judicial review

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Chapter 16 The Judiciary

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The Jurisdiction of the Federal Courts

■ Jurisdiction - the authority of the courts to hear certain cases. ■ Under the Constitution, the federal

courts have jurisdiction in cases involving federal law, treaties, and the interpretation of the Constitution.

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■ Original Jurisdiction - lower courts hear cases for the first time (district court) ■ trial with evidence, and jury option

■ Appellate Jurisdiction - courts hear reviews or appeals of decisions from lower courts (Court of Appeals and Supreme Court)

■ Concurrent Jurisdiction - cases to be tried in either federal or state courts

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■ Federal-question cases – Cases concerning the Constitution, federal laws, or treaties

■ Diversity cases – Cases involving citizens of different states who can bring suit in federal courts

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Figure 16.4 The Jurisdiction of the Federal Courts


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The Structure of the Federal Courts

■ Constitutional Courts - created by Congress under Article III of the Constitution

■ Lower Federal Courts • Constitutional Courts

■ District courts ■ Courts of appeal

• Legislative Court ■ Court of Military Appeals & territorial courts


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Map 16.1 U.S. District and Appellate Courts


Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in the third; Guam and the Northern Mariana Islands are in the ninth. The Court of Appeals for the Federal Circuit, located in Washington, D.C., is a Title 3 court that hears appeals regarding patents, trademarks, international trade, government contracts, and from civil servants who claim they were unjustly discharged. !Source: Administrative Office of the United States Courts (January 1983).

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Structure of the Judicial System■ Supreme Court - the only court actually

created directly by the Constitution ■ Highest Court, Final Authority ■ Has Original and Appellate

Jurisdiction ■ 1869 - Current Size Set (9 Judges, 1

Chief Justice, 8 Associate) ■ Nominated by President, Confirmed

by Senate

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Judicial Selection■ Lower Courts

■ Large number of appointments ■ Handled by Justice Department and

White House Staff ■ Senatorial Courtesy - allowing

individual senators who represent the state to approve/disapprove nominees to District Court

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Judicial Selection■ Supreme Court ■ Selecting Judges

• Party affiliation • Judicial Philosophy - ideology • Race, gender, religion, region • Experience - District, Appellate, State • Acceptability (Bar Association, Interest

Groups, Justices) • The “Litmus Test” - test of ideological purity

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The Supreme Court in Action■ Accepting Cases

■ Rule of 4 ■ Brief Orders - returned to lower court

for reconsideration ■ Writ of Certiorari - an order by the

Court directing lower court to send up the records for review

■ Certificate - lower court askes the Supreme Court about rule of law or procedures in specific cases


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The Supreme Court in Action■ Amicus curiae - friend of the court (filed

by interested parties to support or reject arguments of case)

■ Majority opinion - majority of justices agree on the decision and its reasons

■ Concurring opinion - a justice agrees with the majority opinion but not the reasoning

■ Dissenting opinion - a justice who disagrees with the majority opinion

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Getting to Court■ In forma pauperis - poor person free

of charge ■ Fee Shifting - plaintiff can collect legal

fees from defendant if loses ■ Standing - entitled to bring to court ■ Class Action Suits - case on behalf of

many persons under similar circumstances


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The U.S. Supreme Court Justices in 2010. Front row: Justices Clarence Thomas and Antonin Scalia, Chief Justice John Roberts, Justices Anthony Kennedy and Ruth Bader Ginsburg; second row: Justices Sonia Sotomayor, Samuel Alito, and Elena Kagan.

TIM SLOAN/AFP/Getty Images

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Judicial Review

■ Defined: the power of the courts to declare laws unconstitutional

■ Over 160 federal laws have been declared unconstitutional

■ The federal courts’ chief weapon in the American government system of checks and balances


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Two Approaches to Judicial Review

!■ Judicial Restraint Approach – judges

should decide cases strictly on the basis of the language of the Constitution

■ Activist Approach – judges should discern the general principles underlying the Constitution and apply them to modern circumstances


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The Power of the Federal Courts■ The Power to Make

Policy • Stare decisis (let the

decision stand) • Political question

(avoids) • Remedy (activism)


The activism of federal courts is exemplified by the sweeping orders they have issued to correct such problems as overcrowded prisons, p. 458.

Alex Webb/Magnum Photos

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Courts as Policymakers■ New Deal Era

■ Supreme Court struck down laws designed to end the Great Depression

■ FDR proposed “court packing” - increase the number of justices

■ Did not pass Congress but placed enough pressure on Court to change voting (“switch in time to save nine”)

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Warren Court (1953-1969)

■ Termed “most liberal court ever” ■ Active in civil rights and liberties ■ Brown v BOE 1954 (desegregation) ■ Gideon v Wainwright 1963 (attorney) ■ Miranda v Arizona 1966 (read rights

at time of arrest)

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The Burger Court (1969-1986)■ More conservative ideology,

narrowing the rights of defendants ■ Roe v Wade 1973 (abortion) ■ US v Nixon 1974 (executive

privilege did not apply) ■ Regents of University of CA v

Bakke 1978 (affirmative action legal, but quotas not)

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Rehnquist and Roberts Courts (1986-Present)

■ Conservative court continued to limit, but not reverse defendants’ rights, abortion, and affirmative action

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Checks on Judicial Power

■ Congress and the Courts • Confirmations • Impeachment • Number of judges • Jurisdiction

■ Public Opinion and the Courts


Thurgood Marshall became the first black Supreme Court justice. As chief counsel for the NAACP, Marshall argued the 1954 Brown v. Board of Education case in front of the Supreme Court. He was appointed to the Court in 1967 and served until 1991, p. 463.

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