The Judicial Branch “The Least Dangerous Branch” -- Alexander Hamilton, Federalist 78

The Court Article III of the Constitution establishes: –a Supreme Court in which the judicial power of the United States is vested –life tenure for judges (WHY?) –judges receive compensation that cannot be diminished during their service –the original jurisdiction of the Supreme Court: disputes between States, States and foreign nations, cases involving foreign diplomats NO ENUMERATED POWERS LISTED!

The Court under John Marshall (the Marshall Court) Marbury v. Madison (1803) –Marshall defined the role of the Court  Judicial Review Safeguard the Constitution Judicial Review –Power to decide if a law or other legal issue contravenes the Constitution, and overturn it. –Not mentioned in the Constitution. –Marbury's long-term effect has been to allow the Court to have the final say in what the Constitution means.

Court Structure Article III, Section 1 –Power given to CONGRESS to establish lower courts Judiciary Act of 1789  Three-tiered system (State and Federal): Trial Courts Appellate Courts Supreme Court established the framework for the American legal system

Structure of the Judicial Branch Three tiered system The Supreme Court 12 Appellate Courts 94 US District Courts State Appeals Court Municipal Courts District Courts Kansas S. Court

Federal Judge Selection Process The selection of judges is usually 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

Who are Federal Judges? Typically federal judges have: –held previous political office such as prosecutor or state court judge –prior judicial experience –traditionally been mostly white males –been lawyers

Nomination Criteria 4NO constitutional requirements/quali fications (behavior) 4Competence 4Ideology/Policy Preferences 4Pursuit of Political Support 4Religion 4Race and gender Samuel A. Alito Ruth Bader Ginsburg Stephen G. Breyer Sonia Sotomayor Anthony M. Kennedy John Paul Stevens Chief Justice John G. Roberts Antonin G. Scalia Clarence Thomas Elena Kagan

John G. RobertsJohn G. Roberts - Chief Justice Appointed by: President George W. Bush Appointed in: 2005 Age When Appointed: 50 Samuel A. Alito, Jr. Appointed by: President George W. Bush Appointed in: 2006 Age When Appointed: 55 Antonin Scalia Appointed by: President Reagan Appointed in: 1986 Age When Appointed: 50 Clarence Thomas Appointed by: President George H. W. Bush Appointed in: 1991 Age When Appointed: 43Chief Justice Samuel A. Alito, Jr. Antonin Scalia Clarence Thomas Anthony Kennedy Anthony Kennedy Appointed by: President Reagan Appointed in: 1988 Age When Appointed: 52 Elena Kagan Elena Kagan Appointed by: President Obama Appointed in: 2010 Age When Appointed: 50 Ruth Bader Ginsburg Appointed by: President Clinton Appointed in: 1993 Age When Appointed: 60 Stephen Breyer Appointed by: President Clinton Appointed in: 1994 Age When Appointed: 56 Sonia Sotomayor Appointed by: President Obama Appointed in: 2009 Age When Appointed: 55 Ruth Bader Ginsburg Stephen Breyer Sonia Sotomayor

How Cases Reach the Supreme Court Constitutional Issue Between states Citizens of different states Writ of Certiorari issued to lower courts “Discuss List” created by justices “Rule of Four” –4 justices must agree to hear the case

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

Decisions Majority Opinion Dissenting Opinion Concurring Opinion Precedent/Stare decisis

Extra-Legal Factors Behavioral Characteristics –The personal experiences of the justices often affect how they vote. Early poverty, job experience, friends and relatives all affect how decisions are made. Ideology –Ideological beliefs influence justices' voting patterns. Public Opinion –Justices do 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

Judicial Restraint/ Strict Constructionist Those who advocate judicial restraint believe the courts should uphold all acts of Congress and state legislatures unless they clearly violate a specific section of the Constitution. In practicing judicial restraint, the courts should defer to the constitutional interpretations of Congress, the President, and others whenever possible. The courts should hesitate to use judicial review to promote new ideas or policy preferences. In short, the courts should interpret the law and not intervene in policy-making.

Judicial Activism/ Loose Constructionist According to the idea of judicial activism, judges should use their powers to correct injustices, especially when the other branches of government do not act to do so. In short, the courts should play an active role in shaping social policy on such issues as civil rights, protection of individual rights, political unfairness, and public morality. Chief Justice Earl Warren (who served from 1954 to 1969) practiced judicial activism when he boldly used the Constitution to make sweeping social changes promoting such policies as school desegregation and to insure that all Americans had the opportunity to vote and to participate in U.S. society