LECTURE #14: LECTURE #14: The JudiciaryThe Judiciary

Presented byPresented by

Derrick J. Johnson, MPA, JDDerrick J. Johnson, MPA, JD

Advanced Placement United States Advanced Placement United States Government & Politics,Government & Politics,

School for Advanced StudiesSchool for Advanced Studies

The Judiciary in the Constitution

The Constitution describes the powers of the Congress and the presidency. However, the judiciary is the least developed out of the three.

Article three only creates one Supreme Court, allows judges to serve for life and to receive compensation, broadly outlines original and appellate jurisdiction, and defines the procedure and limitations for those accused of treason. Article III consists of three sections.

The Judiciary in the Constitution

Section 1 U.S. Supreme Court is the only court mentioned in

Constitution. Congress can create all other courts. Judges compensation are not allowed to be

diminished while they hold office. Section 2

The Jurisdiction of the Supreme Court is defined, with all cases affecting ambassadors, ministers, and consuls and those in which a state is a party going automatically to the Supreme Court through its original jurisdiction.

Also federal jurisdiction is given to the U.S. Supreme Court in cases involving the U.S. as a party and controversies between two or more states or between different states or between citizens of different states.

The Judiciary in the Constitution

Section 3 Treason is defined as not only waging war

against the United States, but also aiding the enemy.

The penalty for treason is death.

Common Law Although the U.S. judiciary differs from the British

system, there are many areas which they share in common.

The U.S. courts embrace a lot of their traditions from the British legal system. In particular, U.S. Courts embrace common law.

Common law is a collection of judge-made laws that developed over time and is based on judge made decisions.

The practice of deciding cases with reference to former decisions is called precedence. Thus the doctrine of Stare decisis “let the decision stand” is based on the concept of precedence. This doctrine is the cornerstone of the British and American judicial systems.

When a court breaks from an established precedent, it is a big deal.

Judicial Review

Article III clearly reflects the traditional 18th century view of the courts that “they judge disputes between people and decide which of the two parties is right.”

The role of the judge was to find and apply existing law and not make “judge made law.”

The early Supreme Court gave very few indications that the judicial branch would be a co-equal branch of government.

Judicial Review The first session of the Court began in 1790 and

lasted 10 days. No cases were heard and they spent their time admitting lawyers to the federal bar.

By the time John Marshal was appointed as Chief Justice of the U.S. Supreme Court, the court’s inactive existence was to forever change. With the advent of the U.S. Supreme Court case, Marbury v. Madison (1803), the Court would establish the power of judicial review.

Marbury v. Madison(1803)

Facts: While President of the United States, John Adams (Adams) appointed several justices, including justices of the peace, in the District of Columbia. Adams signed the Commissions for these justices, but the Commissions were not delivered before his term expired. William Marbury (Marbury) was one of the justices of the peace appointed by Adams. When Thomas Jefferson (Jefferson) became President of the United States, he ordered his Secretary of State James Madison (Madison), to withhold these Commissions. Marbury brought suit directly in the Supreme Court, asking for a Writ of Mandamus to compel Madison to deliver the Commissions.

Marbury v. Madison(1803)

Issue. Is Marbury entitled to his Commission, and if so, do the laws provide a remedy?If Marbury is entitled to a remedy, can it be in the form of a Writ of Mandamus from the Supreme Court?

Held. Justice John Marshall (J. Marshall) held Marbury was entitled to his Commission when Adams signed the Commissions prior to leaving office. To determine whether Marbury had a remedy, J. Marshall distinguished political acts from acts specifically required by law. J. Marshall ruled the denial of the Commission fell into the latter category and was reviewable by the courts.

Marbury v. Madison(1803)

The Supreme Court of the United States (Supreme Court) determined Marbury was entitled to a remedy. However, Marbury was not entitled to a remedy in the form of a Writ of Mandamus issued by the Supreme Court. Section: 2 of the United States Constitution gives original jurisdiction to the Supreme Court only in, “[c]ases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party.”

This holding was contrary to the Judiciary Act of 1789 (the Act), which did authorize the Supreme Court to issue Writs of Mandamus on behalf of any person holding office in the United States. The part of the Act authorizing the Supreme Court to Writs of Mandamus under these circumstances was unconstitutional and that the Supreme Court did not have the authority to issue a Writ.

Marbury v. Madison(1803)

Discussion. The Supreme Court, rather than Congress, determines whether or not a statute is constitutional through judicial review. This was the first case to establish the Supreme Court’s judicial review powers.

Marshall’s decision in Marbury not only avoided a constitutional crisis, but it changed the notion of judicial power completely.

Marshall’s decision enable the Court to claim the power of judicial review, which is a power no expressed in the U.S. Constitution.

By using judicial review, the Court can scrutinize a statute and declare it constitutional or unconstitutional.

The Structure of the Federal Court System

Article III only calls for a supreme court, but it allowed Congress to create the lower courts. This was started with the Judiciary Act of 1789.

Congress created two types of lower federal courts: Constitutional

These judges are life time appointments The exercise their power from Article III Examples: District Courts (federal level trial

courts) and Courts of Appeal There are 94 district courts and 13 courts of

appeal

The Structure of the Federal Court System

District Courts Is the starting point for most federal litigation. They have original jurisdiction and they hear no

appeals. Each district court has between 2 to 27 judges,

depending on the caseload. Their jurisdiction includes federal crimes, civil suits

under federal law, civil suits between citizens from different states where the amount exceeds $50,000.

Courts of Appeal Have appellate jurisdiction only. They review the final decisions of district courts. Each court of appeals usually hears cases in three

judge panels, but there can be more. Decisions are made by a majority vote of the

participating judges.

The Players of the Judicial System

There are certain major players that make the judicial system work. They include: Litigants Lawyers Juries The Audience Judges

Litigants They include the Plaintiff, the one bringing the suit, and

the defendant, the person charged. In criminal cases, it is the state of federal government

that are prosecuting the case on the basis that the defendant broke a law affecting the public as a whole.

Civil cases can be either the government or private citizens as the plaintiff.

The federal government is responsible for two-thirds of the cases in federal court as either the defendant or the plaintiff.

Litigants must have standing to sue, or a serious interest in the case . This is usually determined by whether they can demonstrate that they have suffered during the case. Opposing a law is not enough. A plaintiff must show the court how he/she has been personally and actually affected by the case.

Lawyers

Lawyers are the life blood of the judicial system. Lawyers serve as the prosecutors for all criminal cases

and lawyers represent plaintiffs in civil cases. Lawyers also serve as public defenders for people who

can afford an attorney (see Gideon v. Wainwright). Lawyers for the defense can work with prosecutors on

plea bargains and help to reduce the case loads of the courts.

Juries

The right to a jury is fundamental to our judicial system.

Most trials do not involve a jury due to plea bargains or bench trials (trials with only judges).

Only a small number of cases are tried with juries. Juries determine what the facts are in a case as well

as the defendant’s guilt.

The Audience

Decisions sometimes are aimed at a particular audience, like the press, interest group, and the general public.

Interest groups, like the NAACP and the American Civil Liberties Union will seek out litigants to represent a cause they like. This was the case with the NAACP and the Brown v. the Board of Education of Topeka case.

The press actively influences sensational cases, especially if a celebrity is involved. The press can be the means for getting the public involved.

The Judge

Judges are the central figures in the courtroom. If there is a jury, the judge make the

determinations of law while the jury makes the determination of fact. If no jury is present, the judge makes both.

Judges are responsible for conducting a trial and ruling on motions.

Selection of Judges

Article III of the U.S. Constitution, unlike Article I & II for legislators and the president, are silent on the qualifications for judges. It only states that judges must exhibit “good behavior.”

Article III gives the power to select federal judges and justices to the president. However, all of the president’s nominations must be confirmed by the Senate by a simple majority.

There are hundreds of federal level judges and no one president can fill all of the seats at one given time. The president has to rely on recommendations from various sources to appoint judges.

Selection of Judges

These recommending sources can come from Congress, sitting judges and justices, the FBI, the Department of Justice, and the American Bar Association.

President George Washington started the tradition of senatorial courtesy, whereby the senior senator from the state in which the lower court nominee is being appointed, has an opportunity to object to or approve the appointment.

Usually, the Senate won’t confirm a lower court nominee unless the president has attempted to extend senatorial courtesy to the senior senator.

Selection of Judges

For Supreme Court appointments, the president tends to be more involved in the selection process and he will dedicate more time to the process.

The Senate Judiciary Committee will also take more time in interviewing the Supreme Court and Court of Appeals nominees. Afterwards, the full Senate will vote to confirm the appointment by majority vote. Out of the 149 individuals who were nominated for the Supreme Court, only 29 were unsuccessful.

Selection Criteria Presidents use a number of factors for their

appointment. They include the following: Political ideology

Presidents usually appoint judges who have a similar ideology as they do. In other words, liberal presidents tend to appoint liberal justices and conservative presidents tend to appoint conservative justices.

Party and personal loyalty About 90% of all justices belong to the same

political party as the president who nominated them.

Although it isn’t as common today, presidents still appoint personal friends to federal judgeships.

Selection Criteria

Acceptability to the Senate The Senate Judiciary Committee is responsible for

investigating the president’s nominee. If a nominee runs into trouble in the confirmation

process, he/she can be withdrawn from consideration by the president. Ex: Douglas Ginsburg was withdrawn by Ronald Reagan when it became known that he used marijuana while a professor at Harvard.

Selection Criteria

Judicial experience Most justices have held previous judicial offices,

like the Federal Court of Appeals, a state Supreme Court justice, or federal district court judge. Other justices, like Thurgood Marshall, William H. Rehnquist, Earl Warren, and Elena Kagan, worked in the department of justice or in another branch of government.

Selection Criteria

Race and gender From 1789 to 1967, justices of the supreme

court had be exclusively white males. In 1967, LBJ appointed Thurgood Marshall

as the first African American to serve on the Supreme Court. Since his appointment, Clarence Thomas was appointed in 1991.

Selection Criteria

In 2009, Barack Obama appointed Sonia Sotomayor as the first Hispanic to serve on the Supreme Court.

In 1981, Ronald Reagan appointed Sandra Day O’Connor to became the first woman to serve on the Supreme Court. Since her appointment, Ruth Bader Ginsburg (1993), Sonia Sotomayor (2009) and Elena Kagan (2010) have all been appointed to the Court.

Selection Criteria

Litmus Tests Is a test of ideological purity test of purity on

a particular issue. For example, members will grill nominees

about their opinions on issues like abortion. If the nominee is not “pure” enough or is

“too pure” on an issue, members could mount opposition to the nomination.

The Supreme Court at Work

The term of the Supreme Court begins on the first Monday in October and usually lasts until June or July of the following year.

Thousands of cases are appealed to the Supreme Court each year, but only a few cases are actually heard.

Cases are accepted by the “rule of four,” which means that four out of the nine justices must agree in order to hear the case.

The Supreme Court at Work Those cases presented to the Supreme Court for

possible review may be appealed through: Writ of certiorari – an order of the Court

directing the lower court to send up the records of the case for review; usually requires the need to interpret the law or decide a constitutional question.

Certificate – lower court asks the Supreme Court about a rule of law or procedures in specific cases.

Briefs and Oral Arguments

Once a case reaches the Supreme Court, the lawyers for both sides must file a written brief detailing the facts, position of the party and all relevant laws and previous cases that support their position.

Interested parties may file an amicus curiae brief. Oral arguments allow both sides to present their

arguments and positions within a 30 minute time period. Justices may interrupt them during this time to raise questions of fact and law.

Research and Conferences Justices use law clerks to research the information

presented in oral arguments and briefs. Throughout the term, justices meet in private

conferences to consider cases heard in oral argument, with the Chief Justice presiding.

Each justice may speak his/her mind about the case. Once the justices have made a decision, the decision

must be explained in a written statement called an opinion.

If voting with the majority, the Chief Justice selects who will write the majority opinion. If the Chief Justice is in the minority, then the senior most justice in the majority assigns who will write the opinion.

Research and Conferences There are three types of opinions:

Majority Opinions – a majority of the justices agree on the decision and its reasoning.

Concurring Opinions – a justice who agrees with the ultimate decision, but disagrees with the reasoning behind it.

Dissenting Opinion – a justice or justices disagrees with the majority.

Opinions are important because they can set precedents, standards or guidelines to be followed in deciding similar cases in the future.

Judicial Philosophy

Most controversy surrounding the operation of the Court centers on the concepts of judicial activism and judicial restraint.

Judicial activism holds that the Court should play an active role in determining national policies. The philosophy advocates applying the Constitution to social and political questions.

Judicial restraint holds that the Court should avoid taking the initiative on social and political questions, operating strictly within the limits of the Constitution and upholding acts of Congress unless they conflict with the Constitution.

Judicial Philosophy

Judicial restraint proponents advocate a more passive Court in the area of policy making.

There is a common misconception of the two concepts. Most people equate judicial activism with liberalism and judicial restraint with conservatism.

However, you can have a conservative Supreme Court who embrace judicial activism (Ex: The Rehnquist Court’s Bush v. Gore decision).

THE END OF LECTURE #14THE END OF LECTURE #14