By Loren Miller

U.S. SUPREME COURT, 1790

New York City

U.S. SUPREME COURT TODAY

Washington, D.C.

http://www.oyez.org

ARTICLE III

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 WEAKEST BRANCH?

The federal judicial system was expected to be the weakest branch of the government and early presidents had a difficult time finding people who would serve on the Supreme Court as there was little to do.1790 – 0 cases 1791 – 2 cases 1792 – 5 cases

THE WEAKEST BRANCH?

The judicial branch became more of a “co-equal” branch when John Marshall became Chief Justice.

JUDICIAL REVIEW

The principle that the courts have the power to strike down legislative and executive acts that are unconstitutional.

Hylton v. U.S. (1786)

Marbury v. Madison (1803)

Number of Federal Laws Declared Unconstitutional

1798-1859 21860-1909 291910-1929 211930-1939 131940-1959 71960-1979 361980-1999 402000-2013 21

TOTAL 169

Number of State Laws Declared Unconstitutional

1790-1859 361860-1909 1821910-1929 2581930-1939 921940-1959 1271960-1979 3461980-1999 2262000-2011 40

TOTAL 1,307

TYPES OF LAW

• Constitutional Law• Statutory Law

– Civil Law– Criminal Law

• Administrative Law• Common Law • Natural Law

• Litigation abounds:– A D.C. judge sued his

drycleaner for $54 million for losing his pants

– Schools that now ban running at recess

– The teacher sued for repositioning a student’s hands on a flute

A Hazard of Texting

COMMON LAWStrictly speaking, common law must be:

1) Unwritten and 2) Traced back to England

Today, common law means that legal decisions build from precedent established in previous cases and apply commonly throughout the jurisdiction of the court.

Administrative Agencies

Federal Trade Commission: regulation of advertising and telemarketing.

Federal Communications Commission: regulates the broadcast, cable, satellite, and telephone industries.

Federal Election Commission: regulates political campaign contributions and expenditures.

Food and Drug Administration: regulates prescription drug and medical product advertising.

Administrative Rules# of pages in Federal Register

(in thousands)

CASELOADS IN FEDERAL COURTS In Thousands

CASELOADS IN TEXAS COURTS In Thousands

HOW TO INTERPRET THE LAW

• Doctrine of Original Intent• Literalism or Absolutism• Stare Decisis• Balancing Approach

• Can judges interpret the law “value free”??– Judicial Activism: go beyond the words of the

law to consider the societal implications of the decision (one who overturns a law)

– Judicial Restraint: should not go beyond the clear words of the law.

WHO ARE THE ACTIVIST JUDGES?

HOW TO INTERPRET THE LAW

The law, in its majestic impartiality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.

Jacques Thibault, French Nobel Prize Winning Writer, 1894

INTERPRET THESE TEXAS LAWS

• At one time it was illegal to own a copy of the Encyclopedia Britanica in the state—because that publication contained a formula for making liquor.

• The town of Princeton outlawed onion throwing.

INTERPRET THESE TEXAS LAWS

• There was a state law that prescribed that when two trains met at a railroad crossing, each had to come to a full stop, and neither could proceed until the other had gone.

• El Paso made it a crime to throw a faded bouquet into a trash can.

JUDICIAL SYSTEM, 1790

13 District Courts

3 Circuit Courts Of Appeal

Supreme Court

Created by the Judiciary Act of 1789

Created by the Constitution

FEDERAL COURT SYSTEMU.S. Supreme Court

(8,200 appeals)

Original Jurisdiction

94 U.S. District Courts (677 Judges)

(361,000 cases)

Legislative Courts

Federal Regulatory and Administrative

Agencies

13 U.S. Courts Of Appeals (179 Judges) (56,000 cases)

2014

ARTICLE I COURTSSPECIALIZED COURTS

• Article I, Section 8 -- the necessary and proper clause Is used by Congress to create legislative courts– Tax Court (19 judges; 15 year terms)– Court of Appeals for Veterans Claims (7

judges; 15 year terms)– Court of Military Appeals (5 judges; 15

year terms)– U.S. Claims Court (16 judges; 15 year

terms)

ARTICLE I COURTSSPECIALIZED COURTS

• Recent Courts:– Foreign Intelligence Surveillance Court

• A secret court formed to hear government requests for warrants to conduct surveillance on suspected spies. Judges are “borrowed” from the district court.

• If the judge denies the government’s request, then the government may appeal to the Foreign Intelligence Surveillance Court of Review. Judges are “borrowed” from the courts of appeals.

APPELLATE COURTS

Patents and International Trade

FEDERAL & STATE COURTS

State Trial Courts

(14 million filings)

State Intermediate Courts of Appeal

(160,000 cases)

State Courts of Last Resort

(76,000 cases)To U.S. Supreme Court

2014

The Number of Supreme Court Opinions

The Number of Supreme Court Opinions

Acetate CT–2

FEDERAL JURISDICTION

• SUBJECT MATTER (What is involved)

• PARTIES (Who is involved)

U.S. CONSTITUTION

FEDERAL LAWS

Civil & Criminal

TREATIES

STATE V. STATE

U.S. GOVERNMENT

REP. OF FOREIGN COUNTRY

DIVERSITY OF CITIZENSHIPADMIRALTY LAW

JUSTICIABILITY• Ripeness: is it too early for the Court to decide the case?

• Mootness: is it too late for the Court to decide?

• Venue: is this Court the right one (jurisdiction)

• Political Question: is the subject matter appropriate for the Court to decide at all

• Standing: does the participant have a stake in the matter

OPINIONS IN THE SUPREME COURT, 2011-12

• Original jurisdiction 1• Civil actions from lower federal courts 42• Federal criminal and habeas corpus cases 20• Civil actions from state courts 7• State criminal cases 8

• TOTAL 78

TYPE OF CASE NUMBER OF CASES

JUDICIARY ACT OF 1925

• Prior to 1925, the Supreme Court was required to “hear” all cases properly brought before them

• Since 1925, the Supreme Court only hears “cases of national importance”

THE ACCEPTANCE PROCESS

• Original Jurisdiction– very few cases begin at the Supreme

Court

• Appellate Jurisdiction– party must apply for a “writ of

certiorari” (a cert)

WHY ACCEPT??

% Reversed By Supreme Court

WHY ACCEPT??

When the federal government (solicitor general) is the party asking for review.

When there is a conflict between circuits.

When the circuit court decision was not unanimous.

When the case involves civil rights and civil liberties.

When the justices are interested in the subject matter.

When numerous interest groups show significant social or political interest.

ACCEPTANCE PROCESS

Approximately 7,500cases are appealed

to the Court

Law Clerks screenappeals & submitrecommendations

to justices

Recommendationsare considered in Conference

Review denied formore than 99% of

cases

Rule of Four

Discuss List

SUPREME COURT CASE LOADS, 1930-2010

DECISION-MAKING PROCESS

Court’s docket(80-125 cases)

Briefs submitted by both sides; amicuscuriae briefs filed

OralArgument

JudicialConference

Opinion draftedand

circulated

DecisionAnnouncedPublic

OpinionInfluence of Executive Branch

Lower Court Rulings and Precedents

Internal Politics of Court

Class Action

JUDICIAL CONFERENCE

In the conference a preliminary vote is taken with the Chief Justice voting last.

If the Chief Justice is in the majority, then s/he will assign someone (maybe himself) to write the “Opinion of the Court.” If the Chief Justice is not in the majority, then the Justice with the most seniority who is in the majority will write the opinion. This opinion is circulated to all the Justices.

JUDICIAL CONFERENCE

Any Justice in the minority may write a “Dissenting Opinion,” which is also circulated to all of the Justices.

If a Justice in the majority agrees with the Opinion of the Court but for reasons other than those stated in the Opinion of the Court, s/he may write a “Concurring Opinion,” which is also circulated to all of the Justices.

HOW LONG DOES IT TAKE?

Days from Oral Argument to Decision, 2012

Mean = 94

Unanimous Decisions

JUDICIAL RECRUITMENT

• Judicial recruitment in the United States is unlike the selection process of most western democracies.

• Western democracies treat being a judge as a distinct profession requiring specialized training.

• Judicial selection in the United States is a political process with few formal requirements.

A GROWING FEDERAL JUDICIARY

32% 37% 45%13%

39% 50% 22%44%

% OF JUDGESHIPS FILLED BY PRESIDENT

2012

45

13

39

50

22

44 37

35

18

CONFIRMATION DELAY(in Days)

23%

Background of Supreme Court Justices to 2015

• Religious Affiliation:– Protestant 83– Roman Catholic 14– Jewish 7– Unitarian 7

– No Affiliation 1 • Age on Appointment:

– Under 40 5– 41-50 33– 51-60 60– 61-70 14

Background of Supreme Court Justices to 2015

• Religious Affiliation:– Roberts Roman Catholic– Scalia Roman Catholic– Kennedy Roman Catholic– Kagan Jewish– Sotomayor Roman Catholic– Thomas Roman Catholic– Ginsburg Jewish– Breyer Jewish– Alito Roman Catholic

Background of Supreme Court Justices to 2015• Educational Background:

– College Graduate 96 Not a College Graduate 16

• Gender– Male 108– Female 4

• Race:– Caucasian 109– African American 2– Hispanic 1

Background of Supreme Court Justices to 2015

• Law School of Current Justices– Roberts Harvard– Alito Yale– Kagan Harvard– Scalia Harvard– Kennedy Harvard– Sotomayor Yale– Thomas Yale– Ginsberg Columbia– Breyer Harvard

Background of Supreme Court Justices to 2015

• Party Affiliation:– Federalist (to 1835) 13– Democratic Republican (to 1828) 7– Whig (to 1861) 1– Democrat 46– Republican 44– Independent 1

Background of Supreme Court Justices to 2015

• Party Affiliation:– Roberts G.W. Bush R– Kagan Obama D– Scalia Reagan R– Kennedy Reagan R– Thomas G. Bush R– Ginsburg Clinton D– Breyer Clinton D– Alito G.W. Bush R– Sotomayor Obama D

WHAT’S IT TAKE TO BE A FEDERAL JUDGE?

• District Judge– role of senatorial courtesy

• Judge, Circuit Court of Appeals

Party Affiliation of District Judges

President Party % Same Party

Nixon Republican 93%

Ford Republican 79%

Carter Democrat 91%

Reagan Republican 92%

Bush Republican 89%

Clinton Democrat 88%

Bush Republican 83%

Obama Democrat 86%

*Through 2012

WHAT’S IT TAKE TO BE A SUPREME COURT

JUSTICE?• Overriding Considerations

– political party– political ideology

• Other Variables– age– geography– gender– race– religion

FEDERAL COURT APPOINTMENTS (%)

2014

FEDERAL COURT NOMINEES BY RACE

2013

FEDERAL COURT NOMINEES BY GENDER

2013

THE SUPREME COURT OVER TIME% Conservative Votes

SUPREME COURT TRIVIA

• Longest Serving: William O. Douglas, 36 years

• 1st Catholic: Roger Taney, 1836-1864• 1st Jew: Louis Brandeis, 1916-1939• 1st Black: Thurgood Marshall, 1967-1991• 1st Woman: Sandra Day O’Connor, 1981-2006• 1st Hispanic: Sonia Sotomayor, 2009-