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THE JUDICIARY

THE JUDICIARY. By Loren Miller. U.S. SUPREME COURT, 1790. New York City. U.S. SUPREME COURT TODAY. Washington, D.C. http:// www.oyez.org. ARTICLE III.

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THE JUDICIARY

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  1. THE JUDICIARY By Loren Miller

  2. U.S. SUPREME COURT, 1790 New York City

  3. U.S. SUPREME COURT TODAY Washington, D.C. http://www.oyez.org

  4. ARTICLE III 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.

  5. THE WEAKEST BRANCH? The federal judicial system was expected to be the weakest branch of the government and early presidents had a difficult time finding people who would serve on the Supreme Court as there was little to do. 1790 – 0 cases 1791 – 2 cases 1792 – 5 cases

  6. THE WEAKEST BRANCH? The judicial branch became more of a “co-equal” branch when John Marshall became Chief Justice.

  7. JUDICIAL REVIEW The principle that the courts have the power to strike down legislative and executive acts that are unconstitutional. Hylton v. U.S. (1786) Marbury v. Madison (1803)

  8. Number of Federal Laws Declared Unconstitutional 1798-1859 2 1860-1909 29 1910-1929 21 1930-1939 13 1940-1959 7 1960-1979 36 1980-1999 40 2000-2011 18 TOTAL 166

  9. Number of State Laws Declared Unconstitutional 1790-1859 36 1860-1909 182 1910-1929 258 1930-1939 92 1940-1959 127 1960-1979 346 1980-1999 226 2000-2011 40 TOTAL 1,307

  10. TYPES OF LAW • Constitutional Law • Statutory Law • Civil Law • Criminal Law • Administrative Law • Common Law • Natural Law • Litigation abounds: • A D.C. judge sued his drycleaner for $54 million for losing his pants • Schools that now ban running at recess • The teacher sued for repositioning a student’s hands on a flute A Hazard of Texting

  11. COMMON LAW Strictly speaking, common law must be: 1) Unwritten and 2) Traced back to England Today, common law means that legal decisions build from precedent established in previous cases and apply commonly throughout the jurisdiction of the court.

  12. Administrative Agencies Federal Trade Commission: regulation of advertising and telemarketing. Federal Communications Commission: regulates the broadcast, cable, satellite, and telephone industries. Federal Election Commission: regulates political campaign contributions and expenditures. Food and Drug Administration: regulates prescription drug and medical product advertising.

  13. Administrative Rules# of pages in Federal Register(in thousands)

  14. CASELOADS IN FEDERAL COURTS In Thousands

  15. CASELOADS IN TEXAS COURTS In Thousands

  16. HOW TO INTERPRET THE LAW • Doctrine of Original Intent • Literalism or Absolutism • Stare Decisis • Balancing Approach • Can judges interpret the law “value free”?? • Judicial Activism: go beyond the words of the law to consider the societal implications of the decision (one who overturns a law) • Judicial Restraint: should not go beyond the clear words of the law.

  17. WHO ARE THE ACTIVIST JUDGES?

  18. HOW TO INTERPRET THE LAW

  19. The law, in its majestic impartiality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread. Jacques Thibault, French Nobel Prize Winning Writer, 1894

  20. INTERPRET THESE TEXAS LAWS • At one time it was illegal to own a copy of the Encyclopedia Britanica in the state—because that publication contained a formula for making liquor. • The town of Princeton outlawed onion throwing.

  21. INTERPRET THESE TEXAS LAWS • There was a state law that prescribed that when two trains met at a railroad crossing, each had to come to a full stop, and neither could proceed until the other had gone. • El Paso made it a crime to throw a faded bouquet into a trash can.

  22. JUDICIAL SYSTEM, 1790 Created by the Constitution Supreme Court 3 Circuit Courts Of Appeal Created by the Judiciary Act of 1789 13 District Courts

  23. FEDERAL COURT SYSTEM U.S. Supreme Court (9,500 appeals) Original Jurisdiction Legislative Courts 13 U.S. Courts Of Appeals (179 Judges) (55,000 cases) Federal Regulatory and Administrative Agencies 94 U.S. District Courts (679 Judges) (379,000 cases) 2012

  24. ARTICLE I COURTSSPECIALIZED COURTS • Article I, Section 8 -- the necessary and proper clause Is used by Congress to create legislative courts • Tax Court (19 judges; 15 year terms) • Court of Appeals for Veterans Claims (7 judges; 15 year terms) • Court of Military Appeals (5 judges; 15 year terms) • U.S. Claims Court (16 judges; 15 year terms)

  25. ARTICLE I COURTSSPECIALIZED COURTS • Recent Courts: • Foreign Intelligence Surveillance Court • A secret court formed to hear government requests for warrants to conduct surveillance on suspected spies. Judges are “borrowed” from the district court. • If the judge denies the government’s request, then the government may appeal to the Foreign Intelligence Surveillance Court of Review. Judges are “borrowed” from the courts of appeals.

  26. APPELLATE COURTS Patents and International Trade

  27. FEDERAL & STATE COURTS State Courts of Last Resort (70,000 cases) To U.S. Supreme Court State Intermediate Courts of Appeal (168,000 cases) State Trial Courts (101 million filings) 2010

  28. The Number of Supreme Court Opinions Acetate CT–2

  29. SUBJECT MATTER (What is involved) PARTIES (Who is involved) FEDERAL JURISDICTION STATE V. STATEx U.S. CONSTITUTION REP. OF FOREIGN COUNTRYx FEDERAL LAWS Civil & Criminal U.S. GOVERNMENT TREATIES DIVERSITY OF CITIZENSHIP ADMIRALTY LAW

  30. JUSTICIABILITY • Ripeness: is it too early for the Court to decide the case? • Mootness: is it too late for the Court to decide? • Venue: is this Court the right one (jurisdiction) • Political Question: is the subject matter appropriate for the Court to decide at all • Standing: does the participant have a stake in the matter

  31. OPINIONS IN THE SUPREME COURT, 2007-08 • Original jurisdiction 1 • Civil actions from lower federal courts 42 • Federal criminal and habeas corpus cases 20 • Civil actions from state courts 7 • State criminal cases 8 • TOTAL 78 TYPE OF CASE NUMBER OF CASES

  32. JUDICIARY ACT OF 1925 • Prior to 1925, the Supreme Court was required to “hear” all cases properly brought before them • Since 1925, the Supreme Court only hears “cases of national importance”

  33. THE ACCEPTANCE PROCESS • Original Jurisdiction • very few cases begin at the Supreme Court • Appellate Jurisdiction • party must apply for a “writ of certiorari” (a cert)

  34. WHY ACCEPT?? Rehnquist Court Warren Court Burger Court % Reversed By Supreme Court

  35. WHY ACCEPT?? When the federal government (solicitor general) is the party asking for review. When there is a conflict between circuits. When the circuit court decision was not unanimous. When the case involves civil rights and civil liberties. When the justices are interested in the subject matter. When numerous interest groups show significant social or political interest.

  36. ACCEPTANCE PROCESS Law Clerks screen appeals & submit recommendations to justices Approximately 9,500 cases are appealed to the Court Recommendations are considered in Conference Discuss List Rule of Four Review denied for more than 99% of cases

  37. SUPREME COURT CASE LOADS, 1930-2010

  38. DECISION-MAKING PROCESS Class Action Court’s docket (80-125 cases) Briefs submitted by both sides; amicus curiae briefs filed Oral Argument Judicial Conference Decision Announced Opinion drafted and circulated Public Opinion Influence of Executive Branch Lower Court Rulings and Precedents Internal Politics of Court

  39. JUDICIAL CONFERENCE In the conference a preliminary vote is taken with the Chief Justice voting last. If the Chief Justice is in the majority, then s/he will assign someone (maybe himself) to write the “Opinion of theCourt.” If the Chief Justice is not in the majority, then the Justice with the most seniority who is in the majority will write the opinion. This opinion is circulated to all the Justices.

  40. JUDICIAL CONFERENCE Any Justice in the minority may write a “Dissenting Opinion,” which is also circulated to all of the Justices. If a Justice in the majority agrees with the Opinion of the Court but for reasons other than those stated in the Opinion of the Court, s/he may write a “Concurring Opinion,” which is also circulated to all of the Justices.

  41. HOW LONG DOES IT TAKE? Cases Days from Oral Argument to Decision, 1986-1998 Mean = 94

  42. Unanimous Decisions

  43. JUDICIAL RECRUITMENT • Judicial recruitment in the United States is unlike the selection process of most western democracies. • Western democracies treat being a judge as a distinct profession requiring specialized training. • Judicial selection in the United States is a political process with few formal requirements.

  44. A GROWING FEDERAL JUDICIARY 44% 32% 37% 45% 39% 50% 22% 13%

  45. % OF JUDGESHIPS FILLED BY PRESIDENT 50 44 37 45 35 39 22 18 13 2012

  46. CONFIRMATION DELAY(in Days) 23%

  47. Background of Supreme Court Justices to 2014 • Religious Affiliation: • Protestant 83 • Roman Catholic 14 • Jewish 7 • Unitarian 7 • No Affiliation 1 • Age on Appointment: • Under 40 5 • 41-50 33 • 51-60 60 • 61-70 14

  48. Background of Supreme Court Justices to 2014 • Religious Affiliation: • Roberts Roman Catholic • Scalia Roman Catholic • Kennedy Roman Catholic • Kagan Jewish • Sotomayor Roman Catholic • Thomas Roman Catholic • Ginsburg Jewish • Breyer Jewish • Alito Roman Catholic

  49. Background of Supreme Court Justices to 2014 • Educational Background: • College Graduate 96 Not a College Graduate 16 • Gender • Male 108 • Female 4 • Race: • Caucasian 109 • African American 2 • Hispanic 1

  50. Background of Supreme Court Justices to 2014 • Law School of Current Justices • Roberts Harvard • Alito Yale • Kagan Harvard • Scalia Harvard • Kennedy Harvard • Sotomayor Yale • Thomas Yale • Ginsberg Columbia • Breyer Harvard

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