1. The Judiciary Chapter 10 American Government O’Connor and Sabato
2006 Edition
(to accompany Comprehensive, Alternate, Texas, and Essentials Editions)
O’Connor and Sabato
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2. 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 system below the Supreme Court. Judiciary Act of 1789 did so.
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3. 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
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4. MARBURY v. MADISON (1803)
Marbury given judgeship by Federalists. Jefferson as new Pres (anti-fed) told Secy Madison to not deliver the commissions.
Marbury sues under Jud. Act of 1789 which gave the Court power of mandamus, could require Madison to deliver the commission
CJ Marshall hated Jefferson but doesn’t want to weaken Court’s position
CJ Marshall declares that small portion of Jud. Act expanding original jurisdiction of S.Ct. as unconstitutional; sorry Marbury, Court can’t help you
Establishes new power for judiciary: judicial review; strengthens judiciary as 3rd and co-equal branch
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5. 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, Article III:
All cases arising under the Constitution and laws or treaties of the United States
All cases of admiralty or maritime jurisdiction
All cases affecting ambassadors or other public ministers
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
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6. 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 to the overt act appear in such cases or the defendant confess in open court.
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7. 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 include:
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.
President refuse to enforce Ct decision – ex. Jackson
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8. Texas Judicial Qualifications and Personal Characteristics
More than 3,100 judges in Texas
Except for municipal judges all are selected in partisan elections
Texas Constitution establishes the qualifications for most judges
These vary by judicial office
Variation in terms of education and training
Personal characteristics are similar
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9. Texas Judicial Qualifications
Terms: 2-6 yrs
Above JP need
Age
Atty license
Experience
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10. 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.
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12. 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.
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13. 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
Does not hear hypothetical cases; only actual cases of controversy
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
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14. The Marshall Court: Marbury v. Madison (1803) and Judicial Review
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.
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15. The US Legal System Trial courts Appellate courts *Jurisdiction
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.
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16. The American Legal System
Criminal law
Codes of behavior established by society related to the protection of property and individual safety
Civil law
Codes of behavior related to business and contractual relationships between groups and individuals
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17. 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,
Ex.: Court of Military Appeals, US Tax Cts, Ct of Internat’l Trade, Ct of App for Vet Claims, territorial cts
Judges have term limits
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18. 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).
Texas – 5th circuit, Southern district
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19. 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
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20. District Courts Each federal judicial district has a U.S. attorney.
Nominated by the president and confirmed by the Senate.
Becomes district’s chief law enforcement officer (prosecutor)
considerable amount of discretion as to whether they pursue criminal or civil investigations or file charges against individuals or corporations.
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21. 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.
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22. The Federal Court System
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23. 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
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24. 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.
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25. Characteristics of District Court Appointees from Carter to Bush
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27. 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
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28. 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
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29. The Supreme Court, 2004
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30. The Supreme Court Confirmation Process
Investigation
Lobbying by Interest Groups
Senate Committee Hearings
Senate Vote
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31. Interest Groups
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32. The Structure of the Texas Judiciary
The Supreme Courts
Texas Supreme Court
Court of last resort in civil and juvenile cases
Texas Court of Criminal Appeals
Court of last resort in criminal cases
Petition for review
Request for Texas Supreme Court review, which is granted if four justices agree
Applications for discretionary review
Request for Texas Court of Criminal Appeals review, which is granted if four judges agree
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33. The Supreme Court Today: Deciding to Hear a Case
9,000 cases were filed at the Supreme Court in its term.
Not always the norm
1940s fewer than 1000 cases filed annually
During the term, 90 cases were argued and 73 signed petitions were issued.
Modern period, many of the cases have involved Bill of Rights issues
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34. Supreme Court Caseload, 1950-2004 Terms
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35. Supreme Court Today Court has two types of jurisdiction Rule of Four
Original
Appellate
Rule of Four
Court controls its caseload through the writ of 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
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36. Supreme Court Cases
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37. 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
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38. 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.
Refusals: political question or too emotionally controversial and little precedent
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39. Amicus Curiae Briefs in an Affirmative Action case: Grutter v
Amicus Curiae Briefs in an Affirmative Action case: Grutter v. Bolinger and Gratz v. Bolinger (2003)
Table 10.7
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40. Hearing and Deciding a Case
Oral arguments – 30 side
The conference and the vote, majority 5-4 to 9-0
The opinion
Majority – force of law
Concurring – agrees with decision but for different reasons
Dissenting
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41. 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.
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42. Models of Judicial Decision Making
Behavior characteristics
Social background
Attitudinal model
Strategic Model
Public opinion
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43. The Supreme Court and the American Public
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44. Judicial Policy Making and Implementation
More than 100 federal laws 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.
Dependent upon executive branch
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45. Judicial Policy Making and Implementation (cont)
Judicial remedies: court ordered solutions to cases
ex. Busing and prison overcrowding cases, redrawing Texas congressional districts
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46. Table 10.5
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47. Current Court CJ – John Roberts Newest justice – Sam Alito
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48. Criticisms of the Texas Judicial Branch
Reforming Campaign Finance
High cost of judicial campaigns
Judicial Campaign Fairness Act in 1995
Act limits contributions to judicial candidates, depending on the office
Several loopholes in the act
No requirement that a judge who has received a large contribution from a lawyer or party to a suit before the court recuse him/herself from the case
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49. Criticisms of the Texas Judicial Branch
Increasing Minority Representation on the Bench
Why so few minorities on the bench in Texas?
High cost of judicial campaigns
Racially polarized voting in statewide and countywide elections
Small numbers of Hispanics and African Americans who are licensed attorneys
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50. Criticisms of the Texas Judicial Branch
Reforming the Court Structure
Overlapping jurisdiction
Allows an attorney to “shop” for justice
Various suggestions for reform including merger of the two supreme courts
Reforming Judicial Selection
Recommendations have been made that Texas adopt a merit system for selecting judges
Other reforms suggested but no movement on compromise given the varied interests in judicial selection
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51. Misc Texas has an automatic appeal on all death penalty cases
The Warren Court was the most liberal ct, with the Burger Ct next
Texas ‘ Atty Gen gives advisory opinions on hypothetical situations, (ex What if a school refuses to give the TAKS test?). These advisory opinions have the force of law until challenged in an actual case.
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