c-span.org/CurrentCourt.aspx http://supremecourt.c- span.org/Video/JusticeOwnWords/SC_Jus_Granti ngCertiorari.aspx http://supremecourt.c- span.org/Video/JusticeOwnWords/SC_Jus_Granti ngCertiorari.aspx http://www.cbsnews.com/video/watch/?id=70969 96n http://www.cbsnews.com/video/watch/?id=70969 96n

3. Brutus’s critique of the Judiciary No. XI: – judges cannot be removed for bad decisions – they can interpret Constitution according to “law and equity” (“spirit”) No. XII: – courts will expand jurisdiction into state concerns – courts will control the legislature No. XV: – the courts are too independent and should be made subordinate to the legislature (as in Parliamentary system of GB)

4. Hamilton’s defense of Judiciary It is the least dangerous branch (No. 78) Judiciary should NOT be subordinate to legislature, because judicial review is necessary (No. 78 & 81) Defense of “judicial review”: – Someone must decide in cases of “clashing laws” – Judges may not substitute “will” for “judgment” – No power to interpret Constitution “in equity” (according to “spirit”) Judiciary is NOT the supreme branch: the Constitution embodies the reason of the people and is therefore supreme over ALL (No. 78)

5. Federalist No. 78 Publius (Alexander Hamilton) Judicial power implied judicial review Judicial power implied judicial review The independence of judges is an essential safeguard against effects of society The independence of judges is an essential safeguard against effects of society (Judicial Branch) has “neither FORCE NOR WILL, but merely judgment…” (Judicial Branch) has “neither FORCE NOR WILL, but merely judgment…” “right of the courts to pronounce legislative acts void…” “right of the courts to pronounce legislative acts void…” “No legislative act, therefore, contrary to the constitution, can be valid.” “No legislative act, therefore, contrary to the constitution, can be valid.” Federalist No. 78 Federalist No. 78 Federalist No. 78 Federalist No. 78

6. The Marshall Court: Marbury v. Madison (1803) and Judicial Review  Federalist No. 78  Discontinued seriatim  Marbury v. Madison – Necessary and proper clause – National supremacy  McCulloch v. Maryland – National supremacy – Broad interpretation of the commerce clause LO 10.1 To Learning Objectives

7. The tradition of seriatim, to give opinions of the court individually, came from what? A.The Roman system of law B.The British system of law C.The Greek system of law D.The colonial system of law E.The French system of law LO 10.1 To Learning Objectives

8. The tradition of seriatim, to give opinions of the court individually, came from what? A.The Roman system of law B.The British system of law C.The Greek system of law D.The colonial system of law E.The French system of law LO 10.1 To Learning Objectives

9. Roots of the Federal Judiciary LO 10.1: Trace the development of the federal judiciary and the origins of judicial review. LO 10.1: Trace the development of the federal judiciary and the origins of judicial review. Framers believed judiciary posed little threat of tyranny Judiciary Act of 1789 – Established three-tiered federal court system District (trials) Appeals Supreme – Courts originally had very little power To Learning Objectives

10. Marbury v. Madison (1803) Judicial review, executive privilege, federalism, jurisdiction Judicial review, executive privilege, federalism, jurisdiction 1st time S.C. declared a Congressional act -- Judiciary Act of 1789 -- unconstitutional 1st time S.C. declared a Congressional act -- Judiciary Act of 1789 -- unconstitutional Chief Justice John Marshall wrote decision Chief Justice John Marshall wrote decision Legitimized the role of the Supreme Court Legitimized the role of the Supreme Court Marbury v. Madison (1803) Marbury v. Madison (1803) Marbury v. Madison (1803) Marbury v. Madison (1803) 10

11. National Supremacy and Slavery 1789- 1861 Marbury v Madison (1803) McCulloch v. Maryland (1819) Gibbons v. Ogden (1824)- interstate commerce clause strengthened (under authority of federal government) Dred Scott v. Sanford (1857)- Slaves are not citizens of the U.S

12. Government & the Economy 1865-1936 Dominant issue: Could the federal government regulate the economy? Private property protected by the 5 th /14th amendments. Narrow interpretation of 14th and 15th amendments in relation to blacks allowing segregation: (Plessy v. Ferguson (1896) “separate but equal”; excluded blacks from voting in many states.

13. Government & political liberty (1936-present) Court establishes tradition of deferring to the legislature in economic regulation cases. Courts shift attention to personal liberties as is active in defining rights. Warren Court- liberal protection of rights and liberties against government trespass. 1992- Court rules that states have the right to resist some federal action.

14. Table 10.4: Who are the justices of the Supreme Court in 2013? To Learning Objectives

15. Figure 10.1: How is the American judicial system structured? Back To Learning Objectives

16. Federal Courts Structure Congress created 2 types of lower courts to handle cases that the Supreme Court does not need to decide. 1)“Constitutional Courts” exercise judicial powers found in Article III Court of Appeals, U.S. District courts, Supreme Court Judges serve for life, with good behavior Salaries not reduced while in office Appointed by President, confirmed by Senate 2) “Legislative courts” – derived from Article I no life tenure Court of Appeals to Armed Forces Territorial Courts (i.e. Guam, or Virgin Islands)

17. U.S. District and Appellate Courts

18. Figure 10.2: What are the boundaries of federal district courts and courts of appeals? Back To Learning Objectives

19. Constitutional Courts District Courts (94) At least 1 in each state Trial courts of the federal system Single judge and jury present. U.S. Court of Appeals (13) appellate courts or “circuits” (11 + DC Circuit + Federal Circuit) located regionally panel of 3 judges

20. Cases litigated beyond the federal district courts usually go to one of the regional appeals courts known as the U.S. Courts of Appeals. There are 13 appeals courts; 12 cover cases from geographic areas known as circuits. Judges on these courts sit in panels of 3; they aim at correcting errors in the lower courts and making policy through the opinions they write. a.Opinion writing gives judges influence beyond the immediate case. (1)A precedent is a decision in one case that provides a reason for deciding a similar case in the same way. (2)Stare decisis, which means “Let the decision stand,” is decision making according to a precedent rather than some other rule.

21. District courts Cases where federal government is a party Cases involving constitutional questions Cases between states or citizens of different states Courts of appeals Three-judge panel Look at errors of procedures of law Appellants must submit a brief to have case heard Stare decisis Supreme Court Nine-judge panel Appellate and original jurisdiction Ensures uniform interpretation of law Maintains national supremacy The Federal Court System LO 10.3: Explain the organization of the federal court system. LO 10.3: Explain the organization of the federal court system. To Learning Objectives

22. Jurisdiction of Courts Dual court system- state courts and federal courts have their own jurisdiction. Federal cases listed in Article III and the 11th Amendment. Federal question cases: involving US Constitution, federal law and treaties. Also cases involving different states or citizens of different states.

23. The Jurisdiction of the Federal Courts

24. Federal or State Court? Some cases can be tried at either level. Example: if both federal and state laws have been broken. (dual sovereignty) State cases can sometimes be appealed to the Supreme Court….a federal question must be raised.

25. Route to the Supreme Court Most federal cases begin in district court, then are appealed to circuit court. Supreme Court picks which cases it wants to hear. Rule of Four- 4 justices agree to hear case, then issue a writ of certiorari Usually pick cases that deal with: 1)significant federal or constitutional question 2)conflicting decisions by circuit courts 3)constitutional interpretation by a high state court, about state or federal law.

26. Table 10.1: What kinds of cases does the U.S. Supreme Court hear? To Learning Objectives

27. Going Supreme!! About 8000 requests for certiorari are submitted, the Supreme Court usually limits its DOCKET to no more than 100 cases in a year. The Supreme Court sometimes hears cases on original jurisdiction: 1)when a foreign ambassador is named in a case 2)when a state is named in a case 3)when maritime/admiralty law is involved.

28. docket Supreme Court’s agenda of cases to be heard Supreme Court’s agenda of cases to be heard +/- 100 granted writ of certiorari “to be informed” +/- 100 granted writ of certiorari “to be informed” 2-3 are original jurisdiction 2-3 are original jurisdiction Rule of Four Rule of Four stare decisis Appellate jurisdiction Appellate jurisdiction Must address a Constitutional or federal question Must address a Constitutional or federal question 28

29. Figure 10.3: How many cases does the Supreme Court handle? Back To Learning Objectives

30. Figure 10.4: How does a case get to the Supreme Court? Back To Learning Objectives

31. How Does a Case Survive the Process? Federal government Solicitor general Amicus curiae Conflict among the courts of appeals Necessary to resolve dispute Interest group participation Amicus curiae NAACP Washington Legal Foundation Brown v. Board of Education (1954) Planned Parenthood v. Casey (1992) LO 10.5 To Learning Objectives

32. Deciding to Hear a Case Supreme Court hears approximately one percent of cases filed cases filed Supreme Court issues writ of certiorari to hear case Rule of Four At least four Justices must sign on to a writ of certiorari Role of clerks Initial filtration process The Supreme Court Today LO 10.5: Evaluate the Supreme Court’s process for accepting, hearing, and deciding cases. LO 10.5: Evaluate the Supreme Court’s process for accepting, hearing, and deciding cases. To Learning Objectives

33. Supreme Court in Action Each side has an 1/2 hour for oral arguments, including interruptions for questions by justices. Briefs are submitted by each side and friends of the court - amicus curiae briefs. Solicitor general- 10th justice

34. Conference Procedures Judges meet in chambers. Chief Justice speaks first, votes last Selection of opinion writer Types of opinions: 1) per curiam- brief and unsigned 2) majority opinion- official decision 3) concurring opinion- agree, but for different reason 4) Dissenting opinion- minority opinion.

35. How to interpret the Constitution? There is much debate on how the Constitution should be interpreted: Strict constructionists - judges are bound by the wording of Constitution (narrowly interpret) as it was intended by the Framers. judicial activism - judges should look to the underlying principles of the Constitution (broadly interpret); judges should use their power broadly to further justice. Judicial restraint – allow decisions of lower courts and other levels of gov’t to stand, even when they offend the judge’s own principles.

36. Policy making – Judicial decisions make policy Judicial review Citizens United (2010) – Overruling itself Plessy v. Ferguson (1896) Brown v. Board of Education (1954) Implementation – Not always easy Brown v. Board of Education (1954) Reynolds v. Sims (1964) Toward Reform: Power, Policy Making, and the Court LO 10.7: Assess the role of the Supreme Court in the policy-making process. LO 10.7: Assess the role of the Supreme Court in the policy-making process. To Learning Objectives

37. Judicial policymaking occurs… (1)When judges interpret prior judicial decisions. This is known as common law or judge-made law. (2)When judges interpret legislation. This is known as statutory construction. (3)When judges interpret the Constitution. This is known as judicial review. (4)Because the circuit courts are not bound to consult with each other about application of the law, there may be variance in their interpretations. Such conflicts are corrected by review at the Supreme Court level.

38. A strict constructionist believes in a(n) ____________ constitution. A.living B.inherently evil C.inherently good D.Christian E.dead LO 10.6 To Learning Objectives

39. A strict constructionist believes in a(n) ____________ constitution. A.living B.inherently evil C.inherently good D.Christian E.dead LO 10.6 To Learning Objectives

40. In 1962, Justice William Brennan Jr. made a distinction between a political question and a _______________. A.political issue B.religious question C.social question D.loyalty issue E.religious issue LO 10.7 To Learning Objectives

41. In 1962, Justice William Brennan Jr. made a distinction between a political question and a _______________. A.political issue B.religious question C.social question D.loyalty issue E.religious issue LO 10.7 To Learning Objectives

42. Confirmation Process – Investigation American Bar Association – Lobbying by interest groups Lobbying by interest groups Bork Christian organizations – Senate committee hearings and vote More intensive since 1980s Appointments to Supreme Court – Importance – Unpredictability LO 10.4 How Federal Court Judges Are Selected To Learning Objectives

43. Selecting Judges All constitutional court judges are nominated by the president and confirmed by the Senate, on recommendation from the Senate Judiciary Committee. Senatorial Courtesy usually employed for district judges.

44. The Litmus Test Presidents seek judges who share an ideology similar to their own. Greatest impact on court decisions is ideology. Litmus test during Reagan/Bush administrations was pro-life.

45. Table 10.7: What do Supreme Court clerks do? Back To Learning Objectives

46. Checks on Judicial power Congress: 1) confirmation and impeachment 2) change the number of judges 3) changing jurisdiction of courts 4) revising legislation 5) amending the Constitution

47. Stare decisis literally means what? A.The right of the court to decide B.The wise will decide C.Staring at decisions D.The stars make decisions E.Let the decision stand LO 10.3 To Learning Objectives

48. Stare decisis literally means what? A.The right of the court to decide B.The wise will decide C.Staring at decisions D.The stars make decisions E.Let the decision stand LO 10.3 To Learning Objectives