JUDICIAL SYSTEM The judicial system –arena for two parties bring conflict before an impartial arbiter (a judge). Reality-rarely reach trial, settled out of court. Criminal law-crimes against society (or public order). Civil law-not involve a charge of criminality; dispute between two parties

Participants in the judicial system. Federal judges are restricted by Constitution Dispute between a plaintiff/ defendant—former charges latter. Litigants (the plaintiff and the defendant) Class action suit-small number of people to sue on behalf of all other people similarly situated.

Groups influence policy through the courts: i.e. Brown v. Board of Ed.-NAACP with Justice Thurgood Marshall- end “separate but equal” segregation. Amicus curiae (friend of the court)-do not argue case directly for litigants, influence court decisions through informational briefs

STRUCTURE JUDICIAL SYSTEM Constitution is vague about the federal court system: there will be a Supreme Court – Left it to Congress’ discretion to establish lower federal courts of general jurisdiction. In the Judiciary Act of 1789, Congress created a system of constitutional courts Supreme Court and 13 federal courts of appeal, 94 federal district courts, and thousands of state and local courts.

94 District courts. Courts of original jurisdiction. Hear no appeals. They are trial courts 98 % all criminal cases heard in state and local court systems, not in federal courts.

Courts of Appeal. Appellate jurisdiction review final decisions of district courts – Have the authority to review /enforce orders of federal regulatory agencies. 13 judicial circuits, one for the District of Columbia. 75 percent of 68,000 cases heard from district courts. Hears cases in panels consisting of three judges Focus on errors in procedure, no testimony. Decisions set precedent.

Supreme Court. Highest court in the federal system Only court specifically established within Article III of the Constitution. Nine justices : eight associates one chief justice. Size of the Court is not set in Constitution Functions include: – Resolving conflicts among the states. – Maintaining national supremacy in the law. – Uniformity in the interpretation of national laws. Nine justices sit together hear cases,make decisions (en banc). First decision-which cases to decide: – Controls own agenda.

The Supreme Court has both original and appellate jurisdiction. Most cases come from appeals process; appellate jurisdiction Cases may be appealed from both federal and state courts. Cases appealed from state courts: – Must involve “a substantial federal question.” – Petitioner must exhaust all potential remedies in the state court system. The Court will not settle matters of state law or determine guilt/ innocence in state criminal proceedings.

Pres. nominates judicial posts, Senate approves- majority vote. Constitution- serve for life “during good behavior” – Prevents political partisanship – May be impeached (only seven times), yet never removed – Salaries not reduced Insulates them from political pressure

Senate disposes of state-level federal judicial nominations through senatorial courtesy

Vacancy for federal district judgeship – One or two senators of president’s party from the state where the judge will serve suggest one or more names to the attorney general and the president The Department of Justice and the Federal Bureau of Investigation FBI conduct background checks – President selects nominee from screening process.

The Supreme Court Vacancy- presidents nominate someone from outside the Court, broader choice Selection process Attorney general and Department of Justice identify and screen candidates. – Sitting justices try to influence the nominations Senators much less role in the recruitment of Supreme Court justices than with lower court judges.

Failure to confirm. Presidents failed 20 % of the time -Senate confirmation of their nominees to the Supreme Court – Senate Judiciary Committee- probes nominee’s background/judicial philosophy. Trouble : – Presidents party minority in Senate – Make a nomination at end of term

BACKGROUNDS OF JUDGES JUSTICES Not a representative sample of the American people – Lawyers, white males. Race and sex have become more salient criteria in recent years. Geography was prominent criterion, no longer

“Politics” and the selection process. Ideology Presidents want to appoint people who share their views. Presidents influence policy through values of judicial nominees Members of the federal bench also play politics – Time their retirements so president with compatible views will choose their successors.

COURTS AS POLICYMAKERS Deciding which cases to accept The Supreme Court has control over its own docket. – 8,000 cases are submitted annually to Supreme Court. If four justices agree to grant review (the “rule of four”), it can be scheduled for oral argument

The solicitor general important influence on the Court. – Presidential appointee in charge of the appellate court litigation of the federal government.

Making decisions. Unlike a trial court, justices familiar with the case. Received written briefs from each party Also received briefs from parties who are interested in the outcome (amicus curiae—or “friend of the court”—briefs). Attorneys have a half-hour to address the Court. – Chief justice presides – Calls first on the senior associate justice for discussion then other justices in order of seniority. Votes are not final until the opinion is written

Opinion writing. Content of an opinion as important as the decision. – Written opinion is legal reasoning behind decision. Dissenting opinions written by justices opposed

The Supreme Court may overrule its own precedents Brown v. Board of Education (1954) when the Court overruled Plessy v. Ferguson (1896) (“separate but equal”) segregation in public schools violated Constitution.

The Supreme Court decides very few cases. (80)

Most contentious issue-judicial discretion (interpretation) and liberal policy – Constitution does not specify rules for interpretation – Strict constructionism (literal) of constitution – Conservatives view strict constructionism as means of constraining the exercise of judicial discretion Cause of the liberal decisions of the past four decades. Liberals- interpretation necessary for changing times

THE COURTS AND THE POLICY AGENDA Help to determine national policy agenda. Until the Civil War-dominant question slavery. From 1938 to the present, personal liberty and social and political equality.

John Marshall and the growth of judicial review. Marbury v. Madison- judicial review Marshall asserted for the courts the power to determine what is and is not constitutional- judicial review.

Judicial restraint- judges play minimal policymaking roles Judicial activism, in which judges make bolder policy decisions