Chapter 14- The Courts (1). Examine roles of the Constitution & Congress in creating the Federal Courts. (1). Examine roles of the Constitution & Congress in creating the Federal Courts. (2). Discuss the structure of the Federal Court System at its various levels, including: District Courts, Courts of Appeal, and contrast original vs. appellate jurisdiction. (2). Discuss the structure of the Federal Court System at its various levels, including: District Courts, Courts of Appeal, and contrast original vs. appellate jurisdiction. (3). Examine the origins of Judicial Review and the role of Marbury v. Madison. (3). Examine the origins of Judicial Review and the role of Marbury v. Madison. (4). Contrast judicial activism with judicial restraint, and define stare decisis. (4). Contrast judicial activism with judicial restraint, and define stare decisis. (5). Discuss the various limitations placed on the Federal Courts. (5). Discuss the various limitations placed on the Federal Courts. (6). Examine the characteristics of the Supreme Court and discuss its make up. (6). Examine the characteristics of the Supreme Court and discuss its make up. (7). Discuss the politics of selection, and explain how judges are nominated & confirmed. (7). Discuss the politics of selection, and explain how judges are nominated & confirmed. (8). Discuss the judicial & ideological impact of Presidential appointments on the Court. (8). Discuss the judicial & ideological impact of Presidential appointments on the Court. (9). Explain the decision process used by the Supreme Court to determine cases, and define & explain: Rule of four, amicus curiae, and stare decisis. (9). Explain the decision process used by the Supreme Court to determine cases, and define & explain: Rule of four, amicus curiae, and stare decisis. (10). Examine the different types of Supreme Court opinions, and contrast majority, concurring, and dissenting opinion, and explain how & why they are different. (10). Examine the different types of Supreme Court opinions, and contrast majority, concurring, and dissenting opinion, and explain how & why they are different. (11). Analyze member voting patterns and discuss who usually wins before the Court. (11). Analyze member voting patterns and discuss who usually wins before the Court. (12). Examine the role of the lower Federal Courts, and discuss the key role played by the Senate during the nomination and confirmation process. (12). Examine the role of the lower Federal Courts, and discuss the key role played by the Senate during the nomination and confirmation process. (13). Discuss the State Court system, its diverse organizations, and its judicial selection (13). Discuss the State Court system, its diverse organizations, and its judicial selection

The Federal Courts Judiciary: The Third Branch of Government Judiciary: The Third Branch of Government – Joint creation of the Constitution & Congress – Courts established & abolished as required w/times (by who?)

The Constitution and the Federal Courts Founders: independent court system crucial to success Founders: independent court system crucial to success Article III: Article III: – “judicial power … vested in one supreme Court” – also lists Court’s jurisdiction (Original vs. Appellate) Article II: presidential appointment power => judges Article II: presidential appointment power => judges – With Senate’s “advice & consent” (vote to confirm?) – Congressional impeachment and removal power Organization & structure (any blueprint details?) Organization & structure (any blueprint details?) – Details left to who? – – Congress (why?)* – Article III fairly broad & directs Congress to fill in the details

Congress and the Federal Courts Judiciary Act of 1789 Judiciary Act of 1789 – Established Chief Justice & 5 associated justices – Basic levels of Federal Court System to consist of: Supreme Court, Circuit Courts, & District Courts Supreme Court, Circuit Courts, & District Courts – Modified throughout US History=> (# of justices) Court of Appeals Act of 1891 Court of Appeals Act of 1891 – Supreme Court, Appeals Courts,*& District Courts* *number of Courts increased by Congress w/population + *number of Courts increased by Congress w/population +

Congress and Federal Courts (2) Type of Federal Court depends on its source: Type of Federal Court depends on its source: – Those created or stemming from Article III => Referred to as: constitutional courts (or Article III Courts) Referred to as: constitutional courts (or Article III Courts) These Federal Court Judges appointed & confirmed for life These Federal Court Judges appointed & confirmed for life Federal Courts created by Congress (Article I) => Federal Courts created by Congress (Article I) => – legislative courts (Article I Courts or Tribunals)* – Judges for these courts serve fixed terms (14-15 years)

Constitutional Courts Constitutional Courts The three-tiered system of Federal District courts, Courts of Appeal (originally circuit courts), and the Supreme Court. Article III of the Constitution provides for the creation of these courts. Judges serve for life Legislative Courts Legislative Courts Various Administrative Courts and Tribunals that Congress establishes Created by Congress as need arises by power established in Article I of the Constitution. Judges serve fixed terms Two Types of Federal Court Groups

Federal Court System (Article III) Three Tier Configuration Supreme Court Courts of Appeals Federal District Courts Original Jurisdiction Appellant Jurisdiction (Both kinds*)

Federal Court System (Article I Courts) AKA: Legislative Courts Congress Establishes Other (Legislative) Courts Tribunals Appeals & others Administrative

US Federal Court System Article III Article I Article III VA Appeals State Supreme Courts Which Courts are Article III & which are Article I?

US Circuit Courts

Federal Courts as Policy Makers Judicial Review versus Judicial Activism Judicial Review versus Judicial Activism – Courts role in Policy Making – Constitution’s broad outline => open to interpretation Evolution & status of Supreme Court’s power Evolution & status of Supreme Court’s power – Role of precedence: – Article VI and establishment of National Supremacy – Based on Court’s decision in McCulloch v. Maryland Marbury v. Madison & establishment of key precedence Marbury v. Madison & establishment of key precedence – Key role of Chief Justice John Marshall – Marshall’s decision established what key Court power? Judicial Review* (significance?) Judicial Review* (significance?) – New power of the Court established – what power? – Court’s power to declare laws unconstitutional (Fig 14-3)

Judicial Review Judicial Review What happens when Judicial Review is taken to extreme? Judicial Activism Judicial Activism Judicial review is the doctrine allowing the Supreme Court to review and overturn laws made by Congress and decisions made by the president. Judicial Activism is the vigorous use of judicial review to overturn laws and make public policy from the federal bench.

Laws Declared Unconstitutional ( )

Limitations on the Courts Limitations constraining Judicial Actions: Limitations constraining Judicial Actions: – Reactive nature of the Courts – Inability to enforce Court rulings (depends on who?) – Ability Of Congress to pass new laws (or modified) Or President to modify executive regulations Or President to modify executive regulations – Public Opinion (gradual impact) – Trend toward moderate decisions (Figure 14-4)* Narrow interpretation of the law the norm=> narrow rulings Narrow interpretation of the law the norm=> narrow rulings Court’s need to maintain Public’s perception of Legitimacy Court’s need to maintain Public’s perception of Legitimacy Avoid sweeping changes to precedence (O’Connor vs. Scalia) Avoid sweeping changes to precedence (O’Connor vs. Scalia)

Supreme Court as a Political Institution Who serves on the Court? The Characteristics of the Court Different paths to taken the Supreme Court (Box 14-1)

Supreme Court Ideological Direction Civil & Criminal Rights (Miranda) Roe v. Wade

US Supreme Court Role of the Chief Justice of the United States Role of the Chief Justice of the United States – Position vaguely described in Article I/Section 3’s reference (“When president is tried the Chief Justice shall preside…” (“When president is tried the Chief Justice shall preside…” – Tradition: first among equals (but w/definite limits) – Presides over Court and Impeachment of President – Potential impact on Court’s direction Warren Court vs. Burger Court vs. Rehnquist Court vs. Roberts Warren Court vs. Burger Court vs. Rehnquist Court vs. Roberts Rewards for service: Rewards for service: – (Salary, Socio-economic status & prestige, job satisfaction) Length of Service (die or retire?) Length of Service (die or retire?) – Presidential legacies & impact on the Court => (Fig 14-5)* – Lasting influence on future Court Rulings

Presidential Impact on The Supreme Court *

Politics of Nomination and Confirmation Inherently politically process – why? Inherently politically process – why? – Presidential legacy => impact of choice long after confirmation Reasons for contested nominations: Reasons for contested nominations: – Perception of presidential weakness – President’s party in minority in Senate – Lack of credentials or weak character of nominee – Legal views clash w/powerful members of Senate & IGs Robert Bork’s paper trail of controversial opinions at Harvard Robert Bork’s paper trail of controversial opinions at Harvard Rejected by influential special interests of own party members (Miers) Rejected by influential special interests of own party members (Miers) Recent trends: increased blocking of nominations Recent trends: increased blocking of nominations – Judicial philosophy “Litmus test” on key moral issues – GOP threat to change the Senate rules on confirmation debate – Reason: High stakes involved=> future make up of the Court (5/4) Future Court majority & its judicial philosophy=> How the Court rules Future Court majority & its judicial philosophy=> How the Court rules

Presidential Legacies on the Supreme Court President’s theoretical impact shown by slide 18 President’s theoretical impact shown by slide 18 Voting consistency with President not guaranteed Voting consistency with President not guaranteed Sometimes unexpected positions taken Sometimes unexpected positions taken – O’Connor (Reagan) on sex discrimination cases – David Souter (Bush I appointment) votes routinely with Liberal side Justices’ legal views may change over time Justices’ legal views may change over time – Ike appointed Warren (Conservative CA Gov.) => but led very liberal court Judicial & Ideological leanings of the Rehnquist Court: Judicial & Ideological leanings of the Rehnquist Court: Stevens Souter Ginsburg & Breyer Thomas Rehnquist Scalia Kennedy & O’Connor Result: Narrow RulingsOften 5 to 4 split Roberts? Replacement?* =>

Nominee To Replace Sandra Day O’Connor President Bush picks Alito for Supreme Court, officials say WASHINGTON (AP) — President Bush, stung by the rejection of his first choice, will nominate Samuel Alito to the Supreme Court, selecting a conservative federal judge to replace retiring Justice Sandra Day O'Connor, a moderate. President Bush picks Alito for Supreme Court, officials say WASHINGTON (AP) — President Bush, stung by the rejection of his first choice, will nominate Samuel Alito to the Supreme Court, selecting a conservative federal judge to replace retiring Justice Sandra Day O'Connor, a moderate.

Next Assignment Chapter 14 Learning Objectives 9-14 Chapter 14 Learning Objectives 9-14 Quiz on Key Terms Chapters Quiz on Key Terms Chapters – Bring SCANTRON 25/25 & #2 pencil Luncheon Learn:* Class delayed 15 minutes Luncheon Learn:* Class delayed 15 minutes *(The Old Days?)

Decision Making at the Supreme Court Hearing a Case: Hearing a Case: – Writ of certiorari* (cases actually granted appeal) – Role of law clerks (screen appealed cases for discuss list) – The Rule of Four* – Amicus curiae* briefs Number of cases appealed to the Supreme Court: Number of cases appealed to the Supreme Court: Compare with number actually heard by Supreme Court & lower courts

Appeals versus Cases Heard

Writ of Certiorari A Supreme Court order for a lower court to send it the records of a case–the first step in reviewing a lower court case Rule of Four The Supreme Court rule that at least four justices must decide that a case merits a review before it goes on the Court's schedule Decision to Hear a Case- Key Terms

amicus curiae Literally, friend of the court. A brief filed with the court by a person or group who is not directly involved in the legal action but who has views on the matter. Factors Affecting Case- Key Term

Factors Affecting Court Decisions Individual Decision Making: Individual Decision Making: – The role of life experience (Justice O’Connor) – The role of Precedence => stare decisis* *Doctrine that previous Court Decision should be allowed to stand – Precedence

Supreme Court Opinions Three Different Types? Three different types of Court Decisions: Three different types of Court Decisions: – majority opinions – concurring opinions – dissenting opinions Examine more closely* Examine more closely*

Majority OpinionConcurring OpinionDissenting Opinion The document announcing and usually explaining the Supreme Court's decision in a case. A statement from one or more Supreme Court justices agreeing with a decision in a case, but giving an alternative explanation for it. A statement from one or more Supreme Court justices explaining why they disagree with a decision in a case. Supreme Court Opinions Voting Patterns:  Predictable positions of Supreme Court justices  “5-4” Decisions & the role of Kennedy & O’Connor

Who Wins Before the Supreme Court? Solicitor General’s track record (67%) Solicitor General’s track record (67%) – Experience & frequency before the Court – Only strong cases only need apply Court’s political independence (Nixon tapes) Court’s political independence (Nixon tapes) – Unanimous agreement to turnover tapes Do rich do better than the poor before the Court? Do rich do better than the poor before the Court? – Deciding on the merits (Lower levels vs. top level)

The Lower Federal Courts District Courts Created by Congress (based on Article III) Created by Congress (based on Article III) – Political appointment process (strong Congressional influence) District Courts (DC): District Courts (DC): – Purpose & focus: establish the facts of the case – In most cases => decide fate (end of trial or appeals) – Most DC cases are civil cases (80+%) vs. criminal (mostly state) Statutory actions & Petitions from prisoners Statutory actions & Petitions from prisoners Civil rights complaints & Tax suits Civil rights complaints & Tax suits Bankruptcies & Contract enforcement & Liability claims Bankruptcies & Contract enforcement & Liability claims Main DC job: Apply the law as defined by Congress Main DC job: Apply the law as defined by Congress – Little flexibility (w/some limited opportunities)

Courts of Appeal Decide cases appealed from District courts Decide cases appealed from District courts – Appellate Jurisdiction (aka: Appellate Courts) Focus: legal issues tried in district or state: Focus: legal issues tried in district or state: – Determine if trial was fair – Judge applied law correctly – (Do not determine facts of case => who does?) District Courts District Courts Result: Appellate Courts have more flexibility to interpret & extend law Result: Appellate Courts have more flexibility to interpret & extend law

Nomination and Confirmation Nominees to District & Appeals Courts Also nominated by the President & confirmed by Senate Also nominated by the President & confirmed by Senate Senate has greater say at District & Appeal Court levels Senate has greater say at District & Appeal Court levels – Role of Senatorial Courtesy Partisan politics alive & well in selection process Partisan politics alive & well in selection process – (Table 14-1)* => breakdown of partisan politics – Note Reagan’s legacy => conservative outcome

Partisan Politics of Nominations

State Courts Get the majority of all cases heard (100M vs. 265K): Get the majority of all cases heard (100M vs. 265K): – States operate differently from Federal Courts – Primary focus: criminal trials States vary in organization from state to state States vary in organization from state to state – Also vary in selection of judges & term limits State Court Organization: State Court Organization: – Broad range of variety of forms, structures, & names – All have Supreme Courts or courts of last resort – All vary in the extent they protect citizens’ rights Many go beyond US Constitution Many go beyond US Constitution – Some act as legal “path finders” for nation

Judicial Selection to State Courts Method of selection varies from state to state Method of selection varies from state to state Model used follows own state (vice Federal) selection model: Model used follows own state (vice Federal) selection model: – 1. State legislature chooses – 2. Voters elect => both in partisan & non-partisan elections – 3. Some in variations & combinations of above Missouri Plan Missouri Plan – Appointment (by Governor) & election combination – Appointed for 12 year term => then must stand for reelection Merit System Merit System – Variation of Missouri Plan – Goal: reduce partisan politics Selection method used & its impact on Justice: unclear Selection method used & its impact on Justice: unclear

Length of Service for State Judges Most state judges serve for fixed terms Most state judges serve for fixed terms In contrast to Federal Judges: removal easier: In contrast to Federal Judges: removal easier: – 1. Reelection defeat – 2. Recall (by the voters) – 3. Disciplinary commission action for wrong doing Elected judges must raise campaign funding Elected judges must raise campaign funding – Results in a Trade off: Judicial independence v. political Responsiveness* Judicial independence v. political Responsiveness* *Special interest or at least perception of obligation *Special interest or at least perception of obligation – (Especially to Trial Lawyers who contribute and present cases before them)

State Laws & their variance Laws & punishment vary state to state: Laws & punishment vary state to state: – Death penalty (38 versus 12 states) – Abortion rights – Social or Morality oriented laws (Nevada vs. NC) – Gun control laws (Figure 14-7)* National uniformity & the Bill of Rights National uniformity & the Bill of Rights – Supreme Court’s interpretation of US Constitution – Apply “equal protection” of liberties to all – In other cases leave judicial discretion to the States

States Allowing Concealed Weapons- 2005

Chapter 14: The Courts- KEY TERMS Amicus curiae: Literally, friend of the court. A person or group that files a legal brief in a case they are not directly involved in. Amicus curiae: Literally, friend of the court. A person or group that files a legal brief in a case they are not directly involved in. Concurring opinion: A statement from one or more Supreme Court justices agreeing w/decision in a case, but giving an alternative explanation for it. Concurring opinion: A statement from one or more Supreme Court justices agreeing w/decision in a case, but giving an alternative explanation for it. Constitutional courts: The three-tiered system of federal district courts, courts of appeal (originally circuit courts), and the Supreme Court. Article III of the Constitution provides for the creation of these courts. Constitutional courts: The three-tiered system of federal district courts, courts of appeal (originally circuit courts), and the Supreme Court. Article III of the Constitution provides for the creation of these courts. Dissenting opinion: A statement from one or more Supreme Court justices explaining why they disagree with a decision in a case. Dissenting opinion: A statement from one or more Supreme Court justices explaining why they disagree with a decision in a case. Judicial activism: The vigorous use of judicial review to overturn laws and make public policy from the federal bench. Judicial activism: The vigorous use of judicial review to overturn laws and make public policy from the federal bench. Judicial review: The doctrine allowing the Supreme Court to review and overturn decisions made by Congress and the president. Judicial review: The doctrine allowing the Supreme Court to review and overturn decisions made by Congress and the president. Legislative courts: Various administrative courts and tribunals that Congress establishes, as Article I of the Constitution provides. Legislative courts: Various administrative courts and tribunals that Congress establishes, as Article I of the Constitution provides.

Chapter 14: The Courts- KEY TERMS (2) Majority opinion: The document announcing and usually explaining the Supreme Court’s decision in a case. Majority opinion: The document announcing and usually explaining the Supreme Court’s decision in a case. Marbury v. Madison: The Supreme Court decision in 1803 that established the principle of judicial review. Marbury v. Madison: The Supreme Court decision in 1803 that established the principle of judicial review. Missouri Plan/Merit System: The system some states use to select judges, appointing them but requiring them to stand for periodic reelection. Missouri Plan/Merit System: The system some states use to select judges, appointing them but requiring them to stand for periodic reelection. Rule of Four: The Supreme Court rule that at least four justices must decide that a case merits a review before it goes on the Court’s schedule. Rule of Four: The Supreme Court rule that at least four justices must decide that a case merits a review before it goes on the Court’s schedule. Senatorial courtesy: The practice a president follows in choosing a nominee for a district or appeals court judgeship. The president selects a nominee from a list supplied by the senator of the president’s party from the state or region where the vacancy occurs. Senatorial courtesy: The practice a president follows in choosing a nominee for a district or appeals court judgeship. The president selects a nominee from a list supplied by the senator of the president’s party from the state or region where the vacancy occurs. Stare decisis: The doctrine that previous Supreme Court decisions should be allowed to stand. Stare decisis: The doctrine that previous Supreme Court decisions should be allowed to stand. Writ of certiorari: A Supreme Court order for a lower court to send it the records of a case—the first step in reviewing a lower court case. Writ of certiorari: A Supreme Court order for a lower court to send it the records of a case—the first step in reviewing a lower court case.

Test II Preparation Review all Key Terms presented in Chapters Review all Key Terms presented in Chapters – Both their definitions and how there are applied – Understand their application in context to LOs – Review Class Notes for Chapters Questions asked and discussed in class are good examples Questions asked and discussed in class are good examples Monday: bring SCANTRON 50/50 W/#2 pencil Monday: bring SCANTRON 50/50 W/#2 pencil – Questions? – Quiz on part 3 on Key Terms- NOW!