chapter sixteen the judiciary. organization copyright © houghton mifflin company. all rights...

Chapter Sixteen

The Judiciary

Organization

Copyright © Houghton Mifflin Company. All rights reserved. 16 | 2

Civil Law and Criminal Law

• A private party files the lawsuit as the plaintiff.

• Burden of Plaintiff, but can be shifted to Defendant

• ‘For the Plaintiff’ or ‘For the Defendant’ by a preponderance of the evidence

• Remedy is Compensation


• The state, representing the people, prosecutes the case.

• Presumption of Innocence; burden of proof is on the state

• ‘Guilty or Not Guilty’ beyond a reasonable doubt

• Remedy is Punishment

Article III, Section 1

Which branch of government is given the power to establish lower federal courts?

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.

Why do you think this is the case?



District and Circuit (Appellate) Courts

Administrative Office of the United States Courts (January 1983).

Selection


Back row: Alito, Ginsburg, Breyer, Sotomayor. Front row: Kennedy, Stevens, Chief Justice Roberts, Scalia, Thomas.


Article II, Section 2

(The President) shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States.


Selecting Judges

• Tradition of Senatorial Courtesy– Potential Nominees for federal courts are

first recommended by the National Bar Association

– They are then reviewed by senators from the state

– Senators ‘blue slip’ the nominee

Is this Constitutional?


Selecting Judges• Presidents seek judicial appointees who

share their political ideologies– ‘Litmus test’– delays in securing Senate confirmations– But only 29 of 145 Supreme Court nominees

have been rejected


Constitutional Interpretation

• Strict Construction: judges are bound by the wording of the Constitution– most strict constructionists tend to be

conservative Republicans

• Activist: judges should look to the underlying principles and intentions of the founders– most activists tend to be liberal Democrats

Current Supreme CourtGinsberg (Clinton, 1993): very liberal

Stevens (Ford, 1975): consistently liberal

Breyer (Clinton, 1994): consistently liberal

Sotomayor (Obama, 2009): centrist but more likely to vote liberal

Kennedy: the swing vote, but considered a conservative

Alito (Bush, 1990): consistently conservative

Roberts (Bush, 2005): consistently conservative

Scalia (Reagan, 1986): extremely conservative

Thomas (Bush, 1991): : extremely conservative

The current court is considered conservative

The most likely justices to leave the court during Obama's administration are Stevens and Ginsburg.



http://www.youtube.com/watch?v=gasBJMNUiHg

Selecting Judges


Robert Bork, 1987Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy... President Reagan is our president. But he should not be able to impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.

-Senator Ted Kennedy, 1987

Harriet Miers, 2005


• Bachelor’s in Math, 1965• Law Degree from SMU, 1968• Clerked for a Judge, 1970• Attorney for GW Bush, 1976• Member of Dallas City Council,

1990 • Ran Bush’s Campaign for

Governor of Texas, 1994• Chair of Texas Lottery, 1995• Deputy Chief of Staff to

President, 2001• Nominated to Supreme Court,

2005

Article III, Section 1

What is the term of a Supreme Court justice?

The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office

Why do you think this is their term?


Jurisdiction


Article III, Section 2List three examples of cases that would fall under the

judicial power of the Supreme Court.

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;

--to all cases affecting ambassadors, other public ministers and consuls;--to all cases of admiralty and maritime jurisdiction;-

-to controversies to which the United States shall be a party;

--to controversies between two or more states;--between a state and citizens of another state;

--between citizens of different states;

--between citizens of the same state claiming lands under grants of different states,

and between a state, or the citizens thereof, and foreign states, citizens or subjects.


Article III, Section 2List three examples of cases that would fall under the

judicial power of the Supreme Court.

All cases dealing with• Federal Questions

– The Constitution or Federal laws– Treaties– Ambassadors, other public ministers and consuls– Admiralty and maritime jurisdiction– The United States government

• Diversity Cases– Two or more states– A state and citizens of another state– Citizens of different states– citizens of the same state over property in a different state– a state or citizen and foreign states or citizens



Federal Cases

• Federal question cases: involving the U.S. Constitution, federal law, or treaties

• Diversity cases: involving different states, or citizens of different states

Article III, Section 2What is “Original Jurisdiction”?

The ability and authority to hear and decide cases for the first time based on hearing testimony and viewing evidence

In contrast to hearing a case “on appeal” after a verdict has been rendered.


Article III, Section 2Under what circumstances does the Supreme

Court have “original jurisdiction”?

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction.

In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.


Article III, Section 2Under what circumstances does the Supreme

Court have “original jurisdiction”?

In all cases dealing with• ambassadors, other public ministers and consuls• a state government

In all the other cases • the Supreme Court shall have appellate

jurisdiction


Florida Court System


Procedure


• The Supreme Court Term begins the first Monday in October

• The Court divides its time into sessions of approximately four weeks. – “Sittings," two-week periods during which the Justices hear arguments

– “Recesses," the alternating two weeks where they hold conferences and write opinions.

– The Justices may hear as many as 24 cases each sitting.

• The Justices actively hear arguments from October until the end of April or early May using this rotating schedule

• During May and June, the Justices announce decisions• From July through September, they read petitions for

writs of certiorari and discuss cases for the next term.


Procedure

• Standing

• Writ of cert– 7000 petitions

– 100 granted

• Expenses– In forma pauperis

– Fee shifting

• Political Questions


Procedure


Standing to Sue

• There must be a real controversy between adversaries

• Harm must be demonstrated– Actual– Personal

– Class actions

• Sovereign immunity


Writs of Certiorari• Most cases arrive through a writ of

certiorari• Requires agreement of four justices to

hear the case– Involves significant federal or constitutional

question– Involves conflicting decisions by circuit courts– Involves Constitutional interpretation by one of

the highest state courts

• Brief– Stare Decisis

• Precedent

– Remedy

• Amicus Curiae– ‘Friend of the Court’

• Oral Argument– Plaintiff– Defendant– Inquiry by Justices– Closing Arguments– Rebuttal

16 | 32

Procedure


The Supreme Court in Action

• Lawyers submit briefs that set forth the facts of the case, summarizes the lower court decision, gives the argument of their side of the case citing appropriate precedent, and suggests remedy

• Amicus Curiae briefs are submitted• Oral arguments are given by lawyers after

briefs are submitted• Justices then question the attorneys

Inquisitorial and Adversarial Legal Systems


Adversarial Systems• In the ADVERSARIAL SYSTEM, two or more

opposing parties gather evidence • The parties then present the evidence, and their

arguments, to a judge or jury. • The judge or jury knows nothing of the litigation

until the parties present their cases to the decision maker.

• The judge acts as a referee on points of law.

• The judge or jury determine both the verdict and the remedy.


My Cousin Vinny


The Inquisitorial System

• In the INQUISITORIAL system, the presiding judge is not a passive recipient of information.

• The judge actively steers the search for evidence and questions the witnesses

• Attorneys play a more defensive role, suggesting arguments and precedents and answering the judge’s questions.

• The judge determines the verdict and the remedy.




• The goal of both the adversarial system and the inquisitorial system is to find the truth.

• The adversarial system – seeks the truth by pitting the parties against each other in the hope that

competition will reveal it– the adversarial system places a premium on the individual rights of the

accused

• The inquisitorial system – seeks the truth by questioning those most familiar with the events in

dispute

– The inquisitorial systems places the rights of the accused secondary to the search for truth.



• While lower courts tend to be Adversarial, the Supreme Court is more Inquisitorial.

• After opening arguments, Justices question and cross-examine the attorneys

THE FACTS• Brian Latham was arrested for murder, and given his Miranda rights

by deputy Sherriff Ken Lakos.• Latham requested an attorney.• Latham met with his attorney, Douglas Wambaugh, who advised him

to keep silent.• After Wambaugh left, Lakos began a conversation with Latham.• Knowing Latham was a devout Catholic, Lakos asked Latham where

the body of the victim was so that she could receive last rites from a priest.

• Latham told Lakos where to find the body.• District Attorney Don Littleton prosecuted and obtained a conviction

and death penalty based on Latham’s implicit confession• Wambaugh appealed to the Supreme Court.


Picket Fences

THE LAW (Legal Precedent)• Miranda v. Arizona, 1966, suspects must be

informed of their right to counsel and their right to remain silent before interrogation.

• Brewer v. Williams, 1977, a person is entitled to the help of a lawyer as soon as he is arrested

• Edwards v. Arizona, 1981, interrogation must stop when a suspect invokes the right to counsel.

• Minnick v. Mississippi, 1990, when counsel is requested, officials may not reinitiate interrogation without counsel present whether or not the accused has already consulted with his attorney.


Picket Fences

Supreme Court•Seven justices elected statewide to 10-year terms

•Senior Justice sits as Chief Justice

Court of AppealsJudges elected district wide to six-year terms

First court of appeal from Circuit Court

Circuit Court•Judges elected countywide to six-year terms

•Jurisdiction includes felony crimes, contracts, and any civil matter which significantly involves the state.

•First court of appeal from municipal courts

Municipal Court•Judges chosen under local laws

•Jurisdiction includes county and municipal laws, personal injury, family law, juvenile delinquency, probate, traffic, small claims, landlord-tenant issues, and

misdemeanor criminal law.

Wisconsin Court System



Picket Fences

May It Please the Court


Kinds of Court Opinions

• Per curiam: brief and unsigned

• Opinion of the court: majority opinion

• Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning

• Dissenting opinion: minority opinion


Development of the Federal Courts

• Most Founders probably expected judicial review but did not expect the federal courts to play such a large role in policy-making

• But the federal judiciary evolved toward judicial activism, shaped by political, economic, and ideological forces


Judicial Review

• Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions

• It is the chief judicial weapon in the checks and balances system


1789 to 1865

• Two issues: Federal power and Slavery


• The Supreme Court has the power to declare an act of congress unconstitutional.

Judicial ReviewMarbury v. Madison (1803)

THE FACTS• President John Adams was defeated by Thomas Jefferson in the

election of 1800.• Fearing Jefferson would appoint ‘strict constructionist’ (states’ rights)

judges, Adams packed the court with 59 ‘midnight’ appointments• The Adams administration delivered all but 17 of these.• New Secretary of State James Madison refused to deliver the

remaining 17.• William Marbury filed suit against Madison for a Writ of Mandamus

forcing him to appoint Marbury to a judicial seat.• Marbury filed his lawsuit in the Supreme Court under the Judiciary

Act of 1789 giving the Supreme Court original jurisdiction on such Writs.


Marbury v. Madison

THE DECISION• Madison was obligated to respect appointments by the previous

administration. • Federal Courts do have the power to issue Writs of Mandamus to

compel Federal officials to act• BUT . . . .• The Supreme Court could not issue the Writ in this case because the

Judiciary Act of 1789 was UNCONSTITUTIONAL– The law states the Supreme Court has original jurisdiction on

Writs of Mandamus– Article III of the Constitution does not explicitly list Writs of

Mandamus as the original jurisdiction of the Supreme Court– The Supreme Court only has appellate jurisdiction in these cases.– Congress cannot change the Constitution without amending it.


Marbury v. Madison


• Marbury v. Madison

“It is emphatically the province and duty of the judiciary to say what the law is, and a law repugnant to the Constitution is void.”

-John Marshall

Chief Justice of the Supreme Court, 1801-1835

Judicial Review


• Federal law is supreme over state law, and the power granted to the federal government should be interpreted broadly

Judicial ReviewMcCulloch v. Maryland (1819)

THE FACTS• The US congress passed a law in 1816 authorizing the creation of a

National Bank.• The state of Maryland pass a law to tax all transactions of the

National Bank branch located in Maryland.• James McCulloch, head of the Baltimore branch of the National Bank

refused to pay the tax.• The state of Maryland filed in state court to compel McCulloch to pay.• On appeal, the Maryland state Supreme Court held for Maryland

because the Constitution did not specifically state that the Federal Government was authorized to charter a bank, the Bank of the United States was unconstitutional.

• McCulloch appealed to the US Supreme Court


McCulloch v. Maryland

THE DECISION• Congress has the power to charter the bank• The US Constitution is a social contract between all the citizens, and

therefore supersedes state sovereignty• The Federal government, though limited, is supreme within its sphere

of action• Therefore, the US Supreme Court could rule on the Constitutionality of

state laws• Article I, section 8 explicitly gives the US congress the power to tax

and spend• The ‘Necessary and Proper’ clause of the Constitution grants to

Congress implied powers for implementing the Constitution's express powers as long as it is not explicitly forbidden by the Constitution

• Therefore, State action may not impede valid constitutional exercises of power by the Federal government.


McCulloch v. Maryland


Would Marshall have been considered an activist or a strict constructionist?

Judicial Review

“[Blacks] must be regarded as beings of an inferior order, and altogether unfit to associate with the white race, and having no rights which the white man was bound to respect..”

-Roger Taney

Chief Justice of the Supreme Court, 1836-1864


Judicial ReviewDred Scott v Sanford, 1857

THE FACTS• Dred Scott, a slave from Missouri, was taken by his master to

Minnesota, a federal territory where slavery was illegal.• Scott filed a lawsuit in federal court claiming that he was now free.

THE DECISION• The enumerated powers of the Constitution do not include the

regulation of slavery• All Federal laws prohibiting slavery were therefore unconstitutional• Slaves are not citizens, they are property. Therefore

– they cannot file lawsuits

– And cannot be taken from their masters without due process and adequate compensation

• Blacks are not citizens of the US and cannot ever be citizens


Dred Scott

Justice McLean’s Dissent• Article I, section 9 does imply

federal power to regulate slavery• There is no Constitutional basis

for the claim that blacks cannot be citizens.

• At the time of the ratification of the Constitution, black men could vote in ten of the thirteen states.

• This fact made them citizens not only of their states but of the United States.


Dred Scott


Judicial ReviewUS v Amistad, 1841

•Pedro Montez and Jose Ruiz purchase 53 Amistads at auction in Havana.•Evidence: Dated Bill of Sale

•Ruiz and Montez deliver the Amistads to the cargo ship Amistad for carriage to a plantation near Puerto Principe in Cuba.

•Evidence: Personal Testimony and dated Bill of Receipt•Cinque, Grabeau, Burnah, and Konomah organize a revolt, capture the ship, and kill the entire crew with the exception of Ruiz, Montez, and the Captain’s personal slave, Antonio.

•Evidence: Personal Testimony•The Amistad is spotted and boarded off Long Island, NY, by the USS Washington commanded by Capt. Thomas Gedney. The Amistad is escorted it to New London, CT. The Amistads are taken to the New Haven jail.

•Evidence: Personal Testimony, Arrest Records, Captain's Log



1808 Federal LawSlave importation illegal(interstate trade still legal)

1788 Connecticut LawSlavery abolished

1819 Federal Law Africans rescued from slave ships are to be returned to Africa



Pinckney Treaty between US and Spain, 1795Article VI

Agreement to protect each others vessels in territorial waters Article VII

Agreement to extradite criminals to stand trial Article IX

Agreement to return property seized by piracy or mutiny Article X

Agreement to return property lost by shipwreck or storm Article XX

Agreement to allow all parties full access to other’s courts of law

Treaty Abolishing International Slave Trade 1817Britain, US, France, Portugal, and Spain


US v Amistad, 1841



Montez and Ruiz file for return of their property. Gedney et all file for salvage claims on the total property value of the Amistad, including all slaves. The Spanish Ambassador Calderon de la Barca makes a formal request to the United States Department of State that the Africans be extradited to Spain to stand trial for piracy, mutiny, and murder. United States Secretary of State John Forsyth, at the request of President Van Buren, files on behalf of Spain represented by District Attorney William Holabird in court. The Amistad Committee (The Anti-Slavery Society) of Lewis Tappan, Josiah Gibbs, and Roger Baldwin filed charges of assault, kidnapping, and false imprisonment against Ruiz and Montez, and for habeas corpus, requesting freedom for the Amistads and their return to Africa. The abolitionists

THE DECISION• The Circuit Court ruled that it lacked jurisdiction as

the issue took place on a Spanish ship in Spanish waters, and therefore the case should be extradited to Spain.

• The Amistads appealed• The District Court ruled in favor of the Amistads,

stating that there were not property the moment they set foot in Connecticut, and that therefore they should be returned to Africa under the 1819 Federa. Law.

• The US appealed to the Supreme Court


US v Amistad


US v Amistad

THE DECISION• The Africans in question were never legal property. • They were not criminals, but "unlawfully kidnapped, and

forcibly and wrongfully carried on board a slave vessel".• When Amistad came US waters, however, the Court

believed it to be in the possession of the Africans on board. Therefore, Federal law did not apply, and the President was not required to return the Amistads to Africa.

• The Supreme Court ruled that the Amistad’s were born free, and therefore free human beings who had the right of self-defense against the crime of being kidnapped, but that the US had no obligation to return them if they didn’t want to go.


US v Amistad

THE DECISION• “ Upon the whole, our opinion is, that the decree of the

district court ought to be affirmed, except so far as it directs the negroes to be delivered to the president, to be transported to Africa, in pursuance of the Federal act of the 3rd of March 1819; and as to this, it ought to be reversed: and that the said negroes be declared to be free, and be dismissed from the custody of the court, and go without delay.[


US v Amistad


1865 to 1936

• The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business

• The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states


1936 to Present

• The Court establishes tradition of deferring to the legislature in economic regulation cases

• The Warren Court provided a liberal protection of rights and liberties against government trespass

Controversies


Trouble Between the Branches?



Arguments for Judicial Activism

• Courts should correct injustices when other branches or state governments refuse to do so

• Courts are the last resort for those without the power or influence to gain new laws


Arguments Against Judicial Activism

• Judges lack expertise in designing and managing complex institutions

• Initiatives require balancing policy priorities and allocating public revenues

• Courts are not accountable because judges are not elected


Checks on Judicial Power

• Judges have no enforcement mechanisms• Confirmation and impeachment proceedings• Changing the number of judges• Revising legislation• Amending the Constitution• Altering jurisdiction• Restricting remedies


Public Opinion and the Courts

• Defying public opinion frontally may be dangerous to the legitimacy of the Supreme Court, especially elite opinion

• Opinion in realigning eras may energize court

• Public confidence in the Supreme Court since 1966 has varied with popular support for the government generally

• What constitutes treason in this section 3? • What is required to convict a person of treason? • Why do you think Treason is the only specific crime that is mentioned

in the Constitution?

Section 3.• Treason against the United States, shall consist only in levying war

against them, or in adhering to their enemies, giving them aid and comfort. No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.

• The Congress shall have power to declare the punishment of treason, but no attainder of treason shall work corruption of blood, or forfeiture except during the life of the person attainted.


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