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2 THE JUDICIARY-chapter 10 AP Book http://docket.medill.northw php

3 What are the qualifications per the Constitution to be on the Supreme Court? Discuss the nomination process. Page 369 What part does the FBI play in this process? What part does the American Bar Association play? What is the Federalist Society?

4 The Constitution and the National Judiciary Article III of the Constitution establishes: –a Supreme Court in which the judicial power of the United States is vested –life tenure with good behavior for judges –judges receive compensation that cannot be diminished during their service –such inferior courts as Congress may choose to establish –the original jurisdiction of the Supreme Court The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.

5 Article III - Supreme Court President appoints Senate confirms

6 Generally speaking, the Court will hear cases involves a basic constitutional principle an important question of federal law conflict between state and federal laws Handout: How well do you know your U.S. Supreme Court?

7 John Paul Stevens – Ford-retired Samuel Alito-George W. Bush *John Roberts-George W. Bush (chief justice) Antonio Scalia - Reagan Anthony Kennedy - Reagan David Souter – Bush-retired Clarence Thomas - Bush Ruth Bader Ginsburg - Clinton Stephen Breyer – Clinton Sonia Sotomayor-Obama Elena Kagan-Obama Supreme Court 2011

8 Nomination and Confirmation The president usually tries to nominate a justice whose political philosophy is similar to his/her own The nominee must win approval of the Senate We refer to periods by the Chief Justice (Berger Court, Warren Court, Rehnquist Court, Roberts Court) Solicitor General-nine and a half member

9 Political Philosophy Court - an ever changing political institution that fluctuates between liberalism and conservatism as well as activism and restraint.

10 Judicial Review Judicial review is the power of a court to decide if a law or other legal issue contravenes the Constitution, and overturn it. This power is not mentioned in the Constitution. Judicial review was established by the Marshall Court for itself and posterity in Marbury v. Madison (1803). Marbury's long-term effect has been to allow the Court to have the final say in what the Constitution means.

11 Judicial Review Judges have used this power sparingly. The power has only been used about 140 times to strike down acts of Congress. Although more frequently (over 1200 times) to invalidate acts of state legislatures.

12 http://sunnylandsclassroom. org/Asset.aspx?id=1468 The American legal system is a dual system: –state courts--actually 50 different 'systems' –federal courts Both systems have three tiers: JUDICIARY ACT OF 1789 Annenberg classroom-How a trial works video. –trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction) –appellate courts--decide questions of law, not fact (appellate jurisdiction) –high or supreme courts- FIGURE 10.1 PG. 357

13 Judicial Activism The Court should take an active role in using its powers to check the actions of Congress, legislatures, the executive branch and agencies. Examples: Roe v. Wade-1973 Brown v. Board of Education-1954

14 Judicial Restraint The Supreme Court should defer to the decisions made by elected representatives of the people in the legislative and executive branches.



17 Federal Selection Process The selection of judges is a very political process. Judges are nominated by the president and confirmed by the Senate. –Often presidents solicit suggestions from members of the House of Representatives, Senators, their political party, and others. Provides president opportunity to put philosophical stamp on federal courts


19 How the Justices Vote Legal Factors Judicial Philosophy –Judicial Restraint - advocates minimalist roles for judges, and the latter –Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty. Precedent –Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature. –STARE DECISIS

20 Extra-Legal Factors-Roper v. Simmons 2005 Behavioral Characteristics –The personal experiences of the justices affect how they vote. Early poverty, job experience, friends and relatives all affect how decisions are made. Ideology –Ideological beliefs influence justices' voting patterns. The Attitudinal Model –A justice's attitudes affect voting behavior. Public Opinion-World Opinion –Justices watch TV, read newspapers, and go to the store like everyone else. They are not insulated from public opinion and are probably swayed by it some of the time. How the Justices Vote


22 GO TO MIRANDA ACTIVITY rch/?q=miranda+v.+arizona&fq_gr ade=PK&fq_grade=PS Go to favorites: Time Odd Todd cartoon on Miranda.

23 Demystifying the Cert Process The Supreme Court is not and has never been primarily concerned with the correction of errors in lower court decisions. - Chief Justice Vinson

24 The Certiorari Process The Supreme Court is not and has never been primarily concerned with the correction of errors in lower court decisions. - Chief Justice Vinson

25 The Courts Primary Role To resolve conflicts in lower courts; interpret the constitution, laws and treaties of the United States In other words: To secure the national rights and uniformity of judgments »John Rutledge at the Constitutional Convention

26 U.S. District Court – 94 districts Federal Trials U.S. Circuit Court of Appeals: 12 circuits + Federal Circuit FEDERAL: 1 million cases/yr STATES: 30 million cases/yr Trial Courts – municipal or county Local Trials State Supreme Court – highest state court Intermediate Appeals Court U.S. Supreme Court Original Jurisdiction ~80% of cases accepted come from federal system <1% of cases accepted are original jurisdiction ~ 80 Decisions

27 Fed. DC

28 How many cert petitions are considered? In recent terms, there have been between 7,000 and 9,000 cases appealed to the Supreme Court each year Out of approx. 8,000 petitions in the average year, about 70 to 75 are granted (0.9%) Paid Petitions Petitions that pay the $300 filing fee In forma pauperis litigants who cant pay the filing fee (often prisoners) ~20% of petitions~80% of petitions 3-4% granted0.2% granted Make up 85-90% of docket Make up 10-15% of docket

29 Cert: The Numbers in 2008-09 6,142 IFP Petitions 1,596 paid Petitions 78 cases argued, 75 decided after argument About 1% of all petitions! 7,738 total Petitions + Statistics compiled from Chief Justice Robertss 2009 Year-End Report on the Federal Judiciary and SCOTUSBlog, 6.29.09 StatPack

30 Cert: The Justices Role With 8,000 petitions per year: If a Justice spent 40 hours per week, 50 weeks per year ONLY reading cert petitions, they would be able to allocate approximately 15 minutes to each petition (which may include the petition itself, the brief in opposition, a reply brief, and amicus briefs). The Justices cannot possibly read all the cert petitions. They just dont have the time.

31 Cert Pool IN the poolNOT in the pool Roberts Scalia Kennedy Sotomayo r Thomas Ginsburg Breyer Stevens Alito = 4 clerks x 7 justices = 28 law clerks read 8,000 petitions Each clerk reads and writes a memo on 285 petitions/yr 4 clerks x 2 justices = 8 law clerks read 8,000 petitions Each clerk reads 1000 petitions/yr =

32 Advantages of the Pool Saves time Someone is more thoroughly going over each petition Clerks from other chambers can mark up pool memos and give to their justice

33 Disadvantages of the Pool Reduces independence if seven of the nine justices are in the pool and theyre relying on one writer for each memo The pool gives clerks - generally one year out of law school and only at the Court for one year - too much responsibility for setting the Courts agenda

34 Discuss List The Chief Justice generates a discuss list, based on memos prepared by clerks. Other justices may add to the list. All cases generated by Solicitor General (head Supreme Court lawyer for federal government) are automatically discussed All Capital Cases discussed (no such thing as a frivolous case here)

35 The Rule of Four If four justices vote to grant cert, it is granted Designed to prevent tyranny of the majority If a case does not gain four votes, a justice may write a dissent from denial, but this is extremely rare All votes are secret

36 More cert-worthy criteria Conflict in lower courts Important –Multiple amicus briefs at cert stage –Affects large number of people –Unique/one of a kind case this Court must decide

37 More reasons to deny than to grant! A better case in the pipeline The issue hasnt percolated enough A petition that raises too many questions (prefer focusing on one issue) Bad vehicle for reaching this legal issue Case is deemed frivolous

38 Whats important is the legal issue raised, not the parties or facts Assumption is: a better case will come along if the issue is important Dont want to risk producing a fractured opinion (4-4-1 or 4-2-3 splits)

39 Petitions filed by individuals are lower priority Ranking tends to be: #1 - U.S. government #2 - Corporations #3 - States #4 - Organized groups #5 - Individuals

40 Go to cert activity

41 Then again… It is really hard to know what makes up the broth of the certification process… Some cases are ones you can just smell as grants. Supreme Court Justice, 1990 http://supremecourt.c-

42 How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and Amicus Briefs submitted Justices Conference Cases discussed Votes taken Opinion Assigned Opinions Announced Opinions Drafted and Circulated Oral Argument


44 Landmark Cases Marbury vs. Madison (1803) judicial review McCulloch vs. Maryland (1819) upheld implied powers clause-to tax a bank Gibbons vs. Ogden (1824) power to regulate interstate commerce, federal law prevails over state law Dred Scott vs. Sandford (1857) contributed to the Civil War

45 Landmark Cases cont. Plessy vs. Ferguson (1896) separate but equal Brown vs. Board of Education (1954) separate is inherently unequal Baker vs. Carr (1962) reapportionment, one person one vote Roe vs. Wade (1973) right to privacy Gideon v. Wainwright (1961) right to counsel GO TO DVD

46 SELECTED SUPREME COURT CASES In your textbook: pages 744-750. You have a quick reference for cases.

47 The Supreme Court Today According to a 1990 poll, only 23% of Americans knew how many justices sit on the Supreme Court, and two-thirds could not name a single member. In 1998, a poll of teenagers showed that only 2% could name the Chief Justice. Yet, Supreme Court decisions have been credited with strengthening the Constitution, increasing the power of the federal govt., starting the Civil War, reshaping race relations, restoring fairness to our electoral system, redefining the rights of women, and most recently deciding a presidential election!

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