1. Copyright 2009 Pearson Education, Inc., Publishing as Longman Longman PoliticalScienceInteractive Magleby & Light Government by the People Chapter 14 The Judiciary: The Balancing Branch

2. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Supreme Court’s Shift to the Right When Sandra Day O’Connor retired from the Supreme Court, a pivotal swing vote disappeared George W. Bush’s appointments of Samuel Alito and John Roberts shifted the Court to the right Example: 2007 decision to strike down as unconstitutional the use of race in assigning pupils to individual public schools

3. Copyright 2009 Pearson Education, Inc., Publishing as Longman Understanding the Federal Judiciary The Framers viewed the federal judiciary as an important check against Congress and the president But the judiciary has no influence over the “sword” or the “purse” Judicial power is ensured via: –Insulation from public opinion –Insulation from the rest of government

4. Copyright 2009 Pearson Education, Inc., Publishing as Longman Judicial Review The power of a court to refuse to enforce a law or government regulation that, in the opinion of the judges, conflicts with the U.S. Constitution or, in a state court, the state constitution Only a constitutional amendment or a later Supreme Court can modify the Court’s decisions

5. Copyright 2009 Pearson Education, Inc., Publishing as Longman Adversary System The Adversarial System Judges serve as relatively passive and detached referees who do not argue with attorneys or challenge evidence The Inquisitorial System Judges take an active role in discovering and evaluating evidence, will question witnesses, and intervene as deemed necessary

6. Copyright 2009 Pearson Education, Inc., Publishing as Longman Adversary System Court of law is a neutral arena where two parties argue their differences The federal government brings criminal cases The federal judiciary decides the cases

7. Copyright 2009 Pearson Education, Inc., Publishing as Longman Types of Legal Disputes Criminal Law –Crimes against the public order –Liberty is at stake –Right to government- provided attorneys –Right to trial by jury Civil law –Relations between individuals, and their legal rights –Typically monetary punishment

8. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Scope of Judicial Power Judicial power is passive and reactive Power only to decide justiciable disputes –Harm must have been done –Case must be ripe –Case cannot be moot –Case cannot be political

9. Copyright 2009 Pearson Education, Inc., Publishing as Longman Prosecuting Cases U.S. Department of Justice –Led by attorney general –Assisted by solicitor general –Provides public defenders

10. Copyright 2009 Pearson Education, Inc., Publishing as Longman Types of Federal Courts Article III (Constitutional) Versus Article I (Legislative) Courts Original Jurisdiction The authority of a court to hear a case “in the first instance” Appellate Jurisdiction The authority of a court to review decisions made by lower courts

11. Copyright 2009 Pearson Education, Inc., Publishing as Longman Level One: District Courts District courts hear nearly 258,000 civil cases and more than 68,000 criminal cases annually Use both grand juries and petit juries District judges are appointed by the president, subject to confirmation by the Senate, and hold office for life

12. Copyright 2009 Pearson Education, Inc., Publishing as Longman Level Two: Circuit Courts of Appeals The 11 U.S. Judicial Circuits

13. Copyright 2009 Pearson Education, Inc., Publishing as Longman Level Three: The Supreme Court

14. Copyright 2009 Pearson Education, Inc., Publishing as Longman Judicial Federalism: State and Federal Courts Dual court system Two court systems, state and federal, exist and operate at the same time in the same geographic areas

15. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Politics of Appointing Federal Judges No Constitutional requirements

16. Copyright 2009 Pearson Education, Inc., Publishing as Longman Making the Initial Choices Article II: --President has power to appoint --Senate has power of advice and consent Senatorial courtesy Chief Justice John Roberts (far right) congratulates Justice Samuel A. Alito, Jr. at his swearing-in ceremony as a new member of the Supreme Court

17. Copyright 2009 Pearson Education, Inc., Publishing as Longman Senate Advice and Consent Senate Confirmation Hearings Except for Robert Bork, most judicial nominees have refused to answer questions that might reveal how they would decide a case

18. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Role of Party, Race, and Gender Since FDR, only 10 percent of judicial appointments have gone to candidates of the opposition party Jimmy Carter brought increased diversity to the lower courts Ronald Reagan appointed fewer minorities, but was the first to appoint a woman to the Supreme Court Nearly 50 percent of Bill Clinton’s appointees were women and minorities Roughly 32 percent of George W. Bush’s nominees have been women and minorities

19. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Role of Judicial Philosophy

20. Copyright 2009 Pearson Education, Inc., Publishing as Longman Reform of the Selection Process The lengthy and embattled confirmation hearings of Robert Bork (1987) and Clarence Thomas (1991) led many to ask if the confirmation process was in need of reform

21. Copyright 2009 Pearson Education, Inc., Publishing as Longman How Do Cases Rise to the Supreme Court?

22. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Eight Steps to Judgment Reviewing appeals – Writ of certiorari – In forma pauperis –Docket Granting the appeal Briefing the case – Amicus curiae briefs Holding the oral argument Meeting in conference Explaining the decision –Opinions of the Court –Dissenting opinion –Concurring opinion Writing the opinion Releasing the opinion

23. Copyright 2009 Pearson Education, Inc., Publishing as Longman The Supreme Court Docket

24. Copyright 2009 Pearson Education, Inc., Publishing as Longman Influences on Supreme Court Decisions: The Chief Justice Appointed by the president upon confirmation by the Senate Responsible for assigning judges to committees, responding to proposed legislation that affects the judiciary, and delivering the annual Report on the State of the Judiciary Former Chief Justice William H. Rehnquist

25. Copyright 2009 Pearson Education, Inc., Publishing as Longman Influences on Supreme Court Decisions: Law Clerks Chosen by each justice Increased number over time, leading to longer and more elaborate opinions Debate over how much influence on Court decisions

26. Copyright 2009 Pearson Education, Inc., Publishing as Longman Influences on Supreme Court Decisions: The Solicitor General Represents the federal government before the Supreme Court Files amicus curiae briefs in cases in which the federal government is not a party

27. Copyright 2009 Pearson Education, Inc., Publishing as Longman Influences on Supreme Court Decisions: Citizens and Interested Parties Also may file amicus curiae briefs Increasingly used to counter the positions of the solicitor general and the government

28. Copyright 2009 Pearson Education, Inc., Publishing as Longman After the Court Decides Sometimes remands the case Uncertain effect on individuals who are not immediate parties to the suit Decisions are sometimes ignored Difficult to implement decisions requiring the cooperation of large numbers of officials

29. Copyright 2009 Pearson Education, Inc., Publishing as Longman Limits on Judicial Action: Adherence to Precedent Stare Decisis The rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented

30. Copyright 2009 Pearson Education, Inc., Publishing as Longman Limits on Judicial Action: Congress and the President Changing the numbers Changing the jurisdiction

31. Copyright 2009 Pearson Education, Inc., Publishing as Longman Debating the Proper Role of the Courts An independent judiciary is a hallmark of a constitutional democracy and a free society Yet, judicial independence is often criticized when judges make unpopular decisions