Chapter 10. The Judiciary

Chapter 10

The Judiciary

GG © 2011

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

 Hamilton: “least dangerous branch”

 Anti-federalists did see the judiciary as a threat.

 Life tenure

 Supreme law of the land

 Compromise left it to Congress to design the federal judiciary.

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

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.

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

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

The Judiciary Act of 1789 and the

Creation of the Federal Judicial System

 First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up

 John Jay, Chief Justice

 Later, the court decided only one major case:

 Chisholm v. Georgia (1793)

 Relatively lowly status

 One associate judge left to become chief justice of a state supreme court.

 Limitations in space, support, no system for reporting its decisions

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

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.

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

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

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

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)

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

 Called federal question jurisdiction and can involve criminal or civil law

 Involve civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000

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.

 Springboard to elective office

 NY City Mayor Rudy Giuliani

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

 Briefs submitted to them containing legal written arguments in a case

The Courts of Appeals

 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

The Supreme Court

 Often the center of highly controversial issues

 Reviews cases from the U.S. courts of appeals and state supreme courts (as well as other courts of last resort)

 Acts as the final interpreter of the Constitution

 Ensures uniformity in the interpretation of national laws and the Constitution

 Resolves conflicts among the states

 Maintains the supremacy of national law in the federal system

 8 justices and one chief justice

 Relatively few support staff

 Clerks plus 400 staff members

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

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.

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

 Rewards

 Pursuit of Political Support

 Religion

 Race, Ethnicity, and Gender

The Supreme Court Confirmation Process

 Investigation

 Lobbying by Interest Groups

 Senate Committee Hearings

 Senate Vote

 Few recent confirmations have been close; closest in recent history

 Clarence Thomas 52-48 (1991)

 Samuel A. Alito 58-42 (2005)

The Supreme Court Today

 Surprising that so many Americans know next to nothing about the

judicial system

 Half surveyed in 2006 could not name a single member of the court

 Lack of interest

 Court’s privacy and sense of decorum

 Does not televise its proceedings

The Supreme Court Today:

Deciding to Hear a Case

 Nearly 8,000 cases were filed at the Supreme Court in its 2005-2006 term.

 87 heard, 74 decisions issued

 Early years relatively few cases decided

 Main duty: riding the circuit

 1940s fewer than 1000 cases filed annually

 Increased over time

 Modern period, many of the cases have involved Bill of Rights issues

Supreme Court Today

 Court has two types of jurisdiction:

 Original

 Appellate

 Writ of certiorari

 A request for the court to order up the records from a lower court to review the case

 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

 Role of clerks

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.

Hearing and Deciding a Case

 Oral arguments

 The conference and the vote

 Writing opinions

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

 Strict Constructionist

 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

Models of Judicial Decision Making

 Behavior Characteristics

 Social background

 The Attitudinal Model

 Strategic Model

Public Opinion

 Justices are exposed to information regarding the public’s attitudes on issues.

 Can act as a check on the power of the courts as well as an energizing factor

 Webster example

 Court subjected to lobbying, marches, etc.

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