1. Chapter 14 THE JUDICIARY

2. Learning Objectives 1) Summarize the origins of the American legal system & the basic sources of American law. 2) Delineate the structure of the federal court system. 3) Indicate how federal judges are appointed.

3. Learning Objectives 4) Explain how the federal courts make policy. 5) Describe the role of ideology & judicial philosophies in judicial decision making. 6) Identify some of the criticisms of the federal courts & some of the checks on the power of the courts.

4. Judiciary The courts; one of the three branches of government in the United States.

5. The Origins & Sources of American Law Common Law: –The body of law developed from judicial decisions in England –As well as U.S. courts, NOT attributable to a legislature.

6. The Origins & Sources of American Law Precedent: –A court decision that furnishes an example or authority for deciding subsequent cases –Involving identical or similar facts & legal issues.

7. The Origins & Sources of American Law Stare Decisis: –A common law doctrine under which judges normally are obligated to follow the precedents established by prior court decisions.

8. Departures from Precedent Court will depart from precedent if: –Precedent is incorrect or –Technological or societal changes have made the precedent inapplicable. Brown v. Board (1954) –Segregation unconstitutional Lawrence v. Texas (2003) –Consensual sexual conduct..ok (homosexuality)

9. Sources of American Law Primary Source of Law: –Source of law that establishes law. i.e. constitutions, statutes, administrative agency rules & regulations, & decisions rendered by courts. Constitutional Law: –Law based on U.S. Constitution & constitutions of various states.

10. Sources of American Law Statutory Law: –The body of law enacted by legislatures (as opposed to constitutional law, administrative law, or case law).

11. Sources of American Law Administrative Law: –The body of law created by administrative agencies (in the form of rules, regulations, orders, & decisions) –In order to carry out their duties & responsibilities.

12. Sources of American Law Case Law: –The rules of law announced in court decisions. –Case law includes the aggregate (collective) of reported cases that interpret Judicial precedents Statutes Regulations & Constitutional Provisions

13. Sources of American Law Civil Law: –The branch of law that spells out the duties that individuals in society owe to other persons or to their governments, –Excluding the duty not to commit crimes. ie. Private party sues another private party

14. Sources of American Law Criminal Law: –The branch of law that defines & governs actions that constitute crimes. –Generally, criminal law has to do with wrongful actions committed against society for which society demands redress.

15. Basic Judicial Requirements Jurisdiction: –The authority of a court to hear & decide a particular case. Trial Court: –A court in which trials are held & testimony taken.

16. Basic Judicial Requirements Federal Question: –A question that pertains to the U.S. Constitution, acts of Congress, or treaties. –A federal question provides a basis for federal court jurisdictions.

17. Basic Judicial Requirements Diversity of Citizenship: –A basis for federal court jurisdiction over a lawsuit that arises when: –(1) the parties in the lawsuit live in different states or when one of the parties is a foreign government or a foreign citizen & –(2) the amount of controversy is more than $75,000.

18. Basic Judicial Requirements Standing to Sue: –The requirement that an individual must have a sufficient stake in a controversy before he or she can bring a lawsuit. –The party bring the suit must demonstrate that he or she has either been harmed or been threatened with a harm.

19. Basic Judicial Requirements Justiciable controversy: –A controversy that is not hypothetical or academic but real & substantial; –A requirement that must be satisfied before a court will hear a case.

20. The Federal Court System U.S. District Courts: 94 judicial districts –Original Jurisdiction: courts that hear the case first & determine the facts- the trial court. –Federal crimes –Civil suits under federal law & across state lines –Supervise bankruptcy & naturalization –Review some federal agencies –Admiralty & Maritime law cases Federal District judges nominated by president approved by Senate

21. The Organization of The Federal Court System Figure 14-1 pg. 328

22. The Federal Court System Appellate Court: –A court having appellate jurisdiction that normally does not hear evidence or testimony, –But reviews the transcript of the trial court’s proceedings, other records relating to the case, –And the attorney’s respective arguments as to why the trial court’s decision should or should not stand.

23. U.S. Courts of Appeals & U.S. District Courts Figure 14-2 pg. 329

24. The United States Supreme Court Writ of certiorari: –A order from a higher court asking a lower court for the record of a case. Takes 4 judges to grant writ of cert 1,000s apply for writ of cert, court hears fewer than 100

25. Which Cases Reach the Court? Cases that raise important policy issues that need to be addressed. –Local school districts’ racial-integration, & question of violating Constitution’s equal protection clause –Should partial birth abortions be upheld –Can states pass euthanasia laws (physician- assisted suicide)

26. The Number of Supreme Court Opinions Figure 14-3 pg. 331

27. Supreme Court Opinions Oral Argument: –An argument presented to a judge in person by an attorney on behalf of her or his client. Conference: (w/ regards to Supreme Court) –A private mtg. of the justices in which they present their arguments with respect to a case under consideration.

28. Supreme Court Opinions Opinion: –A written statement by a court expressing the reasons for its decision in a case. Concurring Opinion: –A statement written by a judge or justice who agrees (concurs) with the court’s decision, but for reasons different from those in the majority opinion.

29. Supreme Court Opinions Dissenting Opinions: –A statement written by a judge or justice who disagrees with the majority opinion.

30. Courts & War on Terrorism Bush versus Court in legal “tug-of-war” over the rights of prisoners at Guantanamo Bay, Cuba –Military Commissions Act (MCA) of 2006, in response to Court’s 2006 decision that “special military tribunals” do not meet the requirements of due process, including the right to habeas corpus.

31. Federal Judicial Appointments State judges often elected (retention) All federal judges are appointed Article II, Section 2: –Authorizes president to appoint justices to Supreme Court w/ advice & consent of Senate. Laws enacted by Congress provide for same procedure to be used for appointing judges to lower federal courts.

32. Federal Judicial Appointments Federal judges receive lifetime appointment –Article III of the Constitution they “hold their Offices during good behaviour”. Federal judges can be removed from office through the impeachment process.

33. Backgrounds of United States Supreme Court Justices to 2012 Table 14-1 pg. 332

34. Backgrounds of United States Supreme Court Justices to 2010 Table 14-1 pg. 332

35. The Nomination Process President nominates & Senate approves Senatorial Courtesy: –A practice that allows a senator of the president’s party to veto the president’s nominee to a federal court judgeship within the senator’s state.

36. The Court as Policymakers Judicial Review: –The power of the courts to decide on the constitutionality of legislative enactments & of actions taken by the executive branch. Marbury v. Madion

37. The Court as Policymakers Judicial Activism: –The doctrine that the courts should develop new legal principles when judges see compelling need, even if this action places them in conflict with the policy decisions of elected officials. Both conservative & liberal judges practice judicial activism –Asserted by Chief Justice Earl Warren

38. The Court as Policymakers Judicial Restraint: –The doctrine that the judiciary should be highly respectful of precedent & should defer to the judgment of legislatures. –The doctrine claims that the job of judges is to work within the confines of laws set down by tradition and law-making majorities.

39. Ideology & The Courts Strict v. Broad Construction: –Strict constructionists: look to letter of the law as written to decipher its meaning. Linked to conservative views –Broad constructionists: look more to purpose & context of law. i.e. “read between the lines”, linked to liberal views

40. Ideology & The Courts Original Intent v. Modernism: –Original Intent: The Framers Intention of the document –Modernism: Living document, it evolves to meet societal changes.