Chapter 12 The Judiciary

Common Law Tradition  Common law = judge-made law; originated in England; derived from prevailing customs  Precedent = court ruling bearing on subsequent legal decisions in similar cases Emanates from stare decisis, or standing on decided cases  Precedents set by Supreme Court binding on all lower courts; highest court in U.S.

Sources of American Law  Constitutions United States Constitution State Constitutions  Congressional Statutes  Administrative regulations  Case law = previous court decisions

Basic Judicial Requirements  Jurisdiction (Article III, Section 1) Authority to hear and decide a case  Federal question U.S. Constitution, treaties, federal law  Diversity of citizenship Parties from different states or countries  Standing to sue Sufficient state to justify bringing suit; party must have been threatened by or suffered a harm as a result of the action  Justiciable controversy Real, substantial case; no hypotheticals

Federal Courts  U.S. District Courts Trial courts of general jurisdiction 94 total, at least one in each state  U.S. Courts of Appeals 13 total, regional jurisdiction Appellate courts Hears appeals from district courts Panels of three or more judges

Supreme Court  9 justices  Number can be changed by Congress  Appointment process often highly politicized  Primarily an appellate court  Hears appeals from federal courts and highest state courts  Only deals with federal questions  Writ of certiorari/rule of four (sur-shee-uh- rah-ree, petition for review approved by 4 justices)  Oral arguments

Which Cases Reach the Supreme Court? a subjective process, but certain factors increase a case’s chances  Two lower courts are in disagreement  Lower court’s ruling conflicts with an existing Supreme Court ruling  Case has broad significance  State court has decided a substantial federal question

Which Cases Reach the Supreme Court? (cont.)  Highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law  Federal court holds an act of Congress unconstitutional  Solicitor general is pressuring the Court to hear a case

Types of Court Decisions  Discuss cases twice a week in conference  Opinions Unanimous = all agree Majority = at least 5 agree Concurring = support with qualification Dissenting = disagrees with court ruling  Affirm = court ruling is valid  Reverse = void a court ruling  Remand = send the case back

Selection of Federal Judges  Appointed by the president  Confirmed by the Senate  Senatorial courtesy and district courts  Partisanship of court appointees  Senate Judiciary Committee hearings

Courts as Policymakers  Our current court, p. 296  Judicial review = power of the courts to declare the laws of Congress and acts of governmental officials unconstitutional  Judicial activism = taking a broad view of the Constitution and using judicial power to direct policy towards a desired goal  Judicial restraint = rarely using judicial review and limiting judicial action in the policy process

Checks on the Judiciary  Executive checks Judicial implementation = court has no enforcement power Appointments  Legislative checks Appropriation of funds to carry out rulings Constitutional amendments Amending laws to overturn court’s rulings

Checks on the Judiciary, (cont.)  Public opinion Sometimes can ignore decisions Pressure for non-enforcement Influence judicial opinions  Judicial self-restraint Tradition of restraint Narrow focus of judicial questions Political questions better decided by other branches Stare decisis = following precedent

Discussion questions 1.What are the major sources of law in the U.S.? 2.What would be the strengths and weaknesses of electing justices? 3.What would our political system look like if judicial review had been rejected? 4.Should federal judges engage in judicial activism or judicial restraint? 5.Describe the checks on judicial power.

Hot Links to Selected Internet Resources:  Book’s Companion Site: chmidtbrief chmidtbrief2004  Wadsworth’s Political Science Site:  The Federal Judiciary:  Supreme Court of the United States:  FindLaw: