Chapter 14Chapter 14The Judiciary BranchThe Judiciary Branch

Supreme CourtSupreme Court ConstitutionConstitution President nominates, Senate approvesPresident nominates, Senate approves 9 Justices9 Justices Washington, DCWashington, DC Original Jurisdiction (1% of cases)Original Jurisdiction (1% of cases)

1.two or more states1.two or more states 2. The US and a state2. The US and a state 3. Foreign ambassadors and other diplomats3. Foreign ambassadors and other diplomats 4. A state and a citizen of a different state (if begun in that state)4. A state and a citizen of a different state (if begun in that state)

Appellate Jurisdiction (99% of cases)Appellate Jurisdiction (99% of cases) Judges vote Judges vote Majority Opinion, Concurring Opinion, & Majority Opinion, Concurring Opinion, &

Dissenting OpinionDissenting Opinion

Inferior CourtsInferior Courts

District CourtsDistrict Courts Created by CongressCreated by Congress 610 Judges610 Judges Appointed by President and Confirmed by Appointed by President and Confirmed by

SenateSenate The 94 federal judicial districts include at The 94 federal judicial districts include at

least one district in each State, the District least one district in each State, the District of Columbia, and Puerto Rico. of Columbia, and Puerto Rico.

Original jurisdictionOriginal jurisdiction May try civil, criminal or constitutional casesMay try civil, criminal or constitutional cases Hear 90% of all cases in federal courtHear 90% of all cases in federal court

Inferior Courts cont…Inferior Courts cont…

Circuit CourtsCircuit Courts Created by CongressCreated by Congress 156 judges try >18,000 cases a year156 judges try >18,000 cases a year 12 districts12 districts Cases tried in a panel of 3 judges (sometimes Cases tried in a panel of 3 judges (sometimes

all judges of a circuit court hear a case)all judges of a circuit court hear a case) Jurisdiction- appellate- hears only appeals from Jurisdiction- appellate- hears only appeals from

District Courts and regulatory commissionsDistrict Courts and regulatory commissions Decisions can be appealed to the Supreme Decisions can be appealed to the Supreme

CourtCourt

US District and Appellate US District and Appellate courtscourts

Special CourtsSpecial Courts Examples of CourtsExamples of Courts

US Tax CourtUS Tax Court Military CourtsMilitary Courts Tribal CourtsTribal Courts

JudgesJudges Presidential appointment & Senate approvalPresidential appointment & Senate approval Terms are 5-15 yearsTerms are 5-15 years

JurisdictionJurisdiction Limited to specific topicsLimited to specific topics Can be original and appellateCan be original and appellate

Locations varyLocations vary

How do the Judges make How do the Judges make the lawthe law

Judges interpret the law- in doing so Judges interpret the law- in doing so in fact make lawin fact make law Statutes are often broadly worded, Statutes are often broadly worded,

unclear or contradictoryunclear or contradictory Constitution is certainly broadly Constitution is certainly broadly

worded- requires interpretationworded- requires interpretation

How do we know this?How do we know this? Courts have ruled >1000 state laws as being Courts have ruled >1000 state laws as being

unconstitutionalunconstitutional Courts have ruled that >1000 federal laws as Courts have ruled that >1000 federal laws as

being unconstitutionalbeing unconstitutional Supreme court has reversed itself >200 Supreme court has reversed itself >200

times since 1810times since 1810 Since 1960’s have been willing to rule on Since 1960’s have been willing to rule on

political questions rather than just legislative political questions rather than just legislative or constitutional questions (ex, Wesberry v. or constitutional questions (ex, Wesberry v. Sanders and Bush v. Gore)Sanders and Bush v. Gore)

Imposing remediesImposing remedies Before- loser paid winner one way or anotherBefore- loser paid winner one way or another Now- rulings apply to large groups and can affect Now- rulings apply to large groups and can affect

large numbers of peoplelarge numbers of people Federal judge ruled on improving a persons prison Federal judge ruled on improving a persons prison

conditions and told state to improve entire system at a conditions and told state to improve entire system at a cost of $40 millioncost of $40 million

Class suits contribute to this trendClass suits contribute to this trend

What kind of What kind of jurisdiction do the jurisdiction do the

federal courts have?federal courts have? 4 types4 types 1. Exclusive- sole authority of federal 1. Exclusive- sole authority of federal

court to try a casecourt to try a case 2. concurrent- authority of both a 2. concurrent- authority of both a

federal and a state court to try a casefederal and a state court to try a case Original- authority of a court to first try Original- authority of a court to first try

a casea case Appellate- authority of a court to hear a Appellate- authority of a court to hear a

subsequent appealsubsequent appeal

What cases get heard What cases get heard in a Federal Court?in a Federal Court?

Only if the following happens:Only if the following happens: Interpretation of the constitutionality of a law or treatyInterpretation of the constitutionality of a law or treaty A question of admiralty at sea (high seas or navigable US A question of admiralty at sea (high seas or navigable US

waters- collision of shipswaters- collision of ships Question of maritime law- Question of maritime law- Disputes between two or more statesDisputes between two or more states Ambassadors or diplomatsAmbassadors or diplomats The US gov’t as a partyThe US gov’t as a party Citizen of one state suing another person of another stateCitizen of one state suing another person of another state US citizen suing a foreign governmentUS citizen suing a foreign government Citizen of one state suing person from same state over Citizen of one state suing person from same state over

land grant issues land grant issues Judicial power is passive- cases must come to themJudicial power is passive- cases must come to them Only those with Only those with standingstanding may challenge a law or govt may challenge a law or govt

action- only those who has sustained or is near sustaining action- only those who has sustained or is near sustaining an injury may bring a case to court- one cannot challenge an injury may bring a case to court- one cannot challenge a law simply because one does not like it.a law simply because one does not like it.

Did you know the US has Did you know the US has attorneys as well.attorneys as well.

3 types3 types 1. Attorney General- head of the 1. Attorney General- head of the

justice dept justice dept (Eric Holder)(Eric Holder)

2. Solicitor General- represents US 2. Solicitor General- represents US gov’t in Supreme Court- decides what gov’t in Supreme Court- decides what cases will appeal to SC- decides US cases will appeal to SC- decides US position on these cases.position on these cases.

3. US Attorneys- 94 (one per district)- 3. US Attorneys- 94 (one per district)- represents US gov’t in civil cases represents US gov’t in civil cases before District courts and Courts of before District courts and Courts of Appeals- serve for 4-year termsAppeals- serve for 4-year terms

4. Assistant US attorneys- appointed 4. Assistant US attorneys- appointed by Attorney generalby Attorney general

Who appoints the Who appoints the judges?judges?

President appoints President appoints federal judgesfederal judges

Senate confirmsSenate confirms Most are chosen via Most are chosen via

senatorial senatorial recommendations but recommendations but also usually those also usually those who agree with who agree with Presidents views- Presidents views- even though the even though the federal judges might federal judges might change views laterchange views later

How is a Federal judge How is a Federal judge selected?selected?

Senatorial Courtesy- when appointed to Senatorial Courtesy- when appointed to District courts speak with 2 senators of the District courts speak with 2 senators of the persons statepersons state

Senate Judiciary Committee- screens Senate Judiciary Committee- screens nominees and sends recommendation to nominees and sends recommendation to Senate floor for approval or rejection. Senate floor for approval or rejection. More More scrutiny in the last few years (dems vs. reps)scrutiny in the last few years (dems vs. reps)

Factors in choosing a Factors in choosing a federal judgefederal judge Will they be able to get Will they be able to get

Senate majority for Senate majority for confirmationconfirmation

judges usually from same party judges usually from same party as presidentas president

Race- mostly white- black seat Race- mostly white- black seat established by Thurgood established by Thurgood Marshall- now Clarence Thomas Marshall- now Clarence Thomas

Gender- mostly male- 3 females Gender- mostly male- 3 females in Supreme Court- Ruth Bader in Supreme Court- Ruth Bader Ginsburg/Sonia Ginsburg/Sonia Sotomayor/Elena KaganSotomayor/Elena Kagan

Age- since supreme courts Age- since supreme courts justices have lifetime justices have lifetime appointments- appointments- presidential presidential influence continues after influence continues after they leave officethey leave office

Factors continuedFactors continued ideology of judges are similar ideology of judges are similar

to the nominating president’s to the nominating president’s philosophyphilosophy

Issues with this are:Issues with this are: Can change behaviorCan change behavior New issues could arise not predicted New issues could arise not predicted

by president (2001)by president (2001) Judges life terms protect them from Judges life terms protect them from

things president may not likethings president may not like 25% of Supreme Court judges stray 25% of Supreme Court judges stray

from the philosophy of the from the philosophy of the nominating president.nominating president.

Factors ContinuedFactors Continued American Bar Association evaluation used American Bar Association evaluation used

by Senate Judiciary committeeby Senate Judiciary committee Paper trail- have they written anything Paper trail- have they written anything

that might used as a backlash to their that might used as a backlash to their nominationnomination

Number of judges and courts can be Number of judges and courts can be increased or decreased (depends on increased or decreased (depends on relationship with President)-stitch in relationship with President)-stitch in time saves nine-Pres. Roosevelt court time saves nine-Pres. Roosevelt court packing during new deal packing during new deal administrationadministration Example- during President Andrew Johnson Example- during President Andrew Johnson

term - Congress shrank SC from 9-7.term - Congress shrank SC from 9-7. Originally started with 6 – now it has 9 .Originally started with 6 – now it has 9 .

How long do they serve and How long do they serve and how much do they get paid?how much do they get paid? Constitutional court judges serve for Constitutional court judges serve for

life terms- as long as they are capablelife terms- as long as they are capable Chief Justice Rehnquist died in office- Chief Justice Rehnquist died in office-

age 81age 81 Chief Justice makes $217,000/yr and Chief Justice makes $217,000/yr and

Associate judges make $203,000/yr – Associate judges make $203,000/yr – supreme courtsupreme court

Other district and federal judges make Other district and federal judges make @ $165,000/yr@ $165,000/yr

What to know more What to know more importantly?importantly?

Our judicial system allows for Our judicial system allows for second hearings and chances and second hearings and chances and rarely are cases settled the first time rarely are cases settled the first time around- you can always appeal- it around- you can always appeal- it just might take 3-5 years to hear just might take 3-5 years to hear your appeal.your appeal.

How involved are federal How involved are federal judges?judges?

Judicial philosophy of judges helps shape Judicial philosophy of judges helps shape public policypublic policy

Judicial restraint- philosophy that judges Judicial restraint- philosophy that judges should only interpret Constitution according should only interpret Constitution according to how former cases were ruled on- example to how former cases were ruled on- example Roe Vs. Wade- legality of AbortionRoe Vs. Wade- legality of Abortion

Judicial Activism- philosophy that judges Judicial Activism- philosophy that judges should be active in helping make laws to should be active in helping make laws to better people’s lives- example Civil Rights better people’s lives- example Civil Rights cases- Brown vs. Board of Topeka, Kansascases- Brown vs. Board of Topeka, Kansas

The Supreme CourtThe Supreme Court

Highest court of the land- last resortHighest court of the land- last resort Power of judicial review (marbury v. Power of judicial review (marbury v.

madison)madison) Power to interpretPower to interpret Power to overrulePower to overrule Receives most cases from Court of Receives most cases from Court of

Appeals and State Supreme CourtsAppeals and State Supreme Courts

How do they get casesHow do they get cases 1000’s of requests- few granted (80-90 1000’s of requests- few granted (80-90

cases a year)cases a year) Rule of four- in order for the court Rule of four- in order for the court

to decide a case 4 justices must to decide a case 4 justices must agree to do so (deny: lack of federal agree to do so (deny: lack of federal issue, party lacks standing, court issue, party lacks standing, court agrees w/lower court, political hot agrees w/lower court, political hot potato)potato)

Writ of certiorari- filing of a petition Writ of certiorari- filing of a petition to the lower courts asking for the to the lower courts asking for the case to be sent up to the Supreme case to be sent up to the Supreme CourtCourt

Supreme Court at workSupreme Court at work Can be decided by judges from attorney’s Can be decided by judges from attorney’s

briefs- briefs- per curiamper curiam Terms begin on first Monday in October- Terms begin on first Monday in October-

until end of Juneuntil end of June Cases heard from Mon-Thurs (usually 6 Cases heard from Mon-Thurs (usually 6

justices are on bench)justices are on bench) Before oral arguments- justices read Before oral arguments- justices read

attorney’s briefs (attorney’s briefs (amicus curiae- friend amicus curiae- friend of court briefs)of court briefs)

Hear only 30 minutes from both sidesHear only 30 minutes from both sides Friday- Justices discuss cases (simple Friday- Justices discuss cases (simple

majority needed for decisions- in case of majority needed for decisions- in case of tie- previous court decisions standtie- previous court decisions stand

How does the Supreme How does the Supreme Court make decisions?Court make decisions?

RestraintRestraint ActivismActivism Political issues (hot button topics)Political issues (hot button topics) PersonalPersonal

Judicial Activism vs. Judicial Activism vs. Judicial RestraintJudicial Restraint

Judicial Activism- that courts should take Judicial Activism- that courts should take an active role in solving social, economic an active role in solving social, economic and political problemsand political problems

Act as guardian of the peopleAct as guardian of the people ExamplesExamples

Requiring states to provide legal aid to poorRequiring states to provide legal aid to poor Prison modernizationPrison modernization Requiring states to educate illegal immigrantsRequiring states to educate illegal immigrants Struck down line item veto (Clinton v. NY 1998)Struck down line item veto (Clinton v. NY 1998) Struck down Florida recount (Bush V. Gore Struck down Florida recount (Bush V. Gore

2000)2000) Struck down state death penalties for mentally Struck down state death penalties for mentally

retarded (Atkins V. Virginia (2002)retarded (Atkins V. Virginia (2002)

Judicial RestraintJudicial Restraint

Philosophy that the courts should Philosophy that the courts should allow states and the other two allow states and the other two branches of the federal gov’t to solve branches of the federal gov’t to solve social, economic and political problemssocial, economic and political problems

Should act only in those situations Should act only in those situations where there are clear constitutional where there are clear constitutional questionsquestions

Courts should merely interpret law Courts should merely interpret law rather than make itrather than make it

How this has developed How this has developed over timeover time

Pre 1937- liberals complained of a conservative Pre 1937- liberals complained of a conservative activist Court (struck down minimum wage, activist Court (struck down minimum wage, banning child labor, NRA, AAA)banning child labor, NRA, AAA)

FDR tried to pack supreme court but justices FDR tried to pack supreme court but justices relented and began accepting New Deal relented and began accepting New Deal legislationslegislations

Warren Court (1954-1969)Warren Court (1954-1969)- conservatives - conservatives complain of liberal court (activist)- complain of liberal court (activist)- on issues of rights of the accused (Miranda warnings)on issues of rights of the accused (Miranda warnings) Civil rights- desegregating schools (Brown v. Board)Civil rights- desegregating schools (Brown v. Board) Civil liberties- prohibiting school prayerCivil liberties- prohibiting school prayer

ContinuedContinued Burger Court (1969-1986)- Burger Court (1969-1986)- less active than less active than

Warren court- Roe v. Wade, UC Regents v. BakkeWarren court- Roe v. Wade, UC Regents v. Bakke Rehnquist court- Rehnquist court- (1986-2004)- conservative but (1986-2004)- conservative but

with judicial activismwith judicial activism Overturned Gun Free Zone ActsOverturned Gun Free Zone Acts Overturned Florida Supreme Court decision on Overturned Florida Supreme Court decision on

election 2000election 2000 Overturned CA prop 215- legalized use of Overturned CA prop 215- legalized use of

medicinal marijuanamedicinal marijuana Current Court Roberts (2005- present)- Current Court Roberts (2005- present)-

conservative but more active as it deals with conservative but more active as it deals with issues on 1issues on 1stst amendment issues, Abortion, amendment issues, Abortion, foreclosures, Affordable Health Care, DOMA, foreclosures, Affordable Health Care, DOMA, Same Sex MarriageSame Sex Marriage

Restraints on Judicial Restraints on Judicial powerpower

Can only make decisions- cannot enforce themCan only make decisions- cannot enforce them Cases must come to themCases must come to them President appoints judgesPresident appoints judges Congress can confirm, impeach and remove, increase Congress can confirm, impeach and remove, increase

or decrease size of courts, pass constitutional or decrease size of courts, pass constitutional amendments (14amendments (14thth amendment overturned Dred Scott amendment overturned Dred Scott decision), repass laws, determine jurisdiction of decision), repass laws, determine jurisdiction of courtscourts

Stare decisis- follow the precedent of prior court Stare decisis- follow the precedent of prior court decisionsdecisions

Existing lawsExisting laws ConstitutionConstitution Public opinion- can reflect the changes of the timesPublic opinion- can reflect the changes of the times

Current make up of Supreme Court-what Current make up of Supreme Court-what do you see?do you see?

ConservativesConservatives John Roberts, Chief JusticeJohn Roberts, Chief Justice – age 55, appointed by George W. Bush – age 55, appointed by George W. Bush

in 2005 and is generally considered to be a conservative. in 2005 and is generally considered to be a conservative. Antonin Scalia, Associate JusticeAntonin Scalia, Associate Justice – age 74 appointed by Ronald – age 74 appointed by Ronald

Reagan in 1986 and is staunchly on the conservative side. Reagan in 1986 and is staunchly on the conservative side. Clarence Thomas, Associate JusticeClarence Thomas, Associate Justice – age 62, appointed by George – age 62, appointed by George

H. W. Bush in 1991 and is consistently on the conservative side. H. W. Bush in 1991 and is consistently on the conservative side. Samuel Alito, Associate JusticeSamuel Alito, Associate Justice – age 50, appointed by George W. – age 50, appointed by George W.

Bush in 2006 and is consistently on the conservative side. Bush in 2006 and is consistently on the conservative side. Sonia Sotomayor, Associate Justice- age 56Sonia Sotomayor, Associate Justice- age 56- appointed by Barack - appointed by Barack

Obama- though nominated by liberal seems to be conservative as of Obama- though nominated by liberal seems to be conservative as of now. 1now. 1stst Latina on SC. Latina on SC.

LiberalsLiberals Elena Kagan- Elena Kagan- 41 years old- appointed by Barack Obama in 2010- she 41 years old- appointed by Barack Obama in 2010- she

is the most recent addition to the supreme court, her views seem to is the most recent addition to the supreme court, her views seem to sway Liberal- with her addition first time court has had 3 women sway Liberal- with her addition first time court has had 3 women sitting on supreme courtsitting on supreme court

Ruth Bader Ginsburg, Associate JusticeRuth Bader Ginsburg, Associate Justice – age 77, appointed by Bill – age 77, appointed by Bill Clinton in 1993, a liberal ideologue from the get-go. Clinton in 1993, a liberal ideologue from the get-go.

Steven Breyer, Associate JusticeSteven Breyer, Associate Justice – age 71, appointed by Bill Clinton – age 71, appointed by Bill Clinton in 1994, another liberal as we might expect coming from Clinton. in 1994, another liberal as we might expect coming from Clinton.

Swing/moderate VoteSwing/moderate Vote Anthony Kennedy, Associate JusticeAnthony Kennedy, Associate Justice – age 73, appointed by Ronald – age 73, appointed by Ronald

Reagan in 1988, who was thought to be mildly conservative at the Reagan in 1988, who was thought to be mildly conservative at the time, but most often leans to the liberal side as time has gone on. time, but most often leans to the liberal side as time has gone on.

Video on Antonin ScaliaVideo on Antonin Scalia

http://www.cbsnews.com/video/http://www.cbsnews.com/video/watch/?id=4448191nwatch/?id=4448191n