GOVT 2305

The JudiciaryDefinition and Historical Background

This begins a discussion of the last of the three institutions of

American and Texas Government.

- Judiciary.- United States Federal Courts.

- Texas Judicial System.

Blog Posts

AppealsCommon LawThe Judiciary

Judicial Elections Judicial Review Texas Judiciary

Trials

To get an idea of what we will cover, you may wish to look at

these:

Article 3 of the U.S. Constitution and

Article 5 of the Texas Constitution

Let’s review a few basic facts about the judiciary.

The United States Judiciary is composed of one Supreme Court,

11 Courts of Appeals, and 94 District Courts, which also include

bankruptcy courts.

The Texas Judiciary is headed by two top courts – The Texas

Supreme Court and the Texas Court of Criminal Appeals. Beneath

these are 14 Courts of Appeals, district courts, county courts,

municipal courts, and justice of the peace courts.

The judiciary is unique among the three branches since its members - on the national level - are appointed for

lifetime terms.

The President makes the appointment and the Senate confirms it, though confirmation is not a guarantee.

Judges in Texas, however, are elected. Appellate and Supreme Court judges

are elected in overlapping 6 year partisan elections.

This makes them accountable to the general public, but this can make them

subject to majoritarian pressures to act against minorities.

Judicial appointments were meant to ensure the judges would have

the “peculiar qualifications” necessary to hold the office. They are expected to know a few things

about the law.

In order to ensue that judges are not controlled by whatever entity is appointing them to office, they

are given lifetime tenure.

This is the source of their independence.

While the legislative and executive branches are accountable to the

electorate, the national judiciary is subject to the law and the Constitution

as they interpret it.

This checks the majority – the judiciary is the institution most able to secure

the rights of the minority.

Because they are appointed, the judiciary is not considered to be a political branch. It does not make

decisions subject to public approval. It generally refuses to

rule on political questions, leaving those to the legislative and

executive branches.

The courts are fully detached from the general public, yet public

opinion on the court tends to be higher than of the elected

institutions.

Obviously, Texas is different.

We will explore this issue later.

The Functions of the Judiciary

DefinitionJudiciary:

1611, from L. judiciarius "of or belonging to a court of justice," from judicium

"judgment," from judicem (see judge). The noun meaning "a body of judges, judges

collectively" is from 1802.

- online etymology dictionary

A Basic Function of the Judiciary

Adjudication: The legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning

set forth by opposing parties or litigants to come to a decision which determines

rights and obligations between the parties involved. - Wikipedia

In a broader sense, the Judiciary in the American governing system does these three things:

1 – it provides a forum for the reconciliation of disputes in society2 – it interprets statutory and constitutional law3 – checks the legislative and executive branches

Taking each in turn

1

The Judiciary provides a forum for the arbitration of

disputes in society.

Three ways to categorize disputes

Criminal and CivilState and Federal Trials and Appeals

A criminal proceeding places a group or a citizen in

a confrontation with the state.

The accusation is made that a law has been violated.

A civil proceeding places the individuals or groups in a

confrontation with each other.

Most typically it is argued that a contract has been violated, or a

damage inflicted (tort).

Criminal and Civil proceedings are distinct. Each has its own set of

rules for how to arrive at a decision and determine

punishment.

As with the other two branches, separate legal systems exist on

each level of government.

Disputes involving state laws are handled in state courts, though

lower level disputes are handled in county and city courts.

Disputes involving federal laws are handled in federal courts.

Ultimately all laws have to abide by the U.S. Constitution which means

that disputes from any level of government can ultimately be

heard by the U.S. Supreme Court.

Each level has its own unique judicial system

The Unites States Courts

The Texas Courts

Two (potential) stages in the judicial process:

TrialAppeal

A trial is a matter of factAn appeal is a matter of process

In a trial, evidence is presented to an impartial jury that determines

guilt or innocence.

In an appeal, a panel of judges determines whether the procedure

in the trial was constitutional.

2

Interprets statutory and constitutional law

This occurs in the appellate process

The meaning of statutory legislation is clarified

Clean Water ActEqual Pay Act of 1963

The same is true for constitutional language

“commerce”“necessary and proper”

“speech”“probable cause”

“cruel and unusual”

The precise definition of these words and phrases can be subject

to debate.

3

The judiciary checks the legislative and

executive branches.

Principal Check

Judicial Review

The power to overturn legislation and actions of the executive.

The Constitution would be effectively meaningless without this power residing somewhere.

Judicial Review does not exist in the Constitution.

The power was considered to be dangerous and subject to abuse. The institution with this

power could become tyrannical.

In Federalist #78 Alexander Hamilton argues that the judiciary must have the power of judicial review.

This was the basis of the decision in Marbury v. Madison where the courts claimed the

power for themselves.

Historical Background

The Development of Legal Code and the Courts

We will look at the evolution of two things:

Common LawCourt System

1 - The Common Law

A definition: Law developed by judges through decisions of courts and similar tribunals (called case law), rather than

through legislative statutes or executive action, and to corresponding legal systems that rely on precedential

case law.

2 - The Court System

We will look at the development of a court procedures (due

process, etc) and the gradual development of the courts as

independent institutions.

Common Law

The "common law" was the law that the whole country had in

common, rather than particular tribal laws that might apply

between smaller communities

The development of common law and a court system based on due

process under their control helped early British Kings consolidate

control over Britain.

To better understand common law, let’s compare it to two other

categories of law:

Statutory LawConstitutional Law

The Common Law is Organic Law

Develops from the ground up.

Statutory Law

Written law set down by a legislature

Constitutional Law

A body of law which establishes governing institutions, and the

distribution and exercise of government power.

Legal code has been built up over centuries. American legal

code was built up from, and includes, British code

Important related concepts:

Stare DecisisPrecedence

Stare Decisis

“the legal principle by which judges are obliged to obey the set-up precedents

established by prior decisions. The words originate from the Latin phrase Stare

decisis et non quieta movere, “’Maintain what has been decided and do not alter

that which has been established’". – Wikipedia.

Precedence

In common law legal systems, a precedent or authority is a legal

case establishing a principle or rule that a court or other judicial body utilizes when deciding subsequent cases with similar issues or facts. –

Wikipedia.

In the American System, Constitutional Law is supreme. Any disputes is resolved in favor of the Constitution since it is argued to

more reflect the will of the people. The Constitution was ratification by the states, statutory law was

not.

Alfred the Great871 - 899

The Doom Book: An early compilation of laws. A mixture of

Saxon and Mosaic Code

During this time there was little distinction between the legislative, executive, and judicial institutions.

Curia Regis: The Anglo-Saxon kings of England regularly summoned the bishops and great men of the kingdom to a council (Witenagemot), which advised the king and occasionally served as a court of justice. Building upon this foundation, the Norman kings after the Conquest in 1066 developed more effective ways of centralizing royal government. By the end of the eleventh century the king was entrusting business to his Curia, a body of officials appointed from the ranks of the highest noblemen, church leaders, and officers of the royal court. With the king, the Curia Regis administered all of the king's business—financial, legislative, and judicial. From the Curia Regis developed the common-law courts, the Chancery, and even the Parliament. – the free dictionary

The Court of Curia Regis would eventually be divided into various

different courts with unique functions.

Henry II 1154–1189

Replaced trials by ordeal with jury trials.

Due process begins to be recognized.

Also established a variety of courts

Royal MagistrateCourt of King’s Bench

The Royal Magistrate Courts: Allowed court officials, under

authority of the Crown, to adjudicate local disputes.

The Court of King’s Bench: The highest court of law in England during the Middle Ages and the

Renaissance. Originally, it was the principal court for criminal cases and the place to hear disputes

between the citizens and the King.

The king had control over the courts, meaning that the courts

could become instruments of the king’s arbitrary will.

Henry II also established the principle of Habeas Corpus, which

would help limit discretionary power.

Magna Carta (1215) solidified the importance of due process by requiring King John recognize

procedural limits to his judicial powers.

The Due Process of the Law

Clause 36 - In future nothing shall be paid or accepted for the issue of a writ of inquisition of life or limbs.

It shall be given gratis, and not refused.

Clause 38 - In future no official shall place a man on trial upon his

own unsupported statement, without producing credible witnesses to the truth of it.

Clause 39 - No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled,

or deprived of his standing in any other way, nor will we proceed with

force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

Clause 40 - To no one will we sell, to no one deny or

delay right or justice.

Together these clauses establish the right of habeas corpus.

Two British legal commentators who further refined the Common

Law and the role of the courts within the governing system

Edward Coke (1552 – 1634) William Blackstone (1723 – 1780)

Commentaries on the Laws of England

The Court of Star Chamber(1341 (?) – 1641)

A court fully controlled by the monarch.

Prosecuted accusations of seditious libel and political opponents of the monarch

“Its procedure was not according to the Common Law. It dispensed with the

encumbrance of a jury; it could proceed on rumour alone; it could apply torture; it

could inflict any penalty but death. It was thus admirably calculated to be the

support of order against anarchy, or of despotism against individual and national

liberty.” – Luminarium.

“Under James I and Charles I . . . the Star Chamber became the great engine of the

royal tyranny. Hateful and excessive punishments were inflicted on those brought before the court . . . and the

odium which it gathered around it was one of the causes which led to the popular

discontent against Charles I.” – Luminarium.

Example of judiciary controlled by the monarch:

The Trial of William Penn September 1, 1670

A related trial years later:

The Trial of John Peter Zenger August 5, 1735

Jury NullificationSeditious Libel

The English Bill of Rights (1689) listed judicial abuses committed by

James II and established restrictions for future monarchs on

their influence on the judiciary.

- By issuing and causing to be executed a commission under the

great seal for erecting a court called the Court of Commissioners

for Ecclesiastical Causes;

- By prosecutions in the Court of King's Bench for matters and

causes cognizable only in Parliament, and by divers other

arbitrary and illegal courses

- By partial corrupt and unqualified persons have been returned and

served on juries in trials, and particularly divers jurors in trials for high treason which were not

freeholders

- By excessive bail hath been required of persons committed in criminal cases to elude the benefit of the laws made for the liberty of

the subjects;

- excessive fines have been imposed;

- illegal and cruel punishments inflicted;

As a consequence, the judiciary achieved independence from the

executive.

Several grievances listed in the Declaration of Independence

concern George III’s usurpations of colonial judicial power

Grievances

1 - He has obstructed the administration of justice, by

refusing his assent to laws for establishing judiciary powers.

Grievances

2 - He has made judges dependent on his will alone, for the tenure of their offices, and the amount and

payment of their salaries.

Grievances

3 - For protecting them [armed troops], by a mock trial, from

punishment for any murders which they should commit on the inhabitants of these states.

Grievances

4 - For depriving us, in many cases, of the benefits of trial by jury.

Grievances

5 - For transporting us beyond seas, to be tried for pretended

offenses.