1. The Federal Judiciary 16

2. Alexander Hamilton Federalist # 78 : judiciary would be the “least dangerous branch of government. Lacked teeth of other 2 branches of government; it had neither the power of the sword nor the power of the purse.” Today federal courts very powerful. Courts have two basic limitations: no power of the purse, nor the sword. The court cannot fund programs nor can it force compliance with its rulings. e.g., after Brown, Congress and Pres refused to enforce speedy compliance, weakening compliance for decade THE JUDICIARY

3. The Constitution and the National Judiciary Article III: –Supreme Court where judicial power of US vested –life tenure or 'good behavior' for judges –judges receive compensation that cannot be diminished during their service –such inferior courts as Congress may choose to establish –the original jurisdiction of the Supreme Court The intent of Article III was to remedy failings of Articles of Confederation (which left judicial matters to the states).

4. Participants + Terms in Legal System Litigants: plaintiff ( ∏) and defendant ( ∆) Smith v. CUSD Standing to Sue: ∏ must have serious interest in case or have sustained injury by ∆’s actions. Dred Scott v. Sanford Amicus Curie Briefs: legal briefs submitted by friend of the court for purpose of raising additional pts of view. Attempt to influence ct’s decision

5. Stare decisis: let the decision stand. Earlier decisions hold for case being considered. Precedent: way similar cases handled in past— guide to current decisions Original intent: Constitution should be interpreted to Framers’ original intent. Scalia “per curiam” decision: written by entire court; no reasoning; not used for precedent value. Writ of Habeas Corpus: Ct order requiring jailers to explain to judge why they holding prisoner in custody.

6. Class Action: permitting small # of people to sue on behalf of all others similarly situated. Opt in or out Class certification criteria Numbers: So many possible ∏ s against ∆ = not practical for them to file their own suits. Same claims: common legal and factual issues = efficient to deal with all claims together. Thousands of claims against a manufacturer for a faulty dishwasher switch causing a fire hazard is a good example Typical cases: named ∏ s the representative, have same claims and defenses as the others in class. Representatives: fair and adequate protection for the class.

7. Judicial Review Judicial review = power of court to decide if a law or other legal issue contravenes the Constitution, and overturn it. Power not mentioned in the Constitution! Judicial review was established by the Marshall Court for itself in Marbury v. Madison (1803). (Jefferson hated this decision) Marbury = Court has final say in what Constitution means.

8. Judicial Review Judges have used this power sparingly. The power has only been used about 140 times to strike down acts of Congress. Although more frequently (over 1200 times) to invalidate acts of state legislatures.

9. The American Legal System American legal system = dual system: –state courts--actually 50 different 'systems' –federal courts Both systems have three tiers: –trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction) –appellate courts--decide questions of law, not fact (appellate jurisdiction) –high or supreme courts

12. State or Federal Jurisdiction? 1.Original J/D: power of courts to hear a case first, usually in trial. Determine matters of fact. USSCt has both Original (US v. State, State v. State, ambassadors) and Appellate J/D 2.Appellate J/D: hear cases brought to ct on appeal from lower courts. Determines matters of law, not fact.

13. State or Federal Jurisdiction? 1.Federal J/D Constitutional matters Federal Crimes (e.g., kidnapping) Civil Suits under Fed Law Diversity Jurisdiction—($75 K + different states) Bankruptcy Admiralty Naturalization of aliens

14. Federal or State Jurisdiction? 2.State Jurisdiction State crimes (white collar too) Civil litigation Family law Traffic court Small claims

15. State or Federal Jurisdiction? 1.You are caught jaywalking and get a ticket. 2.Your next-door neighbor tells you where you can buy get some Kiddie Porn on the internet—and you buy it. 3.Your sister, vacationing in Yosemite, gets caught driving under the influence. 4.A native American batters a fellow native American on an Indian Reservation? Tribal Jurisdiction

16. 5.An Indian kills an non-native on a Federal Reservation. Federal and Tribal Jurisdiction (concurrent) [Indian tribes - as sovereign nations - historically have inherent jurisdictional power over everything occurring within their territory.] 6.You sue your sister, who lives in Wyoming, for her breach of contract with you (worth over 75 k) Federal (diversity jurisdiction)

17. 7.In a fit of rage, Sam goes on a killing spree, killing a convenience-store clerk in Fresno and then shooting/killing a camper at Kings Canyon National Park. State (for the clerk); Federal (camper)

18. Federal Selection Process Selection of judges =very political process. Judges nominated by president and confirmed by Senate. –Presidents solicit suggestions from members of the House of Representatives, Senators, their political party. Provides president opportunity to put philosophical stamp on federal courts Senatorial Courtesy: nominations for fed judicial posts not confirmed if opposed by senator of Pres’ pty from state where judge will serve.

19. USSCt Nominees-contentious battles over Senate confirmation from 1960s to 1990s ex: Bork (1987), Thomas (1991)

20. Who are Federal Judges? Typically federal judges have: –held previous political office such as prosecutor or state court judge –political experience such as running a campaign –prior judicial experience –traditionally been mostly white males –lawyers

21. Federal Selection Process President Dept. of Justice Senators Senate Jud. Comm. ABA Senate Interest Groups

22. Nomination Criteria 4No constitutional qualifications 4Competence 4Ideology/Policy Preferences 4Rewards 4Pursuit of Political Support 4Religion 4Race and gender

23. Federal Court Nominees Nominated by President (District Ct, Appellate, USSCt) Lower Federal Courts: Senatorial Courtesy Must be approved by majority vote in Senate USSCt Nominees-contentious battles over Senate confirmation from 1960s to 1990s

24. US Supreme Court Justices Number of justices set by Congress Has varied from 5-10. 9 Justices since President Grant in 1869. In 1937, FDR attempted to add 6 more Justices to the Supreme Court.

27. How the Justices Vote Legal Factors Judicial Philosophy: Judicial Restraint v. Judicial Activism –Judicial Activism - judges should use the law to promote justice, equality, and personal liberty. Judges should uphold the “guardian ethic” and act as guardians of the people. Examples: 1.Requiring states to provide legal aid for the poor 2.Supporting affirmative action plans 3.Requiring states to educate undocumented aliens 4.Striking down death penalty laws as violating 8 th Amendment

28. Judicial Restraint - advocates minimalist roles for judges. - Philosophy that courts should allow the states and 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 --Courts should INTERPRET the law rather than MAKE the law

29. Restraints on Judicial Power A.Courts can make decisions, but can’t enforce them B.Courts must wait for cases to come to them C.Presidential appointment of judges D.Congress: Senate confirmation of judges impeachment and removal passing Constitutional amend (e.g., 14 th Amend overturned Dred Scott v. Sanford) determining courts’ jurisdiction

30. Restraints on Judicial Power E.Precedent: Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature. F.Stare Decisis: let the decision stand. Legal principle by which judges are obliged to obey the set-up precedents established by prior decisions G.Existing Laws H.The Constitution I.Public Opinion: USSCT probably doesn’t “follow the election returns” in the short run because the Justices were appointed by previous Presidents for life terms. However Court will probably reflect public opinion b/c Justices are appointed by Presidents who were elected by the people.

31. Extra-Legal Factors Behavioral Characteristics –The personal experiences of the justices affect how they vote. Early poverty, job experience, friends and relatives all affect how decisions are made. Ideology –Ideological beliefs influence justices' voting patterns. The Attitudinal Model –A justice's attitudes affect voting behavior. Public Opinion –Justices watch TV, read newspapers, and go to the store like everyone else. They are not insulated from public opinion and are probably swayed by it some of the time. How the Justices Vote

33. How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and Amicus Briefs submitted Justices Conference Cases discussed Votes taken Opinion Assigned Opinions Announced Opinions Drafted and Circulated Oral Argument

34. Judicial Policy Making and Implementation All judges do is make policy. This was particularly noticeable following the Court ordered desegregation in 1954 Brown ruling. Courts do not have the power to implement their decisions. The executive branch must enforce the Court’s decisions.

35. The Supreme Court Today Poll- 23% of Americans knew how many justices sit on Supreme Court, and 2/3 could not name a single member. Poll of teenagers showed that only 2% could name the Chief Justice. The Supreme Court, and the federal court system, have a number of powers and some significant limitations. Courts = peopled by individuals like all of us who are influenced by society.