The federal judiciary
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The Federal Judiciary. 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. – Article III, sec. 1. The Federal Judiciary. Judiciary Act of 1789

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The Federal Judiciary

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The federal judiciary

The Federal Judiciary

  • 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. – Article III, sec. 1


The federal judiciary1

The Federal Judiciary

  • Judiciary Act of 1789

  • Creates 13 District courts and 3 Circuit courts

  • Section 25 : Allows one to appeal a case under state law to the Supreme Court if there is a constitutional question.

  • Today: 94 District Courts

  • 13 “circuits” for the Court of Appeals


The federal judiciary2

The Federal Judiciary

  • Two types of jurisdiction

  • Original: Ambassadors, other public ministers, and cases involving states

  • Appellate : Must have a constitutional question


The federal judiciary3

The Federal Judiciary

  • Federalist #78

  • The court is the “least dangerous branch”

  • It can only hear real cases or controversies involving real injuries.

  • It is passive – has to wait for cases to come to it.

  • Doesn’t grant advisory opinions


The federal judiciary4

The Federal Judiciary

  • Deciding to decide

  • Writ of Certiorari – “to be informed of”

  • A writ issued by a superior court requiring an inferior court to produce a certified record of a particular case.


The federal judiciary5

The Federal Judiciary

  • Deciding to decide

  • The Supreme Court receives 10000 petitions a year.

    2000 paid appeals

    8000 in forma pauperis (manner of pauper)

  • the Court agrees to hear about 75-85 cases

  • About 4% of the paid petitions and 1/10th of 1% of in forma pauperis petitions


The federal judiciary6

The Federal Judiciary

  • Granting Cert

  • Cert pool = 8 justices belong

  • 4 clerks of each justice read 10000 petitions and write memos

  • Justice Samuel Alito doesn’t belong

  • Rule of 4: It takes four justices to agree to hear a case


The federal judiciary7

The Federal Judiciary

  • Fast Track petitions

  • From the Solicitor General (heard 90% of the time)

  • Petitions with amicus briefs

  • “Circuit Conflict” – 80% of the docket

  • Civil Liberties issues present

US Solicitor General Donald Verrilli


The federal judiciary8

The Federal Judiciary

  • More “cert-worthy” criteria

  • Good vehicle

  • Importance

  • “Sui generis” – one of a kind

  • Importance to polity (Brown, Roe)

  • Legal Importance

  • Affects large # of people (national security)

US Solicitor General Donald Verrilli


The federal judiciary9

The Federal Judiciary

  • Reasons to deny

  • Absurd claims – “nut cases”

  • A better case in the pipeline

  • A petition that raises too many questions

  • Bad facts

  • Case deemed “frivolous”

  • Lack of percolation


Judicial doctrine

Judicial Doctrine

  • Procedural Doctrine:

  • Governs how lower courts should do their work

  • Substantive Doctrine:

  • More like policy making, guides judges into which person should win the case

Both can overlap and conflict with one another, for example search

and seizure doctrine. In order to change it, the court must alter existing

methods that the courts have already followed


Interpreting the constitution

Interpreting the Constitution

  • Using Stare Decisis: Translated from Latin, stare decisis means “let the decision stand.”

  • Judges should decide cases on the basis of previously decided cases.


Interpreting the constitution1

Interpreting the Constitution

  • Using Stare Decisis:

  • Pros: This method fosters stability in law.

  • This method would foster predictability to the legal profession.


Interpreting the constitution2

Interpreting the Constitution

  • Using Stare Decisis:

  • Cons: When looking at majority and dissenting opinions, one can usually find precedents.

  • It may be difficult finding a “rule of law” in an opinion. For example, consider Taney’s opinion in Dred Scott


Interpreting the constitution3

Interpreting the Constitution

  • Doctrine of Original Intent: In the 1833 case of Barron v Baltimore, Chief Justice Marshall rejected the view that the Bill of Rights covered state actions because the Framers did not intend for it to do so.


Interpreting the constitution4

Interpreting the Constitution

  • Doctrine of Original Intent:

  • Pros: The Framers acted in a calculated manner.

  • The justices can deduce constitutional truths which would produce neutral principles of law. In other words, the approach would not reflect the ideological or political values of the judges.

  • This method fosters stability in law.


Interpreting the constitution5

Interpreting the Constitution

  • Doctrine of Original Intent:

  • Cons: If ONLY this approach were used, the Constitution would lose its applicability.

  • The Constitution embodies not one intent, but many. Who WERE the Framers?

  • From which sources should justices find the original intentions of the Framers?


Interpreting the constitution6

Interpreting the Constitution

  • Doctrine of Literalism: A literalist would scrutinize the Constitution and look at the LITERAL meaning of the words. For example, the 1st Amendment reads, “Congress shall make no law . . . abridging freedom of speech.” No law means NO LAW.


Interpreting the constitution7

Interpreting the Constitution

  • Doctrine of Literalism:

  • Pros: The approach would not reflect the ideological or political values of the judges.

  • This method fosters stability in law.


Interpreting the constitution8

Interpreting the Constitution

  • Doctrine of Literalism:

  • Cons: The approach supposes a precision in the English language. Some words have multiple meanings.

  • The judges must still interpret the Constitution. Article I, Section 8 gives Congress the power to establish an army and a navy. What about an air force?


Interpreting the constitution9

Interpreting the Constitution

  • Using basic principles and values in the perspective of history: The ideas and concepts upon which the Constitution is built have a life of their own. The Justices should frame their decisions within the context of these values without ignoring the realities of contemporary society.


Interpreting the constitution10

Interpreting the Constitution

  • Using basic principles and values in the perspective of history:

  • Pros: Justices have a responsibility to not hold back the progress of society by adhering to outmoded methods of interpreting the Constitution.

  • The Constitution should be a “living, breathing document.”


Interpreting the constitution11

Interpreting the Constitution

  • Using basic principles and values in the perspective of history:

  • Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation.

  • This approach would foster judicial activism.


Interpreting the constitution12

Interpreting the Constitution

  • Using contemporary social values in terms of today’s policy needs: The justices should use contemporary social values when interpreting the Constitution.


Interpreting the constitution13

Interpreting the Constitution

  • Using contemporary social values in terms of today’s policy needs:

  • Pros: Justices have a responsibility take into account social values of the time period interpreting the Constitution.

  • The Constitution should be a “living, breathing document.”


Interpreting the constitution14

Interpreting the Constitution

  • Using contemporary social values in terms of today’s policy needs:

  • Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation.

  • This approach would lead to decisions much like Korematsuv United States (1944).


The politics of opinion writing

The Politics of Opinion Writing

  • After hearing the case, judges meet and discuss how they will tentatively vote

  • If the Chief Justice is voting with the majority, he assigns someone the task of writing the Majority Opinion (if voting in the minority, senior member does the job)

  • Opinions are written for core beliefs of the majority AND to try and convince the dissenters to be with them

    • Difficult to do, has its costs. For example, language is often skewed as a means to meet in the middle (Brown v. Board never set a timeline because of this)


Checks on the court

Checks on the Court?

  • Disregard by enforcement

  • Legislative Veto (unconstitutional?)

  • Change the size of the court

  • Amend the Constitution

  • Elected members pressure?

  • Change the law itself

  • Department of Justice as a tool?

  • Pick people you trust (President and Senate)


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