1. The Weakest Branch: Or Is It? Henry B. Stobbs, MFA Kenyon Academic Partnership

2. Copyright Notice Certain materials in this presentation are included under the fair use exemption of the U.S. Copyright Law and have been prepared with the multimedia fair use guidelines and are restricted from further use.

3. I.Purpose of Courts A. Resolve legal disputes by applying the law to indv situations 1. Criminal law: the people vs an indv 2. Civil law: an indv vs an indv ***Please note that a legal indv does NOT have to be a human being. A legal indv can be an indv, a business, a corp, a govt agency.***

4. B. Major players 1. Criminal law a. Prosecutor—represents the people b. Defendant—indv accused of breaking law 2. Civil law a. Plaintiff—indv who was wronged b. Defendant—indv accused of wrongdoing 3. Judge a. Applies the law b. Instructs the jury c. Keeps proceedings fair and neutral d. May decide case if no jury 4. Jury a. Decides facts of case b. Determines innocence or guilt

5. C.Precedent A ruling that sets guidelines for future similar cases D.Jurisdiction 1. Define: a court’s right to hear a case 2. Original jurisdiction (aka: trial court) a. First time a case is heard b. Establishes facts of case/determines innocence or guilt 3. Appellate jurisdiction a. Higher court that reviews trial court decisions b. Does NOT retry the case; only determines if 1. Original proceedings were fair 2. Law was correctly applied

6. E.State courts 1. Deal with state laws 2. Three levels a. Trial courts b. Appellate courts (aka courts of appeal) c. State supreme court (aka court of final appeal) 3. Cases may be appealed to the USSC if a federal or constitutional issue is involved

8. F.Federal Courts 1. Original jurisdiction over federal issues a. Federal laws b. Constitutional issues c. Resident of one state v resident of another state d. Treaties e. Maritime issues f. Foreign govt is involved g. US govt is involved 2. Three levels a. Trial court (aka District Court) b. Appellate court (aka Court of Appeals) c. Supreme Court (aka Court of Final Appeal)

10. Routes to the USSC Federal District Courts Specialized Federal Courts Court of Appeals for the Federal Circuit Court of Military Appeals Certiorari Federal Court of Appeals Certiorari Certification Certiorari State Courts of Last Resort (Usually State Supreme Courts) Appeal

11. II.The Story of the Federal Court System A. The Judiciary Act of 1789 Established the federal court system by dividing the country into federal judicial districts, creating district courts and courts of appeals

12. B.District Courts 1. 94 across the country and US territories a. 89 throughout the states according to population distribution b. 1 each in 1. D.C. 2. Puerto Rico 3. Guam 4. US Virgin Islands 5. Mariana Islands 2. Original jurisdiction over federal cases 3. Territory District Courts also have original jurisdiction over local cases

13. C.Courts of Appeals (Circuit Courts) 1. 13 across country a. 12 hear appeals from district courts b. 1 hears appeals from 1. Special courts like claims court, tax court, etc 2. Federal agencies like Office of Patents and Trademarks, Civil Service Commission, etc

14. D.Federal Judges 1. Appointed by President a. Advisors recommend candidates b. Professional background c. Political/social views d. Collegiate career 2. Confirmed by Senate a. Judiciary cmte. holds hearings b. Professional background c. Political/social views d. Simple majority vote

15. 3.Life terms a. Death b. Resignation/retirement c. Impeachment 4. Balance rights of indv vs common good

16. III.United States Supreme Court A. Judicial Review 1. Define: Power to overturn any Act of Congress or executive action the Court deems unconstitutional 2. Is it in the Constitution? Not specifically stated; however, the Constitution says the Court shall “interpret the law”

17. Back Story Interlude: Judiciary Act of 1801 Reduced SC to 5 justices Eliminated circuit duties Created 16 judgeships for six judicial circuits, which gained jurisdiction over all cases arising under the Constitution and acts of the United States Eased the ability of creditors to recover debts in federal court Federalists loved it, Republicans hated it!

18. Interlude, continued… Monday, March 2, Tuesday march 3, 1801 Senate approves nominations of 53 “Midnight” justices of the peace, registers of wills, and marshals for the new District of Columbia Among the justices of the peace is one William Marbury

19. 3.Established by Marbury v Madison (1803) a. Facts of the case: Marbury appointed Washington, D.C. Justice of the Peace by outgoing Pres. John Adams. b. New Pres. TJ tells Sec State Madison NOT to deliver letter of appointment (Marbury can’t take his new job) Marbury sues in USSC citing right to do so in Fed Jud Act of 1789 and asks for a writ of mandamus c. Justices consider both facts of case and law in question

20. d. Findings: Marbury was legally appointed and Sec State Madison should deliver letter BUT the part of the Fed Jud Act of 1789 that said the USSC would hear this type of case is unconstitutional. The Constitution lists specific type cases the USSC has original jurisdiction over. This was not one of them. SO, because that part of law was unconstitutional, Marbury shouldn’t have sued in USSC and USSC doesn’t have authority to make Madison deliver the letter.

21. e. Precedent set: THE CONSTITUTION IS WHAT THE SUPREME COURT SAYS IT IS First time Court interpreted the Constitution to the extent of declaring part of a law unconstitutional. This put the Jud Branch on equal footing with Leg and Exec branches because the Court has the power to declare acts of the others unconstitutional. ***The US STILL has arguments over this issue!! Many people recognize this as constitutional, but others say the Constitution is black and white and NOT subject to anyone’s interpretation—including the USSC!

22. B.Justices 1. Appointed by President a. Advisors recommend candidates b. Professional background c. Political/social views d. Collegiate career 2. Confirmed by Senate a. Judiciary cmte holds hearings b. Professional background c. Political/social views d. Simple majority vote

23. 3.Life terms a. Death b. Resignation/retirement c. Impeachment 4.Why it matters!! Conservative presidents = conservative justices Liberal presidents = liberal justices Justices serve for years Justices interpret the Constitution; set precedent Those precedents affect all Americans

24. C.A day in the life of the USSC… 1. Calendar a. Term: first Monday in October – end of June b. Sittings: 2-wk sessions when Justices hear cases then retire to decide opinions 2. Selecting cases a. Original jurisdiction cases—must hear these 1. State govt. v state govt. 2. Foreign rep a party in a case b. Appellate jurisdiction cases—choose to hear 1. Must deal with federal or constitutional issue 2. Must impact a majority of citizens

25. “Rule of Four”—four of the nine justices must agree to hear the indv case out of the 1000s of cases appealed to them. 3.Case is on the docket (aka a court’s schedule or calendar) a.Briefs are submitted—written summary of each lawyer’s side of the case b.Justices study lower court proceedings and briefs c.Oral arguments 1. Each side gets 30 mins to argue 2. Justices get to ask questions

26. 4.Deliberations a. CJ summarizes case and main points b. Group discussion, each presents views c. Justices vote—simple majority “wins” 5. Opinions issued a. Define: written statement explaining ruling and reasons for reaching that decision b. Majority opinion: “winning” decision, sets precedent c. Concurring opinion: agree with majority opinion but for different reasons d. Dissenting opinion (aka minority opinion): disagree with majority opinion

27. D.Factors influencing the Court 1. Constitution—fundamental law of US 2. Precedent—are there past similar cases 3. Intent—of the Constitution and law(s) in question 4. Social values—what is the current view of most Americans (will of the people) 5. Personal judicial philosophy—to what extent should justices become involved in setting policy

28. JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?

29. JUDICIAL ACTIVISM: the Jud branch is an equal partner with the Leg and Exec and should be actively involved in interpreting and applying laws. Strong belief in judicial review.

30. JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy? JUDICIAL ACTIVISM: the Jud branch is an equal partner with the Leg and Exec and should be actively involved in interpreting and applying laws. Strong belief in judicial review. JUDICIAL RESTRAINT: the Jud branch should let the Leg and Exec branches set policy and only get involved if that policy is a flagrant violation of Constitution. Not a strong belief in judicial review. *NEITHER VIEW IS LIBERAL OR CONSERVATIVE*

31. E.Checks on the Court 1. Executive: pres appoints conservative or liberal justices/judges depending on his beliefs 2. Legislative: Senate confirms appointees based on its majority’s beliefs 3. Amendment process: a. How is this a check? USSC makes decision people REALLY don’t like. People persuade Congress to propose a constitutional amendment. If ratified by the states, it nullifies the USSC decision.

32. b. Examples 1. Dred Scott (1857) decision: Slave was property and not free just because he had lived in a free state. As property, and not a US citizen, he had no right to sue in federal court. 14 th Amendment (1868) : Declared former slaves to be US citizens with all rights of citizenship. This amendment nullified the Dred Scott decision.

33. Abortion???? Flag burning???? Gay marriage???? Stem cell research???? *****PLEASE NOTE***** The president CANNOT propose a constitutional amendment. WHY??

34. At no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 USC 378 [1798]): The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

35. References Agresto, John. The Supreme Court and Constitutional Democracy. Ithaca, NY: 1984, Cornell P. Infoplease.com. “The Judiciary act of 1789.” Infoplease.com. Available from http://www.infoplease.com/t/hist/federal-judiciary-act. Internet; accessed 2 march 2009. http://www.infoplease.com/t/hist/federal-judiciary-act Long, Bill. "The Judiciary Act of 1801 I." Legal History II. Available from http://www.drbilllong.com/LegalHistoryII/1801.html. Internet; accessed 3 March 2009. Montaldo, Charles. “Supreme Court Façade”. Supreme Court Photos. Photograph Available from http://www.About.com. Internet; accessed 2 March 2009. http://www.About.com Patterson, Thomas E. We the People: A Concise Introduction to American Politics, 6 th Ed. New York: 2006, McGraw-Hill. “Chief Justice John Marshall.” U.S. Courts History. Photograph Available from http://www.dcd.uscourts.gov/marshall.html. Internet; accessed 2 March 2009. http://www.dcd.uscourts.gov/marshall.html