1. The Judiciary A Really Interesting APGOV PowerPoint

2. KINDS OF CASES LITIGANTS– plaintiff & defendant LITIGANTS– plaintiff & defendant JURY JURY CRIMINAL vs CIVIL CRIMINAL vs CIVIL STANDING TO SUE STANDING TO SUE CLASS ACTION LAWSUITS CLASS ACTION LAWSUITS AMICUS CURIAE BRIEFS AMICUS CURIAE BRIEFS CASES or CONTROVERSIES CASES or CONTROVERSIES JUSTICIABLE DISPUTES JUSTICIABLE DISPUTES

3. The Nature of the Judicial System Introduction: Introduction: Two types of cases: Two types of cases: Criminal Law: The government charges an individual with violating one or more specific laws. Criminal Law: The government charges an individual with violating one or more specific laws. Civil Law: The court resolves a dispute between two parties and defines the relationship between them. Civil Law: The court resolves a dispute between two parties and defines the relationship between them. Most cases are tried and resolved in state courts, not federal courts. Most cases are tried and resolved in state courts, not federal courts.

4. The Nature of the Judicial System Participants in the Judicial System Participants in the Judicial System Litigants Litigants Plaintiff - the party bringing the charge Plaintiff - the party bringing the charge Defendant - the party being charged Defendant - the party being charged Jury - the people (normally 12) who often decide the outcome of a case Jury - the people (normally 12) who often decide the outcome of a case Standing to sue - plaintiffs have a serious interest in the case. Standing to sue - plaintiffs have a serious interest in the case. Justiciable disputes – A case must be capable of being settled as a matter of law. Justiciable disputes – A case must be capable of being settled as a matter of law.

5. Standing to Sue There must be a real controversy between adversaries. There must be a real controversy between adversaries. Personal harm must be demonstrated. Personal harm must be demonstrated. Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved. Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved.

6. The Nature of the Judicial System Participants in the Judicial System Participants in the Judicial System Groups Groups Use the courts to try to change policies. Use the courts to try to change policies. Amicus Curiae briefs are used to influence the courts. Amicus Curiae briefs are used to influence the courts. Attorneys Attorneys Legal Services Corporation - lawyers to assist the poor Legal Services Corporation - lawyers to assist the poor Access to quality lawyers is not equal. Access to quality lawyers is not equal.

7. Jurisdiction Original jurisdiction: where the case is heard first, usually in a trial. Original jurisdiction: where the case is heard first, usually in a trial. Appellate jurisdiction: cases brought on appeal from a lower court. Appellate jurisdiction: cases brought on appeal from a lower court.

8. Structure of the Federal Courts District Courts: the entry point for most litigation in federal courts, trial courts. District Courts: the entry point for most litigation in federal courts, trial courts. Courts of Appeal: review all final decisions of district courts, with the authority to review and enforce orders of regulatory agencies. Courts of Appeal: review all final decisions of district courts, with the authority to review and enforce orders of regulatory agencies. Supreme Court: sets its own agenda. Supreme Court: sets its own agenda.

9. Federal District Courts

11. The Structure of the Federal Judicial System The Supreme Court The Supreme Court 9 justices – 1 Chief Justice, 8 Associate Justices 9 justices – 1 Chief Justice, 8 Associate Justices Supreme Court decides which cases it will hear Supreme Court decides which cases it will hear Some original jurisdiction, but mostly appellate jurisdiction. Some original jurisdiction, but mostly appellate jurisdiction. Most cases come from the federal courts Most cases come from the federal courts Most cases are civil cases Most cases are civil cases

12. Federal Cases Federal question cases: involving the U.S. Constitution, federal law, or treaties. Federal question cases: involving the U.S. Constitution, federal law, or treaties. Diversity cases: involving different states, or citizens of different states. Diversity cases: involving different states, or citizens of different states.

13. Federal Cases Some cases that begin in state courts can be appealed to the Supreme Court. Some cases that begin in state courts can be appealed to the Supreme Court. Controversies between two state governments can only be heard by the Supreme Court. Controversies between two state governments can only be heard by the Supreme Court.

14. The Structure of the Federal Judicial System

15. Selecting Judges Party background has a strong effect on judicial behavior. Party background has a strong effect on judicial behavior. Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts). Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts).

16. The Politics of Judicial Selection The Lower Courts The Lower Courts Senatorial Courtesy: Senatorial Courtesy: Unwritten tradition where a judge is not confirmed if a senator of the president’s party from the state where the nominee will serve opposes the nomination. Unwritten tradition where a judge is not confirmed if a senator of the president’s party from the state where the nominee will serve opposes the nomination. Has the effect of the president approving the Senate’s choice Has the effect of the president approving the Senate’s choice President has more influence on appellate level President has more influence on appellate level

17. Selecting Judges Presidents seek judicial appointees who share their political ideologies. Presidents seek judicial appointees who share their political ideologies. This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations. This raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations.

18. The Politics of Judicial Selection The Supreme Court The Supreme Court President relies on attorney general and DOJ to screen candidates. President relies on attorney general and DOJ to screen candidates. 1 out of 5 nominees will not make it. 1 out of 5 nominees will not make it. Presidents with minority party support in the Senate will have more trouble. Presidents with minority party support in the Senate will have more trouble. Chief Justice can be chosen from a sitting justice, or a new member. Chief Justice can be chosen from a sitting justice, or a new member.

19. All about longevity of partisan control All about longevity of partisan control Fed No. 76 – Hamilton – make sure unfit is denied- otherwise merit prevailed Fed No. 76 – Hamilton – make sure unfit is denied- otherwise merit prevailed NOW …partisan NOW …partisan Senatorial Courtesy – District / Circuit Senatorial Courtesy – District / Circuit SCOTUS appt? Pres advisors & top Justice officials compile list. SCOTUS appt? Pres advisors & top Justice officials compile list. TENSION in Judicial Appointments

20. Background check Background check ABA committee ABA committee FBI FBI NOW THE BATTLE - SENATE Why denied if qualified? Too conservative or liberal- ORIGINAL INTENT - BORK CONT

21. Public Opinion and the Courts Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court. Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court. Appointment process and life terms insulate justices from public opinion. Appointment process and life terms insulate justices from public opinion. Impeachment and lack of enforcement powers mean justices are not completely isolated from public opinion. Impeachment and lack of enforcement powers mean justices are not completely isolated from public opinion.

22. Writs of Certiorari Requires agreement of four justices to hear the case - RULE OF FOUR Requires agreement of four justices to hear the case - RULE OF FOUR Involving significant federal or constitutional question Involving significant federal or constitutional question Involving conflicting decisions by circuit courts Involving conflicting decisions by circuit courts Involving Constitutional interpretation by one of the highest state courts Involving Constitutional interpretation by one of the highest state courts Court will “grant cert” or “deny cert” Court will “grant cert” or “deny cert”

25. The Supreme Court in Action Most cases arrive through a writ of certiorari. Most cases arrive through a writ of certiorari. Lawyers then submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues. Lawyers then submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues. Oral arguments are given by lawyers after briefs are submitted. Oral arguments are given by lawyers after briefs are submitted.

26. Kinds of Court Opinions Per curiam: brief and unsigned Per curiam: brief and unsigned Opinion of the court: majority opinion Opinion of the court: majority opinion Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning Dissenting opinion: minority opinion- why important? Dissenting opinion: minority opinion- why important?

27. The Courts as Policymakers Making Decisions, continued Making Decisions, continued Stare decisis: to let the previous decision stand unchanged. Stare decisis: to let the previous decision stand unchanged. Precedents: How similar past cases were decided. Precedents: How similar past cases were decided. Original Intent: The idea that the Constitution should be viewed according to the original intent of the framers. Original Intent: The idea that the Constitution should be viewed according to the original intent of the framers.

28. Constitutional Interpretation Strict construction/restraint: judges are bound by the wording of the Constitution; judges are interpreters, not policy-makers. Strict construction/restraint: judges are bound by the wording of the Constitution; judges are interpreters, not policy-makers. Judicial activism: judges should look to the underlying principles of the Constitution, and this can result in new policy. Judicial activism: judges should look to the underlying principles of the Constitution, and this can result in new policy. Today: most activists tend to be liberal?? most strict constructionists tend to be conservative?? Today: most activists tend to be liberal?? most strict constructionists tend to be conservative?? BUT it is also in the eye of the beholder BUT it is also in the eye of the beholder http://www.youtube.com/watch?v=kHvgiEWH6A 4 http://www.youtube.com/watch?v=kHvgiEWH6A 4 http://www.youtube.com/watch?v=kHvgiEWH6A 4 http://www.youtube.com/watch?v=kHvgiEWH6A 4

29. Understanding the Courts What Courts Should Do: The Scope of Judicial Power What Courts Should Do: The Scope of Judicial Power Judicial restraint: judges should play a minimal policymaking role - leave the policies to the legislative branch. Judicial restraint: judges should play a minimal policymaking role - leave the policies to the legislative branch. Judicial activism: judges should make bold policy decisions and even charting new constitutional ground. Judicial activism: judges should make bold policy decisions and even charting new constitutional ground. Political questions: means of the federal courts to avoid deciding some cases. Political questions: means of the federal courts to avoid deciding some cases. Statutory construction: the judicial interpretation of an act of Congress. Statutory construction: the judicial interpretation of an act of Congress.

30. Arguments for Judicial Activism Courts should correct injustices when other branches or state governments refuse to do so. Courts should correct injustices when other branches or state governments refuse to do so. Courts are the last resort for those without the power or influence to gain new laws. Courts are the last resort for those without the power or influence to gain new laws.

31. Arguments Against Judicial Activism Judges lack expertise in designing and managing complex institutions. Judges lack expertise in designing and managing complex institutions. Initiatives require balancing policy priorities and allocating public revenues. Initiatives require balancing policy priorities and allocating public revenues. Courts are not accountable because judges are not elected. Courts are not accountable because judges are not elected.

32. Checks on Judicial Power Judges have no enforcement mechanisms Judges have no enforcement mechanisms Confirmation and impeachment proceedings Confirmation and impeachment proceedings Changing the number of judges Changing the number of judges Revising legislation Revising legislation Amending the Constitution Amending the Constitution Altering jurisdiction Altering jurisdiction

33. The Courts and the Policy Agenda A Historical Review A Historical Review John Marshall and the Growth of Judicial Review John Marshall and the Growth of Judicial Review Marbury v. Madison Marbury v. Madison Judicial review: courts determine constitutionality of acts of Congress Judicial review: courts determine constitutionality of acts of Congress The “Nine Old Men” The “Nine Old Men” The Warren Court The Warren Court The Burger Court The Burger Court The Rehnquist Court The Rehnquist Court

34. Judicial Review Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions. Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions. It is the chief judicial weapon in the checks and balances system. It is the chief judicial weapon in the checks and balances system.

35. National Supremacy Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional. Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional. McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly and federal law is supreme over state law. McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly and federal law is supreme over state law.

36. Understanding the Courts The Courts and Democracy The Courts and Democracy Courts are not very democratic Courts are not very democratic Not elected Not elected Difficult to remove Difficult to remove The courts do reflect popular majorities The courts do reflect popular majorities Groups are likely to use the courts when other methods fail – promoting pluralism Groups are likely to use the courts when other methods fail – promoting pluralism There are still conflicting rulings leading to deadlock and inconsistency There are still conflicting rulings leading to deadlock and inconsistency