1. Unit 7 The Judiciary Pearson Education, Inc. © 2008 American Government: Continuity and Change 9th Edition to accompany Comprehensive, Alternate, Texas, and Essentials Editions O’Connor and Sabato

2. Overriding Questions  What is the process that the Supreme Court uses to add cases to its docket?  How are the justices politically insulated and how are they tied to public opinion?  What guides the Court when granting a writ?  How does the Judicial Branch make policy? How has that role changed over time? What guides justices when making decisions?

3. 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

4. Article III  Did not settle the question of judicial review 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

5. 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.

6. Checks on Judicial Branch  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  Some checks on judiciary included: 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

7. 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 – Constitution is static  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 Loose/Liberal Constructionist – Constitution is a living thing

8. Unit 8 Organization of the Judicial Branch Pearson Education, Inc. © 2008 American Government: Continuity and Change 9th Edition to accompany Comprehensive, Alternate, Texas, and Essentials Editions O’Connor and Sabato

9. 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 Supreme Court size set in the Act – chief justice and five associates  Number of justices set to 9 in 1869

10. 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  Relatively lowly status

11. 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

12. The Marshall Court: Marbury v. Madison (1803) and Judicial Review  Marbury v. Madison Supreme Court first asserted the power of judicial review 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.

13. 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

15. 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

16. 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

17. 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

18. Unit 8 The Supreme Court Pearson Education, Inc. © 2008 American Government: Continuity and Change 9th Edition to accompany Comprehensive, Alternate, Texas, and Essentials Editions O’Connor and Sabato

19. 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  Resolves conflicts among the states  Maintains the supremacy of national law in the federal system  8 justices and one chief justice

21. 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

22. 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.

24. Appointments to the U.S. Supreme Court  Nomination Criteria Competence Ideology or Policy Preference Rewards Religion Race, Ethnicity, and Gender Litmus Test

26. 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)

27. The Supreme Court Today  Surprising that so many Americans know next to nothing about the judicial system

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

31. 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

32. Hearing and Deciding a Case  Oral arguments  The conference and the vote  Writing opinions

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

35. Supreme Court and Public Opinion  The Supreme Court is insulated from public opinion Appointed, not elected Serve life terms Court controls its own agenda Salaries can’t change Limited access to the Court  However, the Supreme Court never really deviates too far from public opinion Appointment/Confirmation by President and Senate who are elected officials Elected officials need to carry out decisions Can be overruled by elected branches Reputations Impeachment Congressional control of Supreme Court’s jurisdiction

36. 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 Plessy and Brown vs. Board

37. Overriding Questions  What is the process that the Supreme Court uses to add cases to its docket?  How are the justices politically insulated and how are they tied to public opinion?  What guides the Court when granting a writ?  How does the Judicial Branch make policy? How has that role changed over time? What guides justices when making decisions?