1. Unit 4 Judicial Branch

2. IV. Institutions of National Government: The Congress, the Presidency, the Bureaucracy, and the Federal Courts 35–45% A. The major formal and informal institutional arrangements of power B. Relationships among these four institutions and varying balances of power C. Linkages between institutions and the following: 1. Public opinion and voters 2.Interest groups 3. Political parties 4. The media 5. State and local governments

3. Discuss this quote: “…a free court is a court where a judge is at liberty to express his views and exercise his own discretion…without any coercion or pressure from anyone. That is liberty, and that is what America stands for.” Federal Judge Waties Waring,

4. Federal Court System I.Characteristics A.Adversarial 1.Plaintiff brings a charge 2.Defendant is the one being charges B. Passive 1. Federal judges are restrained by the Constitution to deciding ACTUAL disputes or cases 2. depends on others to take the initiative. C. Jurisdiction 1. court’s authority to hear a case 2. types of jurisdiction

5. a. Original jurisdiction – courts in which a case is 1 st heard b. Appellate jurisdiction – courts that hear cases brought to them on appeal from lower courts c. exclusive jurisdiction – cases that can be heard only in certain courts d. concurrent jurisdiction – cases that can be heard in either federal or state court

6. D. A complex dual court system 1. 2 separate court systems 2. Each state has its own system of courts.state over 97% of all criminal cases are heard in state and local courts 3. Federal judiciary system spans the entire country.

7. Two Levels of Law (Dual Court System) State CourtsFederal Courts Deal with state laws Three levels Trial courts Appellate courts (aka courts of appeal) State supreme court (aka court of final appeal) Cases may be appealed to the USSC if a federal or constitutional issue is involved Original jurisdiction over federal issues o Federal laws o Constitutional issues o Resident of one state v resident of another state o Treaties o Maritime issues o Foreign govt is involved o US govt is involved Three levels a. Trial court (aka District Court) b. Appellate court (aka Court of Appeals) c. Supreme Court (aka Court of Final Appeal)

8. The Federal Court System A. The Constitution o 1. Supreme Court is the only court mentioned in the constitution. o 2. Congress has the power to create all other courts B. The Judiciary Act of 1789 o 1. established 3 tiered structure of federal courts o Set the size of the Supreme Court at 6 justices; it was later expanded to 9 in 1869

9. C. District Courts 1. Currently 94 district courts staffed by about 700 judges. o Each state has at least 1 2. District courts handle 300,000+ cases a year or about 80% of the federal caseload 3. Most cases end in a plea bargain o Only about 2% go to trial

10. D. Courts of Appeals 1. appellate courts authorized to review district court decisions o Empowered to rule on decisions of federal regulatory agencies such as the FCC Do not hold trials or hear testimony

12. The Supreme Court America’s “court of last resort.” Reviews cases from the US courts of appeals and state supreme courts Final arbiter of the Constitution o Decisions establish precedents that are binding on the entire nation Marbury vs. Madison o Established judicial review o Judicial review: the power of the Supreme Court to declare federal legislation invalid if it violates the Constitution

13. Structure of the Courts

15. http://www.supremecourtpress.com/chance_of_success.html

16. Back: Sonia Sotomayor, Stephen Breyer, Samuel Alito, Elena Kagan Front: Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Bader Ginsburg

17. III. The Selection of Judges A.The Lower Courts 1.Appointed by the president and confirmed by a majority vote of the Senate 2.Senatorial courtesy: unwritten tradition – the Senate will not confirm nominations for lower court positions that are opposed by a senator of the president’s own party from the state in which the nominee is to serve (does not apply to SCOTUS)

18. Robert Bork and Anita Hill Nominated to the Supreme Court in 1987 Views of Constitution seemed Controversial Rejected by Senate

19. Robert Bork and Anita Hill Nominated to the Supreme Court in 1987 As solicitor general, fired Watergate special prosecutor Views of Constitution seemed Controversial Rejected by Senate Clarence Thomas nominated to SC in 1991 Hill was an associate of Thomas; accused him of sexual harassment in confirmation hearings

20. B. The Supreme Court 1.Nomination criteria a.Competence – credentials including prior judicial or governmental experience b.Ideology & policy preference – expected to share the president’s policy preferences i.Example: FDR appointed justices who supported New Deal programs ii.Reagan appointed justices sympathetic to conservative goals

21. B. The Supreme Court (cont’d) c.Race, ethnicity and gender 2. confirmation process a.names of possible nominees sent to FBI for background check & to ABA for professional rating b.Interest groups increasingly important i.Public protest ii.Appearances on TV & radio talk shows iii.Emails to senators c.Senate Judiciary committee holds public hearing on each nominee i.Recommendation to the full Senate

22. IV. How the Supreme Court works 1.Selecting cases 2.Original jurisdiction involving: a.2 or more states b.US and a state government c.US and foreign ambassadors and diplomats 3.Writs of certiorari a.Order by the court directing a lower court to send up the record in a case for review b.Enables the SCOTUS to control its own caseload 4.Rule of Four a.Clerks screen approximately 9,000 petitions b.Weekly conference where justices discuss petitions c.4/9 justices must agree to hear a case

23. B. Filing Briefs 1.Each party files a detailed written statement arguing one side of a case cite relevant facts, legal principles, precedents 2.amicus curiae (“friend of the court”) briefs a.controversial cases attract a large number b.attempt to lobby the court C. Listening to Oral Arguments 1.Open to the public 2.30 minutes to present case

24. D. Discussion and voting 1.Closed meeting held on Fridays 2.Chief Justice presides Chief Justice Roberts is known for encouraging discussion E. Writing opinions 1.Formal opinions present issues, establish precedents, set guidelines for lower courts 2.Types of opinions a.Majority b.concurring c.minority or dissenting

25. V. Factors influencing SCOTUS decisions A.Precedent 1.Stare decisis – “let the decision stand” 2.Examples – Marbury v. Madison established judicial review applied to Congress and the President 3.Exceptions – court can overturn previous decisions o Plessy v. Ferguson overturned in Brown v. Board of Ed of Topeka B.Judicial Philosophy 1.Judicial Restraint 2.Judicial Activism

26. Activism vs. Restraint Judicial restraint: judges' own philosophies or policy preferences should not be injected into the law o whenever reasonably possible construe the law so as to avoid second guessing the policy decisions made by other governmental institutions o based on the concept that judges have no popular mandate to act as policy makers and should defer to the decisions of the elected "political" branches o so long as these policymakers stay within the limits of their powers as defined by the US Constitution and the constitutions of the several states. Judicial activism: seeks to determine what is "just," not necessarily what is intended by law o the U.S. Constitution is a living, dynamic document which must necessarily be interpreted to meet the needs of modern times.

27. C. Public Opinion 1.Constitution insulated the SCOTUS from direct political pressures a.appointed for life terms subject to good behavior b.salaries cannot be reduced c.certiorari process lets it set own agenda d.public has limited access to proceedings 2.BUT aware and sensitive to public opinion a.Appointment and confirmation process b.Congress and state legislatures can amend the Constitution c.Congress can change SCOTUS’ appellate jurisdiction d.Congress can change the number of justices e.Justices can be impeached

28. AP exam lookout Judicial restraint and judicial activism are philosophies that appear on MOST AP US GOPO exams Be able to explain how the SCOTUS is insulated from public opinion AND The factors that keep the court from straying too far from public opinion