1. The Judiciary

2. Objectives
Define judicial independence and discuss its importance to the rule of law.
Describe the structure of the U.S. court system and identify the advantages and disadvantages of this type of system.
Examine how a case reaches and gets decided by the Supreme Court.
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3. Objectives
Understand the impact of judicial philosophy on how Supreme Court justices decide cases and craft legal opinions.
Identify the range of limits placed on the Supreme Court to prevent it from overreaching or abusing its power.
Compare and contrast the criteria used to select judges at the state and federal levels.
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4. Judicial Independence
Core Questions:
Why are we the way we are?
Why does it matter to you?
Why is judicial independence so important, and what elements are essential to creating and maintaining that independence?
Judicial independence is necessary to the rule of law.
U.S. Constitution’s Article III established the Supreme Court and gave Congress the authority to establish lower federal courts and had provisions that established independence of these courts.
Judges have life tenure
Compensation cannot be diminished during their time in office; no pay cuts as punishment
Not all countries have this judicial independence.
Example: China and Communist Party dominance
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5. Judicial Review
The power of the courts, when confronted with a legitimate case, to review and strike down acts of government that violate the Constitution.
Judicial review not enumerated in the U.S. Constitution.
Hamilton, Federalist 78: implied
Not established until 1803 Court case, Marbury v. Madison.
Precedent for it existed long before the Constitution was written.
1610 Dr. Bonham’s Case, Judge Edward Coke
Debate as to its use during Articles of Confederation
Framers’ intent?
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6. Marbury v. Madison
Context: arose out of the great tensions that surrounded the elections of 1800.
Federalists had lost poorly at both the national and state level.
Lame-duck Federalists passed the Judiciary Act of 1801, creating 16 new federal judgeships with lifetime tenure as well as additional legislation that created 42 justices of the peace with fixed terms in office in the District of Columbia.
William Marbury was one of the justices of the peace.
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7. Marbury v. Madison
Responsibility for delivering the commissions to the new justices belonged to the Secretary of State, John Marshall, but Marshall did not have adequate time to do so. So he left it to his successor, James Madison, to deliver.
When Jefferson took office, he forbade Madison from delivering the commissions.
Marbury brought his suit to the Supreme Court under its original jurisdiction. He asked the Court to issue a writ of mandamus (order to perform an official duty) commanding delivery of his commission.
Court: 6 Federalists; John Marshall was now Chief Justice
BUT partisan power struggle: Democratic-Republican Congress repealed the Judiciary Act of 1801, abolishing the federal judgeships.
Cancelled the 1802 Court term.
Madison sent no lawyer when Marbury v. Madison was being argued.
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8. Marbury v. Madison
Marshall feared that any ruling would undermine the power and legitimacy of the Supreme Court:
What if they issued the writ of mandamus and Sec. Madison ignored it?
The weakness of the Court would be revealed.
But what if the Court did not issue the writ of mandamus, everyone would assume that it had simply caved to pressure.
This would also weaken the Court.
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9. The Decision: Marbury v. Madison
Marbury had a right to his commission.
Law offered the remedy through the writ of mandamus.
However, the legislative provision in the Judiciary Act of 1789 that gave the Court this authority was unconstitutional because it expanded the Court’s original jurisdiction in violation of Article III, Sect. 2, para. 2.
Marshall stated that the Court’s original jurisdiction could only be expanded through Constitutional amendment.
The Court, therefore, lacked the jurisdiction to issue the writ.
The power of judicial review by the Supreme Court has been debated. Generally, the debate today focuses on when and how often the Court should use this power, not whether they have it.
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10. Judicial Review around the World
U.S. first country to embrace the use of judicial review.
Followed by a few countries in the 19th century: Argentina, Canada
After WWII, Italy, Japan, and West Germany adopted judicial review as part of their new constitutions
Judicial review means different things in different countries.
U.S.: constitutional review; other countries it may mean allowing courts to subject administrative actions to judicial review.
In some countries, Italy, Germany, Spain, France- judicial review also means the ability to compel legislative action.
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11. Overview of the U.S. Court System
Dual Court system: federal courts and state courts. In reality, 51 different court systems in the United States.
Cases originate in trial courts (originates here; establishes the facts of the case; the record).
Different trial courts have different jurisdictions
Territorial jurisdiction
Subject matter jurisdiction
Appellate court: hears appeals from lower courts. Involve questions of law rather than questions of fact. Makes sure there are no errors in judgement by lower courts.
Civil case: one party sues another party
Plaintiff brings the the civil suit against another; one sued is the defendent
Criminal case: brought by government against an individual or business
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12. Overview of the U.S. Court System
Adversarial system: defendants are presumed innocent
United States
Inquisitorial system: defendants are presumed guilty until proven innocent; guilt is determined by the judge (rather than a jury) who plays an active role in gathering evidence and questioning witnesses.
Latin America and European countries
Types of criminal actions
Misdemeanors: minor criminal offenses such as trespassing, disorderly conduct, minor traffic violations
Felonies: serious criminal offenses such as murder, rape and armed robbery.
States responsible for creating most criminal laws; most criminal trials take place in state court.
Congress passes criminal laws as well: counterfeiting, tax evasion…
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13. The Federal Court System
Under Articles of Confederation:
only state courts existed at this time
no federal courts
result was judicial mayhem caused by the lack of a central and neutral court.
Constitutional Convention:
agreement on need for federal court at the highest level, but still debated over need for lower courts.
states’ rights advocates not supportive of this
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14. The Federal Court System
Judiciary Act of 1789
Congress created system of lower federal courts
Three levels of courts: district courts, courts of appeals, and the Supreme Court
All have general jurisdiction, or the broad power to hear a wide range of cases. Also called Article III courts. Justices have life tenure.
Article I Courts: specialized courts created by Congress
U.S. Tax Court is an example.
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15. The Federal Court System
Insert figure 15.1
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16. U.S. District Courts U.S. District Courts are trial courts.
Most federal cases originate here; few originate at the Supreme Court level under its original jurisdiction.
Hear more cases than any other type of federal court.
94 District Courts, with 678 full-time judgeships.
They hear criminal cases and civil cases IF certain conditions are met. These conditions are:
brought against the federal government.
involve a claim based on the U.S. Constitution, federal law, or a federal treaty.
involve a citizen of one state suing a citizen of another state and more than $75,000.
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17. U.S. District Courts One judge presides.
Jury, testimony by witnesses, cross examinations, and introduction of evidence.
Each state has at least one district; states with heavier caseloads have more than one.
No district extends beyond the boundary of a single state.
District court judges are nominated by the president and confirmed by the Senate. The judges are residents of the state the district falls within.
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18. U.S. Courts of Appeals Originally called circuit courts.
Courts of appears fall within a geographic region that is still known as a circuit, with each circuit made up of several districts.
12 regional circuits; one for the District of Columbia, and 11 numbered districts covering the remainder of the country.
U.S. Court of Appeals for the Federal Circuit: nationwide jurisdiction over a variety of specialized subject matters including international trade, government contracts, trademarks and veterans’ benefits.
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19. U.S. Courts of Appeals
Each of the numbered districts has jurisdiction over several states, although the number of states varies from circuit to circuit.
Number of judges varies as well. Total of 167 full-time judgeships.
Jurisdiction: hears appeals from district courts that fall within their circuit.
As appellate courts they answer questions of LAW rather than questions of FACT.
Did the lower court make an error in its application of the law?
No new witnesses, etc.; only legal arguments (written briefs and oral arguments).
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20. U.S. Courts of Appeals
A majority of judges is needed to overturn a lower court ruling, and the court of appeals issues a written opinion explaining its ruling.
One judge is responsible for writing that opinion.
If all the judges agree, only one opinion is issued by the court.
If the court is divided, one judge is responsible for writing the majority opinion.
A judge who disagrees with the outcome described in the majority opinion, explains why in a separate opinion – the dissenting opinion.
Concurring opinions are written by a judge who agrees with the outcome, but not with its legal reasoning.
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21. U.S. Courts of Appeals Precedent
A previous court decision that is used to determine the outcome of subsequent cases involving a similar legal question
Stare decisis – let the law stand
Doctrine of precedent evolves: Change is slow. Precedent provides continuity and predictability, but it can change.
May be ignored.
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23. U.S. Supreme Court Highest appellate court in the federal system.
Size determined by Congress.
Originally set by the Judiciary Act of 1789 at six members
Court fluctuated in size until after the Civil War, reaching a high of ten members in 1863.
Set to 9 in 1869 and stayed there.
Vast majority of cases heard by the Supreme Court are appeals.
Litigants can appeal a decision from the U.S. courts of appeals to the Supreme Court.
Can also move from a state’s highest appellate court so long as the case involves a federal question.
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24. “Gatekeeping rules” limit the type of cases the Court can hear.
U.S. Supreme Court
“Gatekeeping rules” limit the type of cases the Court can hear.
Standing
Must be an injured party with standing to bring the case
Real, live “case or controversy”
Case cannot be moot
real conflict must still exist
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25. Figure 15.3 civil
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26. Figure 15.3 criminal
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27. State Court Systems
Most cases are heard in the state court system, and most of them end there as well.
State court systems vary.
Some complex: New Your
Others simple: Minnesota.
Generalizations we can make:
State courts divided between trial courts and appellate courts.
Often trial courts divided into minor and major trial courts.
Courts of limited jurisdiction can only hear certain specialized cases. Divorce court, for example.
Courts of general jurisdiction have broad authority to hear cases.
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28. State Court Systems
Most states have an intermediate level of appellate courts.
All have an appellate court of last resort, which is usually the state’s “supreme court”
Although states are bound by the Supremacy Clause to follow the U.S. Constitution, federal law and federal treaties, it is possible for state constitutions and state courts to extend right further than the federal government.
Massachusetts Supreme Court ruled in 2003 that it was unconstitutional under the Massachusetts constitution to ban same-sex marriage.
First state to recognize same-sex marriage
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29. The Supreme Court in Action
Supreme Court has two jurisdictions:
Original: spelled out in Constitution; cannot be changed by Congress; very small number heard
Appellate: regulated by Congress; larger part of Supreme Court caseload
Since 1925 Supreme Court has had the power to decide which appeals it will accept.
7,000 cases on average appealed, only about 100 reviewed in a year
Often the Courts of Appeal have the final word in a federal case.
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31. Getting to the Court: Petitioning for a Writ of Certiorari
An instruction to a lower court to send up the record in a particular case.
If one petitions for such a writ, it means the litigant is asking the Court to review its case.
Most petitions come from the U.S. Courts of Appeals. Can come from special three-judge U.S. District Court.
It takes four (Rule of Four) of the nine justices to grant cert.
Role of law clerks
Role of solicitor general: important player
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32. How the Court Decides Cases
Once the Supreme Court grants cert, the case is added to the Court’s docket.
Each side files separate written briefs containing their legal arguments.
Amicus curiae briefs: “Friend of the court” briefs submitted by third parties who are not named in a case but who hope to influence the outcome of a particular case.
Interest groups are able to influence the Court only in this way.
After reviewing the written briefs, the judges hear oral arguments.
Justices may ask questions during the oral arguments.
After oral arguments the justices meet privately in their Friday conference, where they vote on how the case should be decided.
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33. How the Court Decides Cases
If chief justice is in the majority, he chooses who will write the opinion. If he is not, the longest-serving justice in the majority chooses.
Any of the justices may write a separate dissenting or concurring opinion.
Law clerks play an important role in drafting opinions.
No opinion is considered final or binding until it is officially announced.
Posted online and published by government in volumes called U.S. Reports.
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34. The Role of Judicial Philosophy in Decision Making
Legal model
A model of judicial decisions making that assumes judges will decide cases according to the law (as opposed to the attitudinal model).
Attitudinal model
A model of judicial decision making that assumes judges will decide cases according to their ideological preferences (or attitudes)
Strategic model
A model of judicial decision making that assumes judges are rational actors who will strategically try to get as close to their preferences as possible by building winning coalitions.
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36. Jurisprudence of Original Intent
Suggestion for limiting judicial discretion:
Minimize the ambiguity of constitutional language by determining the original intent of those who framed it.
Approach is problematic. Why?
May be impossible to discern.
Evidence lacking.
Constitution was result of compromise. Language at times was purposely ambiguous.
Whose intent counts?
Even if intent is clear, is it relevant for us today?
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37. Judicial Restraint versus Judicial Activism
Idea that the Supreme Court should defer to the actions of other branches of government as long as they have a rational basis.
Idea that the Supreme Court should strictly scrutinize actions of other branches of government that restrict fundamental rights, such as free speech.
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Note: Clip art from Microsoft Clip Art Office.

38. Limits on the Supreme Court
Constitutional Checks
Constitutional amendments to overturn Court rulings
Use of Congress’s Exceptions Clause power to take away a Court’s jurisdiction to hear certain types of appeals
Impeachment of judges
Congress’s power to change the size of the Court (and thus its composition)
Noncompliance
Depends on other institutions to enforce its rulings
Implementation of those rulings is left to others.
Main source of power is its legitimacy.
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40. How Judges Are Selected
Supreme Court Justices
President has power to nominate; but appointment comes with the “Advice and Consent of the Senate.”
No specific requirements
Unofficial standards exist
Vetting process – American Bar Association (1946)
Presidents take into account:
high professional standards
representational considerations
doctrinal considerations
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41. How Judges Are Selected
Confirmation
Senate requires a simple majority vote unless the nomination faces a filibuster.
Senate Judiciary holds hearings before the Senate debates and votes.
Hearings have become contentious.
Reagan nominee: Robert Bork
Role of divided government
Lower Federal Court Judges
Senatorial Courtesy vs. Presidential Prerogative
Diversifying the Bench
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42. How Judges Are Selected
Lower Federal Court Judges
Senatorial Courtesy: an informal rule that senators will refuse to confirm nominees to the lower federal courts who do not have the support of the senators from the state where the vacancy occurs
Presidential Prerogative:
Carter: reform of the system – commission system based on merit. Reagan abolished the system but centralized control of the process in the White House and used this process to screen for ideology.
Diversifying the Bench
Recent idea that federal courts should reflect the diversity of society at large.
Less important idea for Republican presidents; more so for Democratic presidents.
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45. Judicial Selection in the States
Manner in which state court judges are selected varies not only from state to state, but also within states according to the type of court. Some similarities.
Basically five methods for choosing state court judges.
Appointments by the governor
Appointments by the legislature
Partisan election
Nonpartisan election
The Merit Plan (Missouri Plan) – fixed term
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