Unit 4D National Judiciary Institutions Unit 4D National Judiciary

American Legal System Criminal Law Cases Civil Law Cases An individual violating a specific law based on regulating morality Varying degrees of crimes based on intent Misdemeanor Less serious crime; less than 1 year incarceration; fines Felony More serious crime; more than 1 year incarceration Beyond a reasonable doubt Civil Law Cases Involving a perceived violation of civil rights or legal relationships i.e. contracts Lawsuits Class action involves a one or a few representing many affected Preponderance of evidence Basic Structure of a Court Litigants Plaintiff – brings up charges, sues Burden of proof Defendant/respondent – answering charges Lawyers Prosecution – government lawyers accusing of criminal charges Public defenders – government-paid lawyers for criminally-charged individuals Jury Trial by jury; one may request a bench trial or trial by jury Judge Presides over the case; rules on objections; final ruling; passes sentence Public Audience members, interest groups, relations to litigants

Constitutional Structure Article III establishes the judicial branch United States Supreme Court Congress establishes lower federal courts Judiciary Act of 1789 Also set number of SC justices, position of Chief justice Constitutional Courts District Courts (original jurisdiction) – 1789 Each state has at least one district court 94 district courts Courts of Appeals (appellate jurisdiction) – 1891 13 Courts of Appeals separated by geographic circuits Legislative Courts Agency reviews (taxes, trade, bankruptcy) Not subject to Article III parameters

Court of Appeals

Jurisdiction Original Jurisdiction Appellate Jurisdiction Court is the first to hear the case Appellate Jurisdiction Reviewed by a higher/alternate court Supreme Court’s Jurisdiction Original jurisdiction involving cases with ambassadors, foreign ministers, consuls, state is a party Appellate jurisdiction in all other cases From federal district or appeals courts, or state supreme courts involving federal law or Constitution Concurrent Jurisdiction Cases may be tried in state or federal courts

Dual Court System Federal Court System State Court Systems Federal-Question cases Arising under the Constitution, the law of the U.S., and treaties Diversity cases Involving different states or citizens of different states Dual Sovereignty Either state or federal court can review case if both state and federal laws broken State Court Systems Circuit court system with original and appellate jurisdiction courts State supreme court decisions final law in respective state May be appealed to U.S. Court of Appeals and Supreme Court if a constitutional question

Federal Judges Serve “during good behavior” – Article III Appointment Life terms Appointment Not elected hence not directly subject to political pressures President appoints with advice and consent from the Senate Senatorial courtesy Blue slips

Nominating a Supreme Court Justice Presidential appointments politicized Party Affiliation Political Ideology Litmus Test Asking questions about stance on major issues, i.e. abortion Race, Gender, Religion, Region Judicial and Legal Experience and Record Political Acceptability Legal organizations American Bar Association Interest groups U.S. Senate Simple majority required Other justices

Checking and Balancing Judges Adversarial System Issue between two parties settled by an impartial judge or jury Justiciable Dispute Based on an actual situation and not a hypothetical test Political Questions Disputes between Congress and the President or a matter left to a branch of government Appointments President appoints with Senate approval Impeachment House of Representatives may impeach a federal judge and the Senate tries Structure of the Courts Congress may alter the number of district or appellate courts, number of SC justices Amendments Overrule a federal court decision by amending the Constitution or bounding the courts to the supreme law of the land

The U.S. Supreme Court Currently made of 9 justices, including a Chief Justice and 8 associate justices Congress determines the number of justices $217,400 salary for Chief Justice $208,100 salary for Associate Justices

The Supreme Court Accepting Cases Supreme Court Sessions Term begins on first Monday in October Usually ends in June or July Original Jurisdiction and Appellate Jurisdiction Cases involving ambassadors, foreign ministers, consuls, or state a party Most cases based on appellate jurisdiction Very few cases are reviewed by the SC Only a 100 out of 10,000 cases a year Lower court decision stands if SC refuses to hear case Justices may recuse themselves if conflict of interest Writ of Certiorari Petition the Supreme Court to review a lower court decision SC directs lower court to provide all records regarding a case when petitioned for review Rule of Four Four of the nine justices must agree to hear/review a case

The Supreme Court Reviewing and Hearing a Case Case Briefs Written arguments provided to SC prior to oral arguments Cites legal arguments, legal precedents, previous court decisions Amicus curiae brief (friend of the court) Used by interest groups with a vested interest in case providing an additional legal perspective Oral Arguments 30 minutes for each party counsel Justices may ask questions during oral arguments Solicitor General Argues on behalf of the United States

The Supreme Court Deciding a Case Conferences Justices discuss the case on Wednesday afternoons and Fridays Writing Opinions Most opinions written by justice’s law clerks Majority opinion The official opinion of the court, the supreme ruling Outlined by legal reasons Dissenting opinion Justices who disagree with the majority opinion write a dissent outlined by legal reasons Concurring opinion If a justice concurs with the majority but disagrees with the legal reasons

The Supreme Court Jurisprudence/Judicial Philosophy Originalism Based on TEXT, HISTORY, TRADITION, PRECEDENT Limit the initiative on social and political questions Passive on policymaking Strict interpretation of the Constitution “The Constitution is not an empty bottle…it is like a statue, and the meaning doesn’t change.” – Antonin Scalia Living Constitution Based on TEXT, HISTORY, TRADITION, PRECEDENT, PURPOSE & VALUES, CONSEQUENCES Active role in society and politics Judicial intervention Loose interpretation of the Constitution “Provisions of the Constitution of the United States are not mathematical formulas having their essence in their form, but are organic living institutions transplanted from English soil. Their significance is not to be gathered simply from the words and a dictionary, but by considering their origin and the line of their growth” – Oliver Wendell Holmes Judicial Restraint Justices hold to legal precedent and defer to the elected legislatures Stare decisis Apply the law, not determine the law Judicial Activism Development of new legal principles to preserve fundamental principles Conflicts with legal precedent and public policy Justices consider personal opinions on public policy in legal decisions

“Should Originalism Guide Court Decisions?” I am [among the judges[ who are known as originalists. Our manner of interpreting the Constitution is to begin with the text, and to give that text the meaning that it bore when it was adopted by the people…. If you don’t believe in originalism, then you need some other principle of interpretation. Being a non-originalist is not enough. You see, I have my rules that confine me. I know what I’m looking for. When I find it — the original meaning of the Constitution — I am handcuffed. If I believe that the First Amendment meant when it was adopted that you are entitled to burn the American flag, I have to come out that way even though I don’t like to come out that way. Now, if you’re not going to control your judges that way, what other criterion are you going to place before them? What is the criterion that governs the Living Constitutional judge? What can you possibly use, besides original meaning? [W]hen the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean. – Supreme Court Justice Antonin Scalia Full Text: http://context.montpelier.org/document/886 [M]y…approach to constitutional interpretation…places considerable weight upon consequences - consequences valued in terms of basic constitutional purposes. It disavows a contrary constitutional approach, a more "legalistic" approach that places too much weight upon language, history, tradition, and precedent alone while understating the importance of consequences…. [T]he Constitution, considered as a whole, creates a framework for a certain kind of government. Its general objectives can be described abstractly as including 1) democratic self-government, 2) dispersion of power (avoiding concentration of too much power in too few hands), 3) individual dignity (through protection of individual liberties), 4) equality before the law (through equal protection of the law), and 5) the rule of law itself. literalist judges who emphasize language, history, tradition, and precedent cannot justify their practices by claiming that is what the Framers' wanted, for the Framers did not say specifically what factors judges should emphasize when seeking to interpret the Constitution's open language.50 Nor is it plausible to believe that those who argued about the Bill of Rights, and made clear that it did not contain an exclusive detailed list, had agreed about what school of interpretive thought should prove dominant in the centuries to come. Indeed, the Constitution itself says that the "enumeration" in the Constitution of some rights "shall not be construed to deny or disparage others retained by the people." Professor Bailyn concludes that the Framers added this language to make clear that "rights, like law itself, should never be fixed, frozen, that new dangers and needs will emerge, and that to respond to these dangers and needs, rights must be newly specified to protect the individual's integrity and inherent dignity.“ – Supreme Court Justice Stephen Breyer Full Text: https://www.supremecourt.gov/publicinfo/speeches/sp_10-22-01.html

Supreme Court History Marshall Court (early 19th century) Marbury v. Madison (1803) – judicial review; constitutionality of laws and policies Pro-Federalist decisions – expansion of national government power and influence Taney Court (mid 19th century) Scott v. Sanford (Dred Scott decision) (1857) Pro-Democratic decisions – states’ rights and limited government Late 19th Century-Early 20th Century (“Lochner Era”) Wake of 14th Amendment – incorporation Plessy v. Ferguson (1896) – “separate but equal” Pro-business, pro-laissez-faire decisions during Gilded Age/Progressive Era/1920s New Deal (1930s) FDR’s court-packing to save New Deal policies from conservative rulings “the switch in time to save nine” Warren Court (1950s-1960s) Active in civil rights and civil liberties decisions; “most liberal court ever” Brown v. Board of Education, Miranda v. Arizona Burger Court (late 1960s- early 1980s) More conservative regarding rights of defendants Roe v. Wade, Regents of UC v. Bakke Rehnquist and Roberts Courts (late 1980s-2010s) Continues the conservative ideology Planned Parenthood v. Casey, McDonald v. Chicago, Citizens United v. FEC

Historic Supreme Court Justices Chief Justice John Marshall (1803-1835) Marbury v. Madison McCulloch v. Maryland Gibbons v. Ogden Worcester v. Georgia Barron v. Baltimore Joseph Story (1812-1845) Martin v. Hunter’s Lessee Chief Justice Roger Taney (1836-1864) Charles River Bridge v. Warren Bridge Scott v. Sandford Ex parte Merryman Benjamin Curtis (1851-1857) Cooley v. Board of Wardens Scott v. Sandford (dissent) Stephen J. Field (1863-1897) Pioneer in substantive due process Slaughter-House Cases (dissent) Munn v. Illinois (dissent) John Marshall Harlan (1877-1911) “The Great Dissenter” Plessy v. Ferguson (dissent) Insular Cases (dissent) Lochner v. New York (dissent) Oliver Wendell Holmes (1902-1932) Schenck v. United States Abrams v. United States (dissent) Louis Brandeis (1916-1939) Olmstead v. United States (dissent) Charles Evans Hughes (1910-1916, 1930-1941) Near v. Minnesota Schechter Poultry Corp. v. United States West Coast Hotel Co. v. Parrish Benjamin Cardozo (1932-1938) Schechter Poultry Corp. v. United States (dissent) Steward Machine Co. v. Davis

Historic Supreme Court Justices Hugo Black (1937-1971) Korematsu v. United States Engel v. Vitale Gideon v. Wainwright Felix Frankfurter (1939-1962) Baker v. Carr (dissent) William O. Douglas (1939-1975) United States v. Paramount Pictures Griswold v. Connecticut Sierra Club v. Morton (dissent) Robert Jackson (1941-1954) West Virginia State Board of Education v. Barnette Youngstown Sheet & Tube Co. v. Sawyer (concurrence) Korematsu v. United States (dissent) Chief Justice Earl Warren (1953-1969) Brown v. Board Miranda v. Arizona Suggestions? William Brennan (1956-1990) Baker v. Carr NY Times v. Sullivan Texas v. Johnson Harry Blackmun (1970-1994) Roe v. Wade Furman v. Georgia (dissent) Bowers v. Hardwick (dissent) Chief Justice William Rehnquist (1972-2005) “The Lone Ranger” Roe v. Wade (dissent) United States v. Lopez Anthony Kennedy (1988-Current) Lawrence v. Texas Citizens United v. FEC Obergefell v. Hodges