1. The Judiciary
Chapter 14

2. Learning Objectives
Analyze the implications of the adversarial process
Explain the structure of the federal court system
Compare and contrast arguments in favor of and against judicial activism
Describe the process of reaching a decision to the U.S. Supreme Court
Assess the influences on the U.S. Supreme Court
Compare and contrast the limits of judicial action
Assess the roles of the judiciary in a constitutional democracy

3. Balance of the Court
“We are under a Constitution, but the Constitution is what the judges say it is……”
-Justice Charles
Evans Hughes
Liberal
Conservative

4. Understanding the Federal Judiciary
The judiciary is generally guarded from public opinion and the rest of government
No Terms (good behavior)
No salary reductions once confirmed
Guaranteed independence

5. Characteristics of the Federal Judiciary
Judicial Review (Marbury v. Madison)
Adversary system: based on the theory that arguing over law and evidence guarantees fairness

6. Criminal vs. Civil Law Criminal trial a person’s liberty is at stake
Government provided attorneys
Right to a jury
Civil case penalties are predominantly monetary
No guaranteed attorney
No jury trials in state civil trials

7. Cases, Controversies, and Justiciability
Can only decide cases dealing with real controversy.
Must be brought to them
Must have already impacted a person (i.e. Obamacare)
Court should not hear political questions, these are more properly dealt with be the legislature (Bush v. Gore)

8. Prosecuting Cases
U.S. Department of Justice is responsible for prosecuting federal criminal and civil cases.
Headed by attorney general (Eric Holder)
Assisted by solicitor general (Neal Katyal)
Reps in front of Supreme Court cases
94 U.S. attorneys
1,200 assistant attorneys

9. Three Types of Federal Courts: Judiciary Act of 1789
Supreme Court
Circuit Courts of Appeal
District Courts

10. Three Types of Federal Courts: Judiciary Act of 1789
Supreme Court original jurisdiction only in cases involving ambassadors, other public ministers, and other diplomats, and cases in which a state or states are a party
Rest of the time only appellate jurisdiction
Currently 9 justices, originally 6

11.                                                     
Current Justices
The Roberts Court, 2010 Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

12. Three Types of Federal Courts
District Courts
678 judges across 94 district courts
Hear the majority of cases

13. Three Types of Federal Courts
Circuit Courts of Appeals
Appealing a case means taking it a higher court for review
Judges must use precedent
13 of these courts, Indiana is in district 7
Usually operate in panels of three judges

14. Judicial Federalism: State and Federal Courts
Writ of habeas corpus: a court order requiring explanation to a judge why a prisoner is being held in custody.
State courts use their own constitution and laws, only when in conflict with the Constitution do federal courts interfere

15. Appointing Federal Judges
Appointed by President, approved by Senate
Supreme Court = no requirements
Assumed they would be skilled in law
Washington established tradition
Same party
Same beliefs
Same rulings
Senator advice for district courts, ensuring every state is represented

16. Appointing Federal Judges
Presidents consult with Congress, especially senate
American Bar Association (ABA) rates candidates for appointment
Interest groups also chime in
Senate Judiciary Committee conducts interviews and investigations
May ask about personal history, opinions, and philosophy
31 of 152 nominees have been refused by the Senate

17. The Role of Party, Race, and Gender
10% of nominations are from opposing party
Race, gender, and ideology more important now
More diversity in nominations with recent presidents
Clinton 50%
Bush 37%

18. Role of Ideology Regan’s two terms he appointed 368 lifetime judges
“Right kind” of democrats and republicans must be found

19. Role of Judicial Philosophy
Are judicially active or do they demonstrate judicial restraint?
How do they interpret the Constitution?
originalists
Reforming the selection process after the 1987 and 1991 televised confirmation hearings of Robert Bork and Clarence Thomas

20. Quick Review
President will get advice from other executive branch members, associates, and Senators.
A nomination is made based largely on ideology, race, and gender.
The nominee will then face a hearing from the Senate Judiciary Committee.
The Committee may then approve or reject the nominee following the hearings.
They may ask personal questions in the hearings, but nominees may also refuse to answer questions.

21. Death Strikes the Court

22. YOU BE THE JUDGE Come pick a role out of the bag
Listen to directions about next step
President and advisors analyze the nominees to make your choice, remember having a nominee rejected is a public embarrassment
Nominees, read your profile, and get into character, be ready to face a hearing and think about how and what questions you will be willing to answer knowing your confirmation is on the line
Senate Committee Members you are each responsible for coming up with three questions to ask the nominee
The president along with his advisors will officially make a nomination to fill the vacated seat.
The nominee will then face a hearing from the Senate Judiciary Committee
The Committee will vote to either confirm or reject the nominee by a majority vote.

23. The Nominees

24. How the Supreme Court Decides
Term 1st Monday in October through the end of June.
Hear arguments for two weeks, adjourn to consider cases and write opinions for other two weeks
6 needed to rule, majority wins, lower court stands in case of tie
For the years 2009 and 2010, associate justices were paid $213,900 and the chief justice $223,500

25. How the Supreme Court Decides
8 Step Process
Reviewing appeals
Granting the appeal
Rule of 4
Briefing the Case
Holding the Oral Argument
30 minutes only
Meeting in Conference
Friday mornings
Explaining the Decision
Opinion, Dissenting, Concurring
Writing the Opinion
Difficult tedious task, lots of responsibility and negotiating
Releasing the opinion
Publicly released

26. Influences on the Supreme Court
Supreme Court precedent is the primary influence.
Interest groups, chief justice, and law clerks, solicitor general, and citizens

27. After the Court Decides
People do not always immediately follow the courts rulings.

28. Limits on Judicial Action
“stare decisis” to stand by that which is decided, or let the decision stand
Congressional and Presidential Action
Can’t be removed individually, but they can act to impact all of the judiciary
Similar to schools

29. Judicial Power in a Constitutional Democracy
Judicial must remain independent
Elections matter
Appointments
Judges are aware of public opinion
They rely on the approval of our free people