1. Dec 2 – CompGov – The Judiciary
Agenda:
Finish Video
Assign Court Cases
Begin Research
HW:
Begin Ch 15 SG
Read ( )
Take Out:
Video Notes
Pen/Pencil
Notebook

2. The Judiciary
The Federal Courts

3. Some Key Facts. . .
The Supreme Court receives about 8,000 petitions to be heard from lower courts
Makes a decision on about 1% of those cases
Thus, about 99% of all cases that come before the court are “denied”

4. Which best fits our court system?

5. Note. . . Judicial Power is PASSIVE!! Now—
Courts cannot reach out and “create” cases
Must wait for cases to come to them
Now—
They can spot “cases” from the lower courts and “keep an eye on them”
Very common especially at the SC level

6. The Least Dangerous Branch?
Alexander Hamilton, Federalist 78 “The Judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution.”
Justice Felix Frankfurter, “The Supreme Court is the Constitution.”
Woodrow Wilson “ The Supreme Court is a constitutional convention in continuous session.”
So, initial responses? Dangerous or not?

7. Judicial Law Making. . . Judges interpret law, and therefore MAKE law;
Evidence?
Evidence?
Over 1000 state laws and 1000 federal laws have been ruled unconstitutional
SC has reversed itself over 200 times since 1810
Since 1960, SC has increasingly ruled on Political questions

9. Congressional Underpinnings- Structure of the federal court system
Article 3: Constitutional Courts
Creates Supreme Court—gives Congress power to create “inferior” or lower courts
Provides the basis for our judicial system
Life terms!
Three levels:
District Court—lowest level of federal courts
Court of Appeals (Circuit Courts)
Supreme Court

13. The Supreme Court

15. Background 9 members; highest court in the land;
# set by Congress, Pres apts Chief Justcie
Key Powers—judicial review
Federal judges are appointed by the President on the “advice and consent” of the Senate
Needs a majority for confirmation
Shall hold their office “during good behavior”—basically for life
Can be removed by Congress—impeached

16. How do Supreme Court justices choose which cases to hear?
1. Look for broad, sweeping issues
2. Look at petitions from litigants wanting to appeal to them
Then, each justice makes a list – a discuss list – of what cases they would most like to see
The justices meet in secret with their discuss lists
Starting with the most junior justice, they bring up cases and talk about them
In order to hear a case, 4 justices have to say they want to hear it
Granting cert. is agreeing to hear a case
4 is not a majority
The 4 that want to hear a certain case have to be sure that they can get a 5th judge to side with them
It’s a strategic process
Rule of 4

17. How the Court Works Runs from 1st Monday in October to the end of June
Hear cases / arguments M—Th, must have 6 justices to hear a case
Oral arguments last 30 minutes—open to public
After oral arguments, they chat about the case

18. Cues Issues – accept constitutional issues/civil liberties
Conflicting rules – when lower courts disagreed
Lawyers – good attorneys they have seen before have an influence
“Amicus Curiae” briefs – more likely to accept cases with briefs that ask them NOT to hear the case
Realistically, there are lots of cases that come to the court and are not read or studied – it would be impossible to read/study all of them
Justices (and their clerks) look for specific characteristics or cues

20. The Roberts Court Alito Sotomayor Kennedy Ginsburg Scalia Thomas
Breyer
Kagan
John Paul Stevens – 1975, Ford …replaced by Elena Kagan (2009 Obama)
Antonin Gregory Scalia – 1986, Reagan (Conservative, From New Jersey; educated by Georgetown and Harvard)
Anthony McLeod Kennedy – 88, Reagan (Moderate, From California; educated by Stanford and Harvard)
David Hackett Souter – 90, GH Bush replaced with Sonia Sotomayor (09, Obama) (Moderate/Liberal, Raised in the Bronx; educated by Princeton and Yale Law School)
Clarence Thomas – 91, GHW Bush (Conservative, From Georgia; educated by Holy Cross College and Yale)
Ruth Bader Ginsburg – 93, Clinton (Liberal, From New York; educated by Cornell, Harvard, and Columbia)
Stephen Gerald Breyer – 94, Clinton (Liberal, From California; educated by Stanford, Oxford, and Harvard)
Samuel Anthony Alito – 06, GW bush (Conservative, From New Jersey; educated by Yale and Princeton)
Roberts – 05, Bush (Conservative, From upstate New York; educated at Harvard)
Chief Justice John Roberts

22.
Jump…

23. The Structure of the Judicial System

24. Jurisdiction
“Original Jurisdiction”: the jurisdiction of the court to hear a case first – usually at a trial.
facts
“Appellate Jurisdiction”: the jurisdiction of the courts that hear cases brought to them on appeal from decisions of a lower court.
only on the legal issues of the case.
“Original Jurisdiction”: the jurisdiction of the court to hear a case first – usually at a trial.
The court with original jurisdiction will hear the claims of fact and law between the parties, determine the facts, apply the law, and make the initial decision in the case.
“Appellate Jurisdiction”: the jurisdiction of the courts that hear cases brought to them on appeal from decisions of a lower court.
The appellate courts do not re-decide factual disputes (they accept the factual record of the case from the trial court) but only on the legal issues of the case.

25. State & Federal Courts
98% of all criminal cases are decided in the state courts.
Only a small percentage of cases are decided by trial. Most criminal cases are decided by plea agreements.
Most civil cases also are decided in the state courts.
Only a small percentage of cases are decided by trial. Most are settled.

26. Types of Justices
Presidents strongly influenced by judicial ideology in choosing justices.
Judicial Activism
Judicial Restraint
Original Intent
Evolutionists

27. Judicial Activism
Philosophy that the courts should take an active role in solving social, economic or political problems
“guardian ethic”
 I. Judicial activism.
Philosophy that the courts should take an active role in solving society’s problems.
Courts should uphold the "guardian ethic:" they act as a guardian of the people.
Examples of judicial activism:
Striking down Topeka School Board’s policy of seg. in Brown v. Board (1954)
Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann)
Striking down the Gun Free School Zones Act in US v. Lopez, 1995.
Striking down line item veto in Clinton v. NY 1998
Striking down Florida recount in Bush v. Gore 2000
Striking down state death penalties for mentally retarded in Atkins v. Virg., 2002
Striking down a Texas sodomy law in Lawrence v. Texas
Striking down a DC city ordinance banning handguns in DC v. Heller, 2008

28. Judicial Restraint
Philosophy that the courts should allow the states and other branches to solve social, economic, or political problems.
Courts should “interpret” the law, not make the law
Suggests “original intent” of founding fathers—decide cases on the basis of what the founding fathers “wanted”
II. Judicial restraint.
Philosophy that the courts should allow the states and the other two branches of the federal government to solve social, economic, and political problems.
Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers.
Courts should merely interpret the law rather than make law.
Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted.

29. On your notecard
Write which side of the room you were on (for) or (against) the death penalty
Listen for which justice took the same position you did and why.
Justice Breyer indicates 6 factors which influence his decision. Which does Breyer emphasize? Which does Scalia emphasize?
Words and context
History
Tradition
Precedent
Purpose and values
Consequences

30. On your notecard
Flip the card over and write which justice, Scalia or Breyer, took the same position you did with regards to the death penalty for juveniles.
In at least 2 sentences, write why you think the justice took that position.

32. Opinions Types: Unanimous—less than 1/3 of all cases
Majority—if CJ, he assigns someone to write
Dissenting—if CJ, the most senior of maj writes opinion
Concurring—someone who agrees with majority, but for different opinions

33. Carrying out the Opinions
Ways to get around court opinions
Amending Constitution—court cannot strike down something as unconstitutional if it is in the constitution
Remand to lower courts
Executive Branch may ignore decision
State and local governments may not carry it out either