1. Unit 4D National Judiciary
Institutions
Unit 4D
National Judiciary

2. 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

3. 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

4. Court of Appeals

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. “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:
[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:

16. 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

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

18. Historic Supreme Court Justices
Hugo Black
( )
Korematsu v. United States
Engel v. Vitale
Gideon v. Wainwright
Felix Frankfurter
( )
Baker v. Carr (dissent)
William O. Douglas
( )
United States v. Paramount Pictures
Griswold v. Connecticut
Sierra Club v. Morton (dissent)
Robert Jackson
( )
West Virginia State Board of Education v. Barnette
Youngstown Sheet & Tube Co. v. Sawyer (concurrence)
Korematsu v. United States (dissent)
Chief Justice Earl Warren
( )
Brown v. Board
Miranda v. Arizona
Suggestions?
William Brennan
( )
Baker v. Carr
NY Times v. Sullivan
Texas v. Johnson
Harry Blackmun
( )
Roe v. Wade
Furman v. Georgia (dissent)
Bowers v. Hardwick (dissent)
Chief Justice William Rehnquist
( )
“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