1. The Judicial Branch

2. Essential Question
What is the role of and how does the judicial branch of government work in the U.S.?

3. Judicial Branch
Article III of the Constitution established the judicial branch of government with the creation of the Supreme Court.
This court is the highest court in the country and vested with the judicial powers of the government.
There are lower Federal courts but they were not enumerated in the Constitution. Congress deemed them necessary and established them using power granted from the Constitution.

4. What does the Constitution say?
The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”
“The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority.”
Article III: Sections 1 and 2

5. Types of courts (Federalism) State and Federal Federal:
Constitutional courts
Bankruptcy, military, tax courts
Constitutional courts:
Trial
Civil and Criminal
Appellate
Supreme
U.S. Courts Link

6. How do cases get to the Supreme Court?
Screened by solicitor general & clerks
Rules of access:
Controversy
Standing
Mootness
Writ of Certiorari
Original jurisdiction
Discretion

7. How do judges make decisions?
Stare decisis: let the precedent stand

8. Powers of the judicial branch
Constitution

9. Powers of the judicial branch
Constitution
Judicial Review: Marbury vs. Madison
Historical influence

10. Checks and balances The judiciary’s powers
Can declare laws and executive actions unconstitutional
Checks on the judiciary
Rules that limit standing in federal courts
No enforcement powers
Shaped by Congress and the president
Congress affects size and jurisdiction

11. The ‘Least Dangerous Branch’
“The interpretation of the laws is the proper and peculiar province of the courts…If there should happen to be an irreconcileable variance between [a law and the Constitution], that which has the superior obligation and validity ought of course to be preferred, or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents…This conclusion [does not imply] a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both…”
Hamilton, Federalist 78

12. The ‘Least Dangerous Branch’
“The courts on the pretense of a repugnancy may [not] substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of the two contradictory statutes…The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body…”
Hamilton, Federalist 78

13. The ‘Least Dangerous Branch’?
Judicial activism: Willingness to overturn precedent and laws
Judicial restraint: Deference to elected representatives and precedent

14. In pairs:
Think of some examples of famous Supreme Court cases. Did the Court make the right decision, in your mind, in those cases? Did it do so by overturning precedents and laws passed by elected bodies, or by refusing to do so?
Do you think that judges should be guided by judicial activism or judicial restraint? What are the dangers of an unelected judiciary that is happy to overturn laws and precedents? What are the dangers of interpretation that always defers to precedent?

15. Judicial Review
Courts decide arguments about the meaning of laws, how they are applied, and whether they violate the Constitution (aka judicial review)
Judicial Review is this process that the judiciary uses to provide checks and balances on the legislative and executive branches.

16. Judicial Review
Judicial review is not an enumerated power given to the courts but it is an implied power.
In Marbury v. Madison (1803), the courts' power of judicial review was clearly articulated.

17. Basic Characteristics
The judicial branch hears cases that challenge or require interpretation of the legislation passed by Congress and signed by the President.
Consists of the Supreme Court and the lower federal courts.
Appointees to the federal bench serve for life or until they voluntarily resign or retire.

18. Basics
The Supreme Court is the most visible of all the federal courts.
The number of Justices is determined by Congress rather than the Constitution, and since 1869, the Court has been composed of one Chief Justice and eight Associate Justices. Justices are nominated by the President and confirmed by the Senate.

19. Current Supreme Court John G. Roberts, Jr., Chief Justice
John Paul Stevens
Antonin Scalia
Anthony Kennedy
David Souter
Clarence Thomas
Ruth Bader Ginsberg
Stephen Breyer
Samuel Alito Jr.

20. Interpreting the Law
Primary function of courts in general and Supreme Court in particular
Mechanical jurisprudence—the view of judging
Laws often ambiguous

21. Legal Interpretation Judges base decisions on precedents, laws
Explain interpretations by invoking generally accepted legal standards or yardsticks
Can sometimes explain decisions by the literal meaning of the words of text in question

22. Legal Interpretation May refer to intent of the framers
Previous court cases/precedents
May base decisions on social or political needs
**All enhance the credibility of decisions

23. Structure & Jurisdiction
Dual Court System
There are 50 state court systems
One federal court system
Each state has a state supreme court, though some do not actually use the term "supreme court."

24. State Courts
Lower courts include municipal courts, police courts, justices of the peace, and/or district magistrates.
The lowest courts in the state judicial hierarchy have limited jurisdiction in both civil & criminal cases.

25. State Courts Trial courts with general jurisdiction
Most cases of a relatively serious nature start here

26. State Courts Intermediate appellate courts
Trial court decisions can be appealed here

27. State Courts Sate Supreme Court or Court of Appeals
--This court occupies the top position in the state judiciary

28. Federal Courts
Three-level Pyramid

29. Federal Courts
The United States district courts are at the bottom of the triangle.
The United States court of Appeals are the middle.
The United States Supreme Court is at the top

30. Court Jurisdiction
A case that is heard on original jurisdiction originates or starts in that court. It has not previously been heard in a lower court.
A case heard on appellate jurisdiction has already been heard elsewhere, and it is now being heard on appeal.

31. Jurisdiction
Federal courts have jurisdiction over cases involving federal parties (example: ambassadors, leaders, etc) or federal questions (examples: federal laws or treaties, interpretation of constitutional law)

32. US Constitution
Constitutional Courts—judges enjoy lifetime tenure; Article III
Legislative courts---Article I, Provide advisory opinions and perform other functions assigned to them by Congress

33. Supreme Court Only court explicitly outlined in Constitution
Membership fixed by Congress
Since 1869 the Court has had 9 members, including a chief justice and eight associate justices
6 members are needed for quorum

34. Supreme Court
President nominates
Lifetime appointment

35. Supreme Court Process
Chooses cases—no independent data, relies on briefs
Oral arguments heard over seven 2-week sessions
Conference Days—Private meetings/deliberation

36. Supreme Court Process
At meeting, they speak in descending order of seniority.
Take tentative vote in ascending order of seniority
Assign opinion writing—drafted and circulated to fellow justices for comment

37. Supreme Court Opinions
Per Curiam: Unsigned decisions of the Court that states the facts of the case and the ruling
Majority Opinion: written opinion of the majority stating reasoning for the decision, also called the Opinion of the Court

38. Supreme Court Opinions
3. Concurring Opinion: Can be authored by a justice who agrees with the outcome of a case but for different reasons; may go on record with own opinion; can influence future opinions; can lessen impact of majority opinion

39. Supreme Court Opinions
Dissenting Opinion: minority opinions; written by justices who dissent; may influence future decisions; can undermine majority opinion
Plurality opinion: in the absence of a majority opinion presents the reasoning of most of the justices who side with the winning party