1. Unit 11 THE JUDICIARY “The least dangerous branch…”

2. I. Original Intent of Framers A. Federalist Paper #78 examined the _____________ of the judiciary. 1. How would members of the judiciary get their jobs? 2. What would be the term of their office? Why was it decided to be this way? 3. Why did Hamilton believe that precedent would be an important part of judicial tenure?

3. Original Intent: B. The Judiciary’s power would be limited to cases involving the interests of the national government, or where the interests of the states conflicted with each other or with the national government.

4. Original Intent: C. Interpretation of laws (judicial review) has been the judiciary’s main function only since Chief Justice John Marshall’s decision in Marbury v. Madison. - Legislative acts are void if contrary to the Constitution and once a law is voided… - the only recourse is a constitutional amendment which the states must approve.

5. Original Intent: D. Framers believed the courts would protect the people from an abusive legislature. 1. Supreme Court was the voice of the people and supreme over all state courts and state laws (when in conflict).

6. II. Politics of the Judiciary A. Judicial appointments by the President are very politicized. 1. Appointments reflect his desire to shape an ideological agenda. B. Over 90% of judicial appointees have been of the same party as the President and reflect his ideology as well. - Recent presidents have tried to add diversity to the courts, most particularly the Supreme Court. Clarence Thomas Robert Bork Sonia Sotomayor

7. Politics of the Judiciary (cont’d) C. Judicial appointments are influenced by: - American Bar Assoc’n - Interest groups (e.g. NRA, NAACP, NOW) - Attorney General - Senate Judiciary Committee members

8. Confirmation Politics Advice & Consent role of Senate: Senate Judiciary Committee holds hearings where appointees are questioned. Questioning is very partisan and ideological. Committee makes confirmation recommendation to full Senate. 2/3 of Senate confirm the nomination.

9. LITMUS TEST A test of a judicial nominee’s ideological purity by the Senate on matters of key social policies. Hard to obtain a perfectly “neutral” candidate acceptable to both parties.

10. SENATORIAL COURTESY The president allows the senior senator of the president’s party from the nominee’s state to concur or reject a judicial nomination in advance (called a “blue slip”). Senatorial courtesy applies only to federal district court/specialty court nominations!

11. JUDICIAL APPOINTMENTS (Through 2009) PRESIDENT WOMEN AFRICAN AMERICAN HISPANIC ALL JUDGES CARTER 40 37 16 258 REAGAN 28 7 15 384 BUSH SR. 36 12 8 185 CLINTON 77 51 18 378 BUSH JR. 73 26 17 324 OBAMA 10 2 1 21

12. D. Judicial Philosophy 1. Judicial Activism- Judges overturn a law or an executive action due to personal ideology. Often called “legislating from the bench.” 2. Judicial Restraint- Judges are reluctant to overturn laws or executive actions by strictly interpreting the Constitution and using precedent.

13. III. Precedent and Justiciability A. Supreme Court is not bound by precedent (stare decisis) since it’s the ultimate interpreter of the law. e.g. Plessy v. Ferguson Brown v. Bd. of Educ. Citizens United v. FEC B. Justiciability: Whether a case has any merit to be heard.

14. 1. Courts hear only justiciable cases that involve actual legal disputes and not hypothetical ones. 2. If a plaintiff wants to have his case heard they must have ”standing” (show that some harm was done to them). 2. If a plaintiff wants to have his case heard they must have ”standing” (show that some harm was done to them).

15. 3. Political or religious dogma questions are not justiciable! - A person cannot sue Congress just because he doesn’t like a law. - A person cannot sue Congress just because he doesn’t like a law. (e.g. his taxes are too high) (e.g. his taxes are too high) - The Court will not decide which religion is correct in interpretation of religious beliefs. - The Court will not decide which religion is correct in interpretation of religious beliefs. 4. For the gov’t to be sued it must have violated the Constitution somehow. (Ex: violated a person’s rights; favored one race over another; exceeded its powers; acted criminally) 4. For the gov’t to be sued it must have violated the Constitution somehow. (Ex: violated a person’s rights; favored one race over another; exceeded its powers; acted criminally)

16. 5. Class action suits- Justiciable because many people may have suffered harm from the results of the same action. (e.g. segregating schools; making a bad drug) 6. Amicus curiae briefs- (“Friend of Court” briefs) are written legal arguments made by any interested party designed to try and sway a court’s decision or add to a case’s justiciability.

17. IV. Types of Federal Courts A. Supreme Court is the highest court in the land, is the only court specified in the Constitution, and is the court of LAST RESORT. It’s decisions are final and not subject to appeal.

18. Federal Courts (cont’d) B. All other federal courts were created by Congress (through their expressed powers) as “lesser courts” to the Supreme Court, such as…

19. Federal Courts (cont’d) Constitutional Courts (Article III Courts) Designed to enforce specific judicial powers under Article III of the Constitution. Their judges are appointed for life. (e.g. District Courts, Circuit Courts of Appeal)

20. Federal Courts (cont’d) Legislative courts (Article I courts) - Special courts created by Congress to enforce laws created under its Article I powers. Its judges have term limits. (e.g. Tax Court, Territorial Courts, Bankruptcy Court, Maritime Courts) - Military law is written by Congress so military courts are also Article I courts.

21. C. Federal District Courts 1. 94 district courts that are spread among all the states and serve a small regional area. 2. Hear criminal and civil trials involving federal law; decide guilt or innocence based on facts; issue verdicts and sentences.

22. D. Federal Circuit Courts of Appeals 1. 13 larger regional-based courts that hear only appeals. 2. Decide issues of law, no trials held. 3. Decisions made by a panel of 3 judges; a majority of whose vote decides the appeal. 4. Decisions of these courts may be further appealed to the Supreme Court which has the option to hear or deny the appeal.

23. V. TWO JUDICIAL SYSTEMS A.The United States has two levels of courts, state & federal, This is called the dual court system. - Each level operates independently from the other having jurisdiction over its own laws.

24. State courts: State judicial powers are protected by the 10 th Amendment, but federal supremacy can override state laws or court decisions when in conflict with the Constitution.

25. B. Jurisdiction Definition: Jurisdiction is the authority of a court to interpret and apply the law by hearing a case or an appeal and ruling on them.

26. Four Jurisdiction Types 1. Original : Courts hear cases for the first time and render a verdict (criminal trial) or a decision (lawsuit). 2. Appellate : Courts hear an appeal brought by someone because a previous lower court decision was not favorable to them.

27. Jurisdiction Types (cont’d) 3. Concurrent : Federal gov’t and states may have simultaneous jurisdiction in a case. This is called dual sovereignty. - However, while federal supremacy can be applied to claim jurisdiction, it can also be deferred to the states. (e.g. bank robbery; 2003 sniper case)

28. Jurisdiction Types (cont’d) 4. Exclusive: Federal government can prosecute cases that it alone has power over even if the crime occurs within a state’s boundaries. (e.g. terrorism; stock market insider trading; mail fraud)

29. C. Federal Jury System Two types of juries: 1. Grand juries Investigative bodies of 16-23 people that only decide whether there is enough evidence to warrant a trial for an accused person. - Meet in secret - Accused is not present - No judge present. - Issue indictments (formal charges of a crime) based on weight of evidence.

30. Federal Jury System (cont’d) 2. Petit juries - Smaller juries of 6 to 12 selected citizens. - Decide criminal and civil cases. - Trials with petit juries are mostly open to the public - Secret verdict deliberation

31. VI. Parties To Lawsuits A. All parties involved in a lawsuit are referred to as litigants. 1. The party that brings the complaint is called the plaintiff. 2. The party who must answer to the complaint is the defendant.

32. Parties to Appeals Appellant: The party (1st name on the case) who appeals their loss from a lower court’s original decision. Appellee: The party (2nd name on the case) who defends against the appellant’s position. EXAMPLES: Marbury v. Madison Johnson v. U.S. Steel Corp. Clinton v. City of New York United States v. Virginia

33. VII. Supreme Court Appeals A.All lower court appeals must first be exhausted. B. The appellant must apply to the Court for a writ of certiorari (aka: granting “cert”). - This is a demand for the last appeals court to send up the original case in question for review by the USSC.

34. Rule of Four - At least four justices must agree to grant “cert” to a case in order for it to be heard. This is called the Rule of Four. - If “cert” is not granted then the decision of the last court stands. OK, who wants to grant cert with me? Me too! Me! Hell, no! Pass! Where am I?

35. C. The Written Brief Parties to the case are notified and must file separate written briefs that state the constitutional basis of their argument. If the federal government is a party then it is the Solicitor General who represents it. - The justices read these briefs prior to hearing the case in the court. - “Amicus curiae” briefs are reviewed at this point.

36. D. The Oral Argument On the court date, attorneys for each side state their case in an oral argument before the Court. Each is limited to 30 minutes, unless the Court grants them more time.

37. E. The Case Conference 1.The justices will meet in private days later to discuss the merits of the case and vote on a decision. Each justice has one vote. 2.If a tie vote occurs then the decision of the last court stands.

38. F. The Opinions One justice will be assigned to write the Court’s decision called an opinion. 1. Majority opinion: The winning side of the argument expresses the reasons for its ruling (also called “opinion of the Court”). - Split decision: A vote that is 5-4 - Unanimous decision: A vote that is 9-0 2. Dissenting opinion: The losing side’s reasons for disagreeing with the majority ruling. 3. Concurring opinion: An opinion agreeing with the majority’s conclusion, but for different reasons than what is written in the majority opinion.

39. G. Judicial Implementation Court decisions have legal authority, but they have no means to enforce them and must rely on the other two branches to do so. Implementation is difficult if a decision requires the cooperation of a large number of officials or depends upon the states to take the lead. Example: Brown v. Board of Education The Court can order its own “remedy” to effect implementation (judicial activism).

40. END OF UNIT 11 – JUDICIARY BRANCH “We are under a Constitution, but the Constitution is what the judges say it is. - Charles Evans Hughes Former Chief Justice, U.S. Supreme Court