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The Federal Judiciary
• There is hardly a political question in the United States which does not sooner or later turn into a judicial one
•Alexis de Tocqueville
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The Federal Judiciary
•Why are our courts so influential?• Judicial Review–The power of the courts to declare
state or federal laws in violation of the Constitution (Marbury v. Madison – 1803)
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The Federal Judiciary
• Read Article III of the Constitution• Who creates the “inferior courts” below the Supreme
Court?• What is the term of office for federal judges? • Under what conditions do they remain in office?• What are the constitutional qualifications to become a
federal judge?• Which cases go straight to the Supreme Court (Original
Jurisdiction)?• What crime is defined in Article III?
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Hamilton in Federalist 78
• The least dangerous of the three branches
• The judiciary, on the contrary, has no influence over either the sword or the purse
• The interpretation of the laws is the proper and peculiar province of the courts
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The Judiciary Act (1789)
• Created our current 3-tiered structure of the federal courts
• The Supreme Court• Circuit Courts (aka Courts of Appeal)
• District Courts
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Marbury v. Madison (1803)
• Chief Justice John Marshall wrote the 5-0 decision declaring a portion of the Judiciary Act in violation of the Constitution
• Established the courts as the interpreters of the law (JUDICIAL REVIEW)
• Was not used again until Scott v. Sanford in 1857 – The Dred Scott Decision
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Judicial Activism vs. Judicial Restraint
• Critics of judicial review say judges sometimes make decisions reflecting their own policy preferences
• This is called JUDICIAL ACTIVISM• They believe that judges should always look to
the “original intent” of the founders when making decisions – A strict construction of the Constitution
• This is called JUDICIAL RESTRAINT
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Judicial Activism vs. Judicial Restraint
• Others argue that the founders purposely were vague in their wording
• They did not have a single common intent and even if they did we should not be bound by it
• The world has changed in ways the founders could not have envisioned
• The Constitution should change to meet changing times (a “living” constitution)
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The U.S. District Courts
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The Circuit Courts
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U.S. District Courts
• Each state has at least 1; 4 in Texas• The basic trial courts in the federal system (with
juries)• Civil Cases– Lawsuits, one person sues another or an organization
• Criminal Cases– The government prosecutes someone for violating a
federal criminal statute (law)– ***Only about 10% of criminal cases (most are in state
courts)
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U.S. District Courts
• Within the Justice Department a U.S. Attorney is the chief federal prosecutor in each of the 94 districts
• Appointed by the President and confirmed by the Senate (majority vote)
• Plaintiff – in civil cases, the party initiating the lawsuit; in criminal cases, the accuser
• Defendant – in civil cases, the person having the lawsuit brought against them; in criminal cases, the accused
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Burden of Proof
• In a civil case, the plaintiff is required to prove “a preponderance of the evidence” in their favor (the needle tilts in their direction)
• In a criminal case, the burden is much higher• “Beyond a reasonable doubt”– Does not mean no doubt whatsoever– Convinced the defendant is guilty (not
necessarily 100%)– If not convinced, reasonable doubt exists
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The Circuit Courts (The Courts of Appeal)
• There are 12 regions, each served by a circuit court• There is a 13th Court of Appeal for the Federal
Circuit located in Washington, D.C.• Each court has a panel of judges that preside over
cases (no juries)• Has appellate jurisdiction• The vast majority of federal cases end in one of the
circuit courts and do NOT make it to the Supreme Court
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The Circuit Courts
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The Supreme Court
• Congress establishes the size of the court which is currently 9 (since 1869)
• Judges on the Supreme Court are called JUSTICES
• One Chief Justice • 8 Associate Justices
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Chief Justice John Roberts
Appointed by President George W. Bush
2005 At age 50 Harvard Law
School 78-22
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Antonin Scalia
Appointed by President Ronald Reagan
1986 At age 50 Harvard Law
School 98-0
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Anthony Kennedy
Appointed by President Reagan
1988 At age 52 Harvard Law
School 97-0
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Clarence Thomas Appointed by
President George H.W. Bush
1991 At age 43 Yale Law
School 52-48
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The Thomas Hearings
A former associate and Oklahoma law professor, Anita Hill, accused Thomas of sexual harassment
An all-male Senate Judiciary Committee clumsily dealt with the issues
Thomas was confirmed 52-48
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Ruth Bader Ginsberg
Appointed by President Clinton
1993 At age 60 Columbia Law 97-3
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Stephen Breyer
Appointed by President Clinton
1994 At age 56 Harvard Law
School 87-9
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Samuel A. Alito Jr.
Appointed by President George W. Bush
2006 At age 55 Yale Law School 58-42
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Sonia Sotomayor
Appointed by President Obama
2009 At age 55 Yale Law School 68-31
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Elena Kagan
Appointed by President Obama
2010 At age 50 Harvard Law
School 63-37
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The Supreme Court
It is the court of LAST RESORT Has final say on questions concerning the
meaning of the Constitution Mostly Appellate Jurisdiction (from State
Supreme Courts and the Circuit Courts) Original Jurisdiction
• Cases involving a State• Cases dealing with
ambassadors/diplomats
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The Supreme Court
Supreme Court decisions carry the weight of law
Only 2 ways to reverse/change a Supreme Court decision• Add an amendment to the Constitution• The Supreme Court issues a different
decision in a later case (Plessy v. Ferguson (1896)…Brown v. Board of Education (1954))
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How Cases Reach the Court
10,000 cases a year appealed to the Court
The Court only decides about 75-80 cases a year
The Rule of Four• 4 of the 9 Justices must agree in order to
accept an appeal
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How Cases Reach the Court
The Writ of Certiorari (Cert.)• Sersh-uh-rare-ee• An order from the Supreme Court to a
lower court to send up the records in a particular case so the Court can review it
• To appeal a case to the Court, a plaintiff or defendant must apply for a writ of certiorari
The court “grants cert.” or “denies cert.”
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How the Court Operates
First Monday in October through June or July
They consider cases in two week cycles (2 weeks of listening to arguments, followed by a period where they make decisions)
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How the Court Operates
Briefs – Written documents filed with the court before the oral arguments begin (Plaintiff and Defendant lawyers)
Put forth the written arguments of both sides in the case
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How the Court Operates
Amicus Curiae Briefs Translates to “Friend of the Court” ***Briefs written by interested parties
that are NOT directly part of the case The Court requests them or approves
them Example – NRA files a brief in a case
dealing with gun control laws
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How the Court Operates
Lawyers provide ORAL ARGUMENTS 30 minute presentations to the 9
Justices Stand at a podium White light after 25 minutes Red light after 30 Justices often interrupt with
questions of their own
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The Solicitor General
Part of the Justice DepartmentRepresents the U.S. Government
if involved in a Supreme Court case
Determines the government’s argument as well as what cases to appeal to the Court
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Solicitor General
Donald Verrilli (replaced Elena Kagan after she was nominated to the Supreme Court)
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Discussing Oral Arguments and Briefs
Done privately by the 9 Justices Chief Justice presides and speaks
first Each Associate summarizes their
views in order of seniority Then debate begins 1/3 of all decisions are unanimous 8-1, 7-2, 6-3, 5-4
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Opinions
Majority OpinionConcurring Opinion
Dissenting Opinion
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Majority Opinion
Written reasoning explaining why the majority ruled the way that they did
Chief Justice determines who will write this if part of the majority
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Concurring Opinion
When a member of the majority disagrees with the majority opinion
A different opinion giving an alternative line of reasoning
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Dissenting Opinion
Written to express the views of the minority in a case
Dissenting opinions can later become the view of the majority (when a decision is reversed at a later date)
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Relevant Vocab
Senatorial Courtesy• When a vacancy opens on a federal court,
The President consults the senators from the state where the vacancy occurs
Stare Decisis • Latin for “to stand by things decided”• The Court’s tendency to respect and
adhere to precedent (previous decisions)• Let the lower court decision stand