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The Judiciary. Chapter 14. Learning Objectives. Analyze the implications of the adversarial process Explain the structure of the federal court system Compare and contrast arguments in favor of and against judicial activism Describe the process of reaching a decision to the U.S. Supreme Court

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The Judiciary

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The judiciary

The Judiciary

Chapter 14

Learning objectives

Learning Objectives

  • Analyze the implications of the adversarial process

  • Explain the structure of the federal court system

  • Compare and contrast arguments in favor of and against judicial activism

  • Describe the process of reaching a decision to the U.S. Supreme Court

  • Assess the influences on the U.S. Supreme Court

  • Compare and contrast the limits of judicial action

  • Assess the roles of the judiciary in a constitutional democracy

Balance of the court

Balance of the Court

“We are under a Constitution, but the Constitution is what the judges say it is……”

-Justice Charles

Evans Hughes



Understanding the federal judiciary

Understanding the Federal Judiciary

  • The judiciary is generally guarded from public opinion and the rest of government

    • No Terms (good behavior)

    • No salary reductions once confirmed

    • Guaranteed independence

Characteristics of the federal judiciary

Characteristics of the Federal Judiciary

  • Judicial Review (Marbury v. Madison)

  • Adversary system: based on the theory that arguing over law and evidence guarantees fairness

Criminal vs civil law

Criminal vs. Civil Law

  • Criminal trial a person’s liberty is at stake

  • Government provided attorneys

  • Right to a jury

  • Civil case penalties are predominantly monetary

  • No guaranteed attorney

  • No jury trials in state civil trials

Cases controversies and justiciability

Cases, Controversies, and Justiciability

  • Can only decide cases dealing with real controversy.

    • Must be brought to them

    • Must have already impacted a person (i.e. Obamacare)

    • Court should not here political questions, these are more properly dealt with be the legislature (Bush v. Gore)

Prosecuting cases

Prosecuting Cases

  • U.S. Department of Justice is responsible for prosecuting federal criminal and civil cases.

    • Headed by attorney general (Eric Holder)

    • Assisted by solicitor general (Neal Katyal)

      • Reps in front of Supreme Court cases

    • 94 U.S. attorneys

    • 1,200 assistant attorneys

Three types of federal courts judiciary act of 1789

Three Types of Federal Courts:Judiciary Act of 1789

Three types of federal courts judiciary act of 17891

Three Types of Federal Courts:Judiciary Act of 1789

  • Supreme Court original jurisdiction only in cases involving ambassadors, other public ministers, and other diplomats, and cases in which a stat or states are a party

    • Rest of the time only appellate jurisdiction

  • Currently 9 justices, originally 6

Three types of federal courts

Three Types of Federal Courts

  • District Courts

  • 678 judges across 94 district courts

  • Hear the majority of cases

Three types of federal courts1

Three Types of Federal Courts

  • Circuit Courts of Appeals

  • Appealing a case means taking it a higher court for review

  • Judges must use precedent

  • 13 of these courts, Indiana is in district 7

  • Usually operate in panels of three judges

Judicial federalism state and federal courts

Judicial Federalism: State and Federal Courts

  • Writ of habeas corpus: a court order requiring explanation to a judge why a prisoner is being held in custody.

  • State courts use their own constitution and laws, only when in conflict with the Constitution do federal courts interfere

Appointing federal judges

Appointing Federal Judges

  • Appointed by President, approved by Senate

  • Supreme Court = no requirements

  • Assumed they would be skilled in law

  • Washington established tradition

    • Same party

    • Same beliefs

    • Same rulings

    • Senator advice for district courts, ensuring every state is represented

Appointing federal judges1

Appointing Federal Judges

  • Presidents consult with Congress, especially senate

  • American Bar Association (ABA) rates candidates for appointment

  • Interest groups also chime in

  • Senate Judiciary Committee conducts interviews and investigations

    • May ask about personal history, opinions, and philosophy

    • 31 of 152 nominees have been refused by the Senate

The role of party race and gender

The Role of Party, Race, and Gender

  • 10% of nominations are from opposing party

  • Race, gender, and ideology more important now

  • More diversity in nominations with recent presidents

    • Clinton 50%

    • Bush 37%

Role of ideology

Role of Ideology

  • Regan’s two terms he appointed 368 lifetime judges

  • “Right kind” of democrats and republicans must be found

Role of judicial philosophy

Role of Judicial Philosophy

  • Are judicially active or do they demonstrate judicial restraint?

  • How do they interpret the Constitution?

    • originalists

  • Reforming the selection process after the 1987 and 1991 televised confirmation hearings of Robert Bork and Clarence Thomas

How the supreme court decides

How the Supreme Court Decides

  • Term 1st Monday in October through the end of June.

  • Hear arguments for two weeks, adjourn to consider cases and write opinions for other two weeks

    • 6 needed to rule, majority wins, lower court stands in case of tie

How the supreme court decides1

How the Supreme Court Decides

  • 8 Step Process

    • Reviewing appeals

    • Granting the appeal

      • Rule of 4

    • Briefing the Case

    • Holding the Oral Argument

      • 30 minutes only

    • Meeting in Conference

      • Friday mornings

    • Explaining the Decision

      • Opinion, Dissenting, Concurring

    • Writing the Opinion

      • Difficult tedious task, lots of responsibility and negotiating

    • Releasing the opinion

      • Publicly released

Influences on the supreme court

Influences on the Supreme Court

  • Supreme Court precedent is the primary influence.

  • Interest groups, chief justice, and law clerks, solicitor general, and citizens

After the court decides

After the Court Decides

  • People do not always immediately follow the courts rulings.

Limits on judicial action

Limits on Judicial Action

  • “stare decisis” to stand by that which is decided, or let the decision stand

  • Congressional and Presidential Action

    • Can’t be removed individually, but they can act to impact all of the judiciary

      • Similar to schools

Judicial power in a constitutional democracy

Judicial Power in a Constitutional Democracy

  • Judicial must remain independent

  • Elections matter

    • Appointments

  • Judges are aware of public opinion

    • They rely on the approval of our free people

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