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THE FEDERAL JUDICIARY. INTRODUCTION Foreign visitors are often amazed at the power of American judges. 1834: French aristocrat Alexis de Tocqueville wrote:

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1 THE FEDERAL JUDICIARY

2 INTRODUCTION Foreign visitors are often amazed at the power of American judges. 1834: French aristocrat Alexis de Tocqueville wrote: “If I were asked where I place the American aristocracy, I should reply without hesitation … that it occupies the judicial bench and bar… Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”

3 INTRODUCTION A century later, British political scientist Harold J. Laski observed, “The respect in which federal courts, and above all, the Supreme Court are held is hardly surpassed by the influence they exert on the life of the United States.”

4 INTRODUCTION Why do judges play such a central role in our political life. Chief John Marshall in 1803 successfully claimed for judges the power of judicial review, that is, the power to authoritatively interpret the Constitution.

5 INTRODUCTION Justice Felix Frankfurter suggested tersely: “ The Supreme Court is the Constitution.” Judges – and not those on the Supreme Court – are also asked to resolve disputes involving billions of dollars, decide conflicts among competing interest groups, supervise the criminal justice system, and make rules affecting the lives of millions of people.

6 INTRODUCTION Judges not only settle legal conflicts but in some cases have overseen the operation of schools, prisons, mental hospitals, and complex businesses. Sometimes they decide the details of how these institutions should be run. Still, the scope and nature of judicial power limit the role of judges.

7 THE SCOPE OF JUDICIAL POWER The American judicial system rests on the adversary system. A court of law is a neutral arena in which two parties argue their differences and present their points of view before an impartial arbiter. The adversary system is based on the fight theory, which holds that arguing over law and evidence, which may or may not arrive at the truth, guarantees fairness in the judicial system. The adversary system thus imposes restraints on the exercise and scope of judicial power.

8 THE SCOPE OF JUDICIAL POWER Judicial power is essentially passive and reactive. Judges cannot instigate cases. Also not all disputes are within the scope of judicial power. Judges decide only justiciable disputes – lawsuits that grow out of actual controversies and are capable of judicial resolution. Judges do not use their power unless there is a real case or controversy. It is not enough for a judge merely to have a general interest in a subject or to believe that a law is unconstitutional.

9 THE SCOPE OF JUDICIAL POWER The party bringing a lawsuit (the plaintiff) must have standing to sue; this means that the plaintiff must have sustained or be in immediate danger of sustaining a direct and personal injury. Plaintiffs may not raise hypothetical issues; they must have a real dispute and opposing interests with another party. Traditionally, individuals had to show actual monetary damage in order to gain standing to sue. But in recent decades, the Supreme Court has granted standing to individuals who claim nonmonetary injuries that are shared by others.

10 THE SCOPE OF JUDICIAL POWER The Supreme Court has said that aesthetic and environmental well-being are important factors in the quality of life and the fact that environmental interests are shared by many rather than a few does not make them less deserving of legal protection. Individuals must still claim a personal injury – the violation of a constitutional or other legal right – and show a “personal stake in the outcome.” But they may now bring suits over environmental damages, defective consumer products, and other matters that affect interest groups and large numbers of people.

11 THE SCOPE OF JUDICIAL POWER A related and increasingly important development is the sue of class action suits, in which a small number of persons represent all other people similarly situated – a suit on behalf of all students in a university, for example, or all persons who smoke a particular brand of cigarettes.

12 THE SCOPE OF JUDICIAL POWER These lawsuits may force major changes in public policy – governing, for example, the operation of prisons – and business practices, such as marketing of defective and harmful products. In recent years, tobacco companies, drug mfgs., and financial institutions have confronted a series of class action lawsuits and have been ordered to pay damages.

13 THE SCOPE OF FEDERAL POWER When individuals sue each other over a traffic accident, for instance, they file suits under civil law and seek monetary awards. The govt., may also bring civil lawsuits against individuals and business. But only the govt., may prosecute individual crimes, like carjacking, as defined in state and federal criminal law. Persons accused of crimes are guaranteed certain rights in the Bill of Rights and must be accorded the due process of law. If convicted = imprisonment or sentenced to death.

14 THE SCOPE OF FEDERAL POWER Judges decide cases; they do not prosecute people for allegedly committing crimes. Prosecutors decide whether to charge an offence and which offense to charge. They have largely unreviewable discretion, so long as they have probable cause to believe that the accused has committed an offense. Prosecutors negotiate with the lawyers for defendants and often work out a plea bargain, whereby defendants agree to plead guilty to a lesser charge to avoid having to stand trial and face sentence for a more serious offense. Prosecutors also make recommendations to judges about what sentences to impose.

15 THE SCOPE OF JUDICIAL POWER Federal Level: The job of prosecution falls to the Dept. of Justice: the attorney general, the solicitor general, the 94 U.S. attorneys, and some 1,200 assistant attorneys. The President, with the consent of the Senate, appoints a U.S. attorney for each district court. U.S. attorneys serve four- year terms but may be dismissed by the President at any time. These appts., are of great interest to Senators, who exercise significant influence over the selection process. Since U.S. attorneys are almost always members of the President’s political party, it is customary to resign if the opposition party wins the WH.

16 THE SCOPE OF JUDICIAL POWER The attorney general, in consultation with the U. S. attorney in each district, appoints assistant attorneys. Some districts only have one; the largest the Southern District of New York, has more than 65. These attorneys, working with the U.S. attorney and assisted by the FBI and other federal law enforcement agencies, begin proceedings against those alleged to have broken federal laws. They also represent the USA in civil suits.

17 THE SCOPE OF JUDICIAL POWER Courts cannot solve all disputes. Some raise political questions that would require the use of methods not suitable for a court, for which there is no legal remedy or which the Const., explicitly assigns to Congress or the president to decide.

18 THE SCOPE OF JUDICIAL POWER Such is the case with many questions arising from foreign affairs: Which of two competing state govts is the proper one? Which group of officials of a state or foreign nation should the USA recognize as the govt.? When the President sends the military into international conflicts with congressional authorization, has the constitutional provision that only Congress can “declare war” been violated?

19 THE SCOPE OF JUDICIAL POWER The political question doctrine is admittedly circular, and the SC ultimately decides what is and is not a “political question.” In 2000, for instance, most observers thought that the SC would refuse to allow itself or the federal courts to become involved in deciding which votes from FL should be counted in the presidential election.

20 THE SCOPE OF JUDICIAL POWER There is hardly anything more political than a presidential election. Also, the Const., specifically charges Congress with the responsibility for counting electoral votes.

21 THE SCOPE OF JUDICIAL POWER Nonetheless, the SC accepted the case in Bush v. Gore, deliberated promptly, and by a bare 5-4 majority stopped the recount of votes. The four dissenters contended that the matter should have been left to the political branches to decide.

22 TYPES OF LAWS Statutory Law: Law that comes from authoritative and specific lawmaking sources, primarily legislatures but also including treaties and executive orders. Common Law: Judge-made law. The common law continues to develop according to the rule of stare decisis, which means “let the decision stand.” This is the rule of precedent, which implies that a rule established by a court is to be followed in similar cases. Equity Law: Law used whenever common law remedies are inadequate. For example, if an injury done to property may do irreparable harm for which money damages cannot provide compensation, under equity a person may ask the judge to issue an injunction ordering the offending person not to take the threatened action. If the wrongdoer persists, he or she may be punished for contempt of court.

23 TYPES OF LAWS Const., Law: Statements interpreting the Const., that have been given SC approval. Admiralty and Maritime Law: Law applicable to cases concerning shipping and waterway commerce on the highs seas and on the navigable waters of the USA. Administrative Law: Law relating to the authority and procedures of admin., agencies as well as to the rules and regulations issued by agencies. Criminal Law: Law that defines crimes against the public order and provides for punishment.

24 TYPES OF LAWS Civil Law: Law that governs the relations between individuals and defines their legal rights. However, the govt., can also be a party to a civil action. Under the Sherman Antitrust Act, for example, the federal govt., may initiate civil as well as criminal action to prevent violations of law.

25 JUDICIAL FEDERALISM

26 Most countries have a unitary judicial system. But the USA has a dual judicial system of federal and state courts. Along side of the federal judiciary, each state maintains a judiciary of its own, and many municipalities have judicial systems as complex as those of the states. Within both federal and state systems, judicial power is further divided between trial courts and one or more levels of appellate courts, which hear appeals from lower courts. The federal and state courts are related, but not in a superior-inferior hierarchy.

27 JUDICIAL FEDERALISM State courts primarily interpret and apply their state constitutions and law. When their decisions are based solely on state law, their rulings may not be appealed to or reviewed by federal courts. Only decisions that raise a federal question, involving the application of the BofR or other federal law, are federal courts able to review.

28 JUDICIAL FEDERALISM Fed., courts have writ of habeas corpus jurisdiction – the power to release persons from custody if a judge determines that they are not being detained constitutionally – and may review criminal convictions in state courts for violations of the fed., constitutional and legal rights of the accused.

29 JUDICIAL FEDERALISM Other than the original jurisdiction the Const., vests directly in the SC, no federal court has any jurisdiction except that granted to it by an act of Congress. Congress also determines whether the judicial power of the USA is exercised exclusively by fed., courts or concurrently by both fed., and state courts.

30 JUDICIAL FEDERALISM Most litigation occurs in state courts, which annually face tens of millions of civil and criminal cases. The type of litigation in state courts also tends to differ from that in federal courts. Apart from criminal cases, the largest portion of state court cases involves economic issues – state regulation of public utilities, zoning and small business, labor relations, natural resources, energy, and environment. Litigation varies from state to state depending on the size of population, urbanization, and the economy.

31 JUDICIAL FEDERALISM: MASSACHUSETTS COURTS

32 THE FEDERAL JUDICIAL SYSTEM

33 Article III of the Constitution states: “The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establishment.” Courts created to carry out this judicial power are called Article III or constitutional courts. Congress may also establish Article I or legislative courts – courts, for instance, to handle bankruptcies and veterans’ appeals – to carry out the legislative powers the Const., has granted it.

34 THE FEDERAL JUDICIARY The main difference between a constitutional court and legislative court is that the judge of a legislative court need to be appointed to “hold their Offices during good Behavior,” and may be assigned other than purely judicial duties, such as supervising tax collections. Constitutional court judges basically have lifetime appointments, subject to removal by impeachment. Only 11 federal judges have been impeached by the House of Representatives. 7 have been convicted and removed by the Senate.

35 THE FEDERAL JUDICIARY The Const., requires a SC. The SC is a necessity of the national govt., is to have the power to make and enforce laws that take precedence over those of the states.

36 THE FEDERAL JUDICIARY The lack of a SC to maintain national supremacy, ensure uniform interpretation of national legislation, and resolve conflicts between states was one of the glaring weaknesses of the govt., under the Articles of Confederation.

37 THE FEDERAL JUDICIARY Congress decides whether there will be other courts in addition to the SC. The First Congress, in the Judiciary Act of 1789, divided the nation into circuits (geographical areas) and created lower courts for each. Today the hierarchy of federal courts of general jurisdiction consists of district courts, courts of appeals, and the Supreme Court (refer to chart).

38 THE FEDERAL JUDICIARY In cases affecting ambassadors, other public ministers, and consuls and in cases in which a state is a party, the S.C., had original jurisdiction – the authority of a court to hear a case “in the first instance.” In all other cases, the S.C., has appellate jurisdiction – power to review decisions of other courts and agencies – as determined by Congress. Of course, the S.C., has final word on the constitutionality of laws passed by Congress.

39 JURISDICTION OF FEDERAL COURTS Fed., courts can hear and decide cases or controversies in law and equity in the following circumstances: 1. If they arise under the Constitution, a federal law, or treaty. 2. If they arise under admiralty and maritime laws. 3. If they arise because of a dispute involving land claimed under titles granted by two or more states. 4. If the USA is a party to the case. 5. If a state is a party to the case (but not if the suit was begun or prosecuted against a state by an individual or a foreign nation.) 6. If they are between citizens of different states (Congress has chosen to limit this diversity jurisdiction of fed., courts to cases in which the amount in controversy exceeds $50,000). 7.If the affect the accredited representatives of a foreign nation.

40 THE FEDERAL JUDICIARY: THE DISTICT COURTS

41 THE FEDERAL JUDICIARY: THE DISTRICT COURTS Although the SC receives all the attention, the workhorses of the federal judiciary are the district courts. These courts hear hundreds of thousand civil cases and tens of thousands of criminal cases per year Each state has at least one district court. Larger states have as many as the demands of judicial business and the pressure of politics demand. MA., has 2. RI has 1. No state has more than 4.

42 THE FEDERAL JUDICIARY: THE DISTRICT COURTS There are 665 judges in 94 district courts, located in each of the 50 states, the District of Columbia, and Puerto Rico. Each federal circuit has at least one district judge but may have as many as 99. MA. = 13 RI = 3

43 THE FEDERAL JUDICIARY: THE DISTRICT COURTS The district courts are the trial courts of original jurisdiction. They are the only federal courts that employ grand juries and petit juries. When cases tried before district judges involve citizens of different states, judges apply the appropriate state laws. Otherwise, district judges are concerned with federal laws. For example, they decide cases involving crimes against the USA – suits under the national revenue, postal, patent, copyright, trademark, bankruptcy, and civil rights laws.

44 THE FEDERAL JUDICIARY: THE COURTS OF APPEALS

45 The decisions of district courts may be appealed and reviewed by federal courts of appeals, although reapportionment and voting rights cases decided by three judge panels are taken directly to the SC. Courts of Appeals are located in 11 judicial circuits that include all states and U.S. territories. A 12 th is located in the District of Columbia and hears the largest number of cases challenging federal statutes, regulations, and administrative decisions. The 13 th appellate court is the Court of Appeals for the Federal District, located in D.C. and has national jurisdiction, though it primarily deals with appeals in patent, copyright, and international trade cases.

46 THE FEDERAL JUDICIARY: THE COURTS OF APPEALS

47 The largest circuit is the 9 th, with 28 circuit judges and 99 district judges. It is geographically the size of Western Europe and contains 20% of the U.S. population. Each court of appeals consists of 6 to 28 permanent judgeships (179 in all). The First Circuit, which includes New England and Puerto Rico has 8 judges. These courts normally hear cases in panels of 3 judges. But in especially important and controversial cases, all judges may be present; that is, they sit en banc. They annually hear more than 50,000 appeals.

48 THE FEDERAL JUDICIARY: THE COURTS OF APPEALS Although the courts of appeals have only appellate jurisdiction, they are powerful policy makers. Fewer than 1% of their decisions are appealed to the SC. As the policy-making role of federal courts has become a prominent political issue, more attention has been focused on these courts and the judges who serve them. One current controversy is the growing failure of appellate courts to publish their opinions, due to their growing caseloads, and whether published opinions are binding precedents. Another controversy revolves around whether the number of judges should be increased to keep pace with rising caseloads.

49 THE POLITICS OF APPOINTING FEDERAL JUDGES

50 The selection of federal judges has always been a significant part of the political process. It makes a difference who serves on the federal courts. (?) As the courts play an even more important role in the political process and as more and more interests – women, other minorities for example – participate in that process, judicial selection politics has come front and center on the political stage. The President selects federal judges with the advice and consent of the Senate. Political reality imposes constraints on the president’s discretion, so the selection of a federal judge is actually a complex bargaining process.

51 THE POLITICS OF APPOINTING FEDERAL JUDGES The principal figures involved are the candidates, president, and the “subpresidency for judicial selection, consisting of key members of DoJ, U.S. senators, the ABA, party leaders, and, increasingly interest groups. In addition, recent presidents have inserted the WH much more directly into the process than their predecessors did. DoJ officials and key WH staff meet often to review proposed candidates and present recommendations to the President.

52 THE POLITICS OF APPOINTING FEDERAL JUDGES Before the WH submits names of nominees for federal judgeships, it observes the practice of senatorial courtesy – the custom of submitting the names of prospective appointees for approval to the senators from the states in which the appointees are to work. Senatorial courtesy does not extend to nominees to the SC since they have national jurisdiction. Liberal and conservative interest groups also play a role in the selection and confirmation of federal judges. (?)

53 THE POLITICS OF APPOINTING FEDERAL JUDGES President Obama has appointed 173 federal judges: 2 SC Justices (two women – Justice Sotomayor and Justice Kagan) 30 Courts of Appeals 141 District Courts 31 nominations are awaiting Senate action. There are currently 15 vacancies on the Courts of Appeals There are currently 55 vacancies on the District Courts. There are 19 anticipated vacancies during President Obama’s second term.

54 THE POLITICS OF APPOINTING FEDERAL JUDGES Factors contributing to the selection and confirmation process: The Role of Party The Role of Gender The Role of Race The Role of Ideology The Role of Judicial Philosophy **The Role of Judicial Philosophy: Key questions: Does the nominee believe in judicial self- restraint? Does the nominee believe in judicial activism? The answers to these questions can derail a nominee’s chances.

55 DO JUDGES MAKE LAW? Do judges make law? NH Justice Jeremiah Smith said: “Do judges make law? Course they do. Made some myself.” Judges are not that forthcoming about making law. For many it is disturbing that judges make law. Why?

56 DO JUDGES MAKE LAW? Many people equate a judge’s role with that of a referee because of their role in trials and the adversary system. We expect referees to be impartial and disinterested, treating both parties as equals. We expect them to apply rules, not make them. Laws are not made, however, in the same way as rules of a sport, and therein lies the answer to our question. Not only do judges make law, but they must! Legislatures make law by enacting statues, but judges must apply the statues to concrete situations. Laws are written in broad language and terms. Courts must judge their application in concrete cases.

57 DO JUDGES MAKE LAW? The problems of interpreting and applying laws are intensified when judges are required to apply our 224 year old Constitution. The Constitution is written in full of generalizations. Some examples: “unreasonable search and seizures” “Commerce among several states.” “due process of law.” “equal protection of the laws.”

58 DO JUDGES MAKE LAW? Recourse to the intent of the framers or to the words of the Const., may not help judges facing cases involving multinational corporations or the Internet. The framers could never foresee the incredible advances the country would make.

59 ADHERENCE TO PRECEDENT

60 Just because judges make policy, they are not free to do whatever they wish. They are subject to a variety of limits on what they decide – some imposed by the political system. Some imposed by higher courts and the legal profession.

61 ADHERENCE TO PRECEDENCE Among these is the policy of stare decisis – the rule of precedent. Stare decisis pervades our judicial system and promotes certainty, uniformity, and stability in law. Judges are expected to abide by previous decisions of their own courts and by rulings of superior courts.

62 ADHERENCE TO PRECEDENT Although adherence to precedent is the norm, it is very restrictive. Judges may distinguish between precedents because of differences in the context of cases, and may questions of law have conflicting precedents that can be used to support a decision for either party.

63 ADHERENCE TO PRECEDENT The doctrine of stare decisis is less controlling in the field of constitutional law. Because the Const., is binding, the SC can reverse a decision it no longer wishes to follow, as it has done hundreds of times. Since 1789, the SC has reversed 217 of its own decisions. It has overturned more than 160 acts of Congress. More than 960 pieces of state legislation and state constitutional provisions. And more than 115 city ordinances.

64 THE SUPREME COURT AND HOW IT OPERATES

65 The Supreme Court’s term runs from the first Monday in October through the end of June. The justices listen to oral arguments for two weeks from October to April. They then adjourn for two weeks to consider cases and to write their opinions. By agreement, six justices must participate in each decision. Cases are decided by a majority vote out of 9. In the case of a tie, the decision of the lower courts is sustained, although on rare occasions it may be reargued.

66 THE SUPREME COURT AND HOW IT OPERATES The members of the current Supreme Court are: Chief Justice John Roberts Associate Justice Antonin Scalia Associate Justice Arthur M. Kennedy Associate Justice Clarence Thomas Associate Justice Ruth Bader Ginsburg Associate Justice Stephen G. Breyer, Jr. Associate Justice Samuel Alito, Jr. Associate Justice Sonia Sotomayor Associate Justice Elena Kagan

67 POWERS OF THE CHIEF JUSTICE The chief justice of the SC., is appt., by the president upon confirmation by the Senate. Yet because the CJ heads the entire federal judiciary, this method of appt., gives him greater visibility than if selected by rotation of fellow justices. In the entire history of the SC, all CJ’s have been men.

68 THE POWERS OF THE CHIEF JUSTICE The CJ has special administrative responsibilities in overseeing the operation of the judiciary, such as assigning judges to committees, responding to proposed legislation that affects the judiciary, and delivering the Annual Report on the State of the Judiciary. But within the SC, the CJ is only “first among equals,’ even though periods in Court history are often named after the chief justice. (The Roberts Court). The ability of the CJ to influence the Court has varied considerably. Like the presidency, the amount of influence a CJ would have depends on the person holding the office.

69 WHICH CASES REACH THE SUPREME COURT

70 When citizens vow to take their cases to the SC even if it costs their last penny, they underestimate the difficulty of securing SC review and misunderstand the Court’s rule. The rules for appealing a case are established by the SC and Congress. Until 1988, when Congress passed the Act to Improve Administration of Justice, the SC was obliged by law to review a large number of appeals. Today, however, almost all appeals come to the Court by means of a discretionary writs of certiorari, a formal petition used to bring a case before the SC. These petitions may be denied by the Court.

71 WHICH CASES REACH THE SUPREME COURT Since the SC’s docket is now largely discretionary, it has the power to set its own agenda and to select which cases it wishes to review. As a result, the justices decide fewer than 100 of the 9,000 cases appealed to them annually. That is half the number of cases decided annually two decades ago.

72 WHICH CASES REACH THE SUPREME COURT The crucial factor in determining whether the SC reviews a case is its importance to the operation of the governmental system as a whole. The SC will review a case only if the claim involves a substantial question of federal law that has broad public significance – what kinds of affirmative action programs are permissible, whether doctors have a right to doctor-assisted suicide, other what conditions women may have an abortion, whether gays can be married ect.

73 WHICH CASES REACH THE SUPREME COURT The Court also tends to review cases in which rulings among the courts of appeals are in conflict, and by deciding a case, the SC establishes which ruling to follow. Or a case may raise a constitutional issue on which a state supreme court has presented an interpretation with which the Court disagrees,

74 WHICH CASES REACH THE SUPREME COURT The SC grants cases based on the rule of four. If four justices are sufficiently interested in a petition for a writ of certiorari, it will be granted and the case brought up for review. Denial of a writ of certiorari does not mean that the justices agree with the decision of the lower court, nor does it establish precedent. Refusal to grant a review may indicate all kinds of possibilities. The justices may wish to avoid hot issues, or the SC may be divided on an issue that is not yet prepared to take a stand..

75 WHICH CASES REACH THE SUPREME COURT The SC may want to let an issue “percolate” in the federal courts so that the SC may benefit from their rulings before it decides. The SC tends to take cases on which two or more appellate courts have rendered conflicting rulings on an issue, in order to resolve their conflict and to provide uniformity to the law. After a case is granted review, each side prepares written briefs presenting legal arguments, and historical background for the justices and their law clerks to study and on the basis of which to render their decisions.

76 THE ROLE OF THE U.S. GOVT., IN SUPREME COURT CASES

77 Attorneys on the DofJ and from other fed., agencies participate in more than half of that the SC agrees to decide. Of special importance is the solicitor general (SG) who represents the fed., govt., before the SC. The current SG is Donald Verrilli.

78 THE ROLE OF THE U.S. GOVT., IN SUPREME COURT CASES When the SG petitions the SC to review a decision of a lower court, the SC is likely to do so. That is because no appeal may be taken on behalf of the US to any appellate court without the approval of the SG.

79 THE ROLE OF THE U.S. GOVT., IN SUPREME COURT CASES The SG also files amicus curiae (“friend of the court) briefs in cases in which the govt., is not a party. This guarantees that the DofJ is represented if a suit questions the constitutionality of an act of Congress or the executive branch. The SG may also use these briefs to bring to the SC’s attention of the current administration.

80 THE ROLE OF THE U.S. GOVT., IN SUPREME COURT CASES Individuals, interest groups, and organizations may also file amicus curiae briefs if they claim to have an interest in the case and to have information of value to the SC. An amicus curiae brief may help the justices by presenting arguments or facts that the parties to the case have not raised. In recent decades, interest groups have increasingly filed amicus curiae briefs in an effort to influence the SC and to counter the positions of the SG and the government. Interest groups may also issue amicus curiae briefs before the SC grants a writ of certiorari in order to encourage the SC to review the case.

81 HOW THE SUPREME COURT DECIDES CASES

82 Once the justices receive briefs from each side, a case is set for oral arguments – usually in three to four months. As a rule, counsel for each side is allowed 30 minutes to present their case. The entire process is informally forma. Justices talk among themselves or consult briefs or books during oral arguments. Justices frequently interrupt lawyers to ask questions and request additional information. Hence the 30 minute limit is problematic, especially if the SG participates, since his 10 minutes come out of the time of the two parties before the court.

83 HOW THE SUPREME COURT DECIDES CASES Once oral arguments are completed, the justices meet in private conference. Each brings to the meeting a red leather book in which the cases and the votes of the justices are recorded. These conferences are held in secret. They are usually a collegial but vigorous give-and-take. The CJ presides, usually opening the discussion by stating the facts, summarizing the questions, and suggesting how to dispose of each case. Each justice, in order of seniority, then gives his or her views and conclusions. Recently, the justices have not bothered with formal votes because their votes are clear from their discussion of the case.

84 HOW THE SUPREME COURT DECIDES CASES The SC announces and explains its decisions in opinions of the Court. Opinions generally state the facts, present the issues, and explain the reasoning of the Court. These opinions are the SC’s method of expressing its views to the world. Their primary function is to instruct judges of state and federal courts how to decide similar cases in the future.

85 HOW THE SUPREME COURT DECIDES CASES Opinions of the SC are delivered by a justice but do not reflect his or her thinking alone. The opinions must explain the reasoning of the majority of justices. Consequently, opinions of the SC are negotiated documents that require the author to compromise and at times bargain with the other justices to attain agreement on an opinion. When voting with the majority the CJ decides who will draft the opinion. When the CJ is in the minority, the senior justice among the majority makes the assignment.

86 HOW THE SUPREME COURT DECIDES CASES A justice is free to write a dissenting opinion. These opinions quite common, as justices hope that some day these dissenting opinions will command the majority of the Court. (Justice John Harlan: In Plessy v. Ferguson) If a justice agrees with the majority on how the case should be decided but differs on the reasoning, that justice can write a concurrent opinion. Writing the opinion of the Court is difficult work. It must win the support of at least 4 – and more if possible – intelligent, strong-willed persons

87 HOW THE SUPREME COURT DECIDES CASES The two weapons justices can use against their colleagues are their votes and the threat of writing a dissenting opinion attacking the majority’s opinion. If the SC is closely divided, one justice may be in a position to demand that a certain point or argument be included in, or removed from, the opinion of the Court as the price of his or her vote.

88 HOW THE SUPREME COURT DECIDES CASES In the past, justices would read their opinions from the bench on “opinion days.” Now they give only brief summaries of the decision and opinions. Copies are made available to the press and public. The opinions are published in the official United States Supreme Court Reports. Since April 2003, opinions have been available on the SC’s website:

89 WHAT HAPPENS AFTER THE COURT DECIDES? Victory in the SC does not necessarily mean that winning parties get what they want. The SC does not implement its own decisions. It remands the case, sending it back to the lower court with instructions to act in accordance with it opinion. The lower court has considerable leeway in interpreting the SC’s mandate as it disposes of the case. Decisions whose enforcement requires only the action of a federal agency usually become effective immediately. (Nixon/Tapes) The impact of a particular SC ruling on the behavior of individuals who are not immediately parties to a lawsuit is uncertain. The most important rulings require a change in the behavior of thousands of administrative and elected officials. Some decision are simply ignored. School Prayer/School Desegregation)

90 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY

91 An independent judiciary is one of the hallmarks of a free society. As impartial dispensers of equal justice under the law, judges should not be dependent on the executive, the legislature, parties to a case, and the electorate. But judicial independence encounters problems when a democratic society decides to allow some judges to make policy. Perhaps in no other society do the people resort to litigation as a means of making public policy as much as in the USA. The involvement of courts in politics exposes the judiciary to political criticism. The SC has always been criticized for engaging in “judicial legislation.”

92 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY Some people contend that the courts have a duty to protect the interests of the public. (?) Defenders of this activist judicial role argue that if Congress, the WH, and the state legislatures are unwilling or unable to resolve pressing problems when people are denied justice and their constitutional rights, then the courts must address those problems. Critics of judicial activism argue that the federal courts in their zeal to protect the people have become unhinged from their political moorings in the political and constitutional system.

93 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY Even if the courts make the “right” decisions, these critics argue, it is not right for them to take over the legislative function of elected representatives. Courts should exercise self-restraint.

94 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY Others claim that the debate between judicial activism and judicial restraint oversimplifies the choices. Judges, they argue, should take a leadership role in some areas but a restrained role in others.

95 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY These critics stand with CJ Harlan E. Stone who argued that the courts have a special duty to intervene: 1. whenever legislation restricts the political process by which decisions are made. 2. whenever legislation restricts the rights of minorities. 3. when guarantees of the Bill of Rights are violated.

96 JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY In all other areas, the political process should be allowed to work, and judges should not set aside legislation or interfere with administrative agencies merely because they would prefer some other policy or even some other interpretation of the Constitution.


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