Judiciary (Supreme Court)

1. Judiciary (Supreme Court) “Whenever you put a man on the Supreme Court, he ceases to be your friend.” – Harry S. Truman “The Supreme Court has ruled that they cannot have a nativity scene in Washington, D.C. This wasn't for any religious reasons. They couldn't find three wise men and a virgin.” – Jay Leno

2. “Least Dangerous Branch” • Article III, as written, didn’t give any enumerated or implied powers to the judiciary branch • Alexander Hamilton penned in the Federalist # 78 that the judiciary would be the “least dangerous branch of government. It lacked the teeth of both the other branches of government; it had neither the power of the sword nor the power of the purse.” • It had no enforcement powers and could not raise or spend money

3. Constitution • Article III of the Constitution establishes: • a Supreme Court in which the judicial power of the United States is vested • life tenure or 'good behavior' for judges • judges receive compensation that cannot be diminished during their service • such inferior courts as Congress may choose to establish • the original jurisdiction of the Supreme Court • The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.

4. Today • It’s important not to think of the Court only as a legal entity: it is a political institution that makes both policy and law Why is the Court so powerful today? • First, the Court has the power of judicial review, which is the chief weapon the Court uses in our system of checks and balances • Second, the Court is constantly ruling on the most important constitutional issues of the day, making decisions involving millions of dollars and affecting millions of people

5. Common Law Traditions • The Court’s decisions are called precedents (d) - Decisions that will serve as a guide for future cases • Common law then, operates under the principle of stare decisis(d) - “Let the decision stand” • Gives our American Legal system both predictability and stability • The principle of stare decisis is crucial because without it, laws could be constantly changing - making life chaotic • Common law, then, is judge-made laws that over time, becomes common to all of society

6. American Legal System Dual Court System • There is one federal court system and 50 state court systems that exist concurrently • Cases may be heard in either system and both systems are basically three-tiered, as established by the Judiciary Act of 1789 • Before a state or federal court can hear a case, it must have jurisdiction-that is, the power to hear a case

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8. American Legal System Jurisdiction Terms Original Jurisdiction (d) - Where a case is first heard. The court decides the facts of the case (usually trial court with jury) Appellate Jurisdiction (d) - Hears an appeal from the party that LOST at the first level. This court does not concern itself with the facts of the case but whether or not the trial was fair. In other words, was due process followed?

9. American Legal System State Jurisdiction • State courts can have both original and appellate jurisdiction. • State Supreme Courts (AKA Superior Courts) has the final word in state system. These courts can do one of two things: • Affirm (approve) the lower court’s ruling • Reverse the lower court’s ruling and grant a new trial

10. American Legal System Federal Jurisdiction • The federal courts has jurisdiction in all cases involving: 1. Hears cases involving federal laws, treaties or the US Constitution. All issues beyond the scope of the states 2. Lawsuits between citizens of different states; foreign countries where the money involved exceeds $75,000

11. Sources of American Law The body of American law includes: • Federal and state constitutions • Statutes passed by legislative bodies • Administrative law and case law – the legal principles expressed in court decisions

12. Sources of American Law Constitutions • The constitutions of the federal government and the states set forth the general organization, powers and limits of government • The U.S. Constitution is the supreme law • A law declared unconstitutional cannot be enforced • Similarly, the state constitutions are supreme law within their borders (unless they conflict with the U.S. Constitution or federal laws and treaties made in accordance with it)

13. Amendment II • A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

14. Sources of American Law Statutes and Administrative Regulations • Statutes (laws enacted by legislatures) increasingly have become more important in defining the rights and obligations of individuals • These statutes typically cover three areas • Federal statutes -federal government (may cover areas ranging from hazardous waste to federal taxation) • State statutes – state government (may include criminal codes and commercial laws) • Ordinances – Cities and counties (may deal with zoning proposals and public safety)

15. Sources of American Law Case Law • The decisions rendered by the courts also form an important body of law, collectively referred to as case law • Case law includes judicial interpretations of the types of law just mentioned – constitutional provisions, statutes and administrative agency regulations • It is up to the courts, particularly the Supreme Court, to decide what a constitutional provision or a statutory phrase means

16. In the Beginning Creation of the National Judiciary • Because the Founders saw the judiciary as the weakest branch, they decided to place federal justices above the fray of politics by giving them life tenures and did not require them to run for office

17. In the Beginning Creation of the National Judiciary • The third branch of government began to take shape in 1789 with the passage of the Judiciary Act of 1789 • This act created the basic three-tiered structure of the federal court system: • The district courts that exist in every state • The circuit courts which served as appellate courts beginning in 1891 • The highest court in the land, the Supreme Court

19. Federal Court System Step 1 – DISTRICT COURTS • 94 US Dist. – Hear 342,000 cases/yr • Trial by jury (only federal court with jury) • Where the majority of federal cases are heard and decided with original jurisdiction Federal jurisdiction at the district level involves one of the following: • The federal government is named as a plaintiff or defendant • There is a federal question to be decided (treaty; federal statute; violation of federal criminal or civil law) • There is a civil suit involving citizens from different states that is more than $75,000

21. Federal Court System • Step 2 – APPEAL (CIRCUIT) COURTS • 13 Courts of Appeal – Hear 61,000 cases/yr • Panel of 3 judges, sometimes more • No cases start here, review district court decisions • Court of Appeals has two types of jurisdiction: • Only have appellate jurisdiction. Will hear criminal and civil cases from district court • Appeals from government administrative agencies (called the DC Circuit Court of Appeals-very important court)

22. Federal Court System • Courts of Appeals never hear new evidence and never have juries • They try and correct errors of law and procedure that happened in the district courts • The Court of Appeal decision is only binding in their area of jurisdiction • For example, Hopwood v. Texas is only valid in the 5th Circuit

23. Federal Court System • Step 3 – US Supreme Court • 2003 – Argued 84 cases, decided 71 • Hear appeals – writ of certiorari • Rule of 4 – 4 justices needed to agree to hear a case Chief Justice John Roberts

24. Federal Court System •   The Supreme Court’s decisions are binding on the whole nation and cannot be appealed or reversed except by the Court itself or by congressional statute or amendment • The Court’s decisions are called precedents - decisions that will serve as a guide for future cases • In the words of Justice Charles Evans Hughes, “(The Court) is under the Constitution, but the constitution is what we say it is”

25. The Marshall Court John Marshall is considered to be the most important chief justice to ever serve on the Supreme Court for two main reasons: 1. His length of service on the Court - gave the Court the stability and respect it needed 2. His influence - implementation of judicial review which strengthened the federal government (cases like Marbury; McCulloch; Fletcher v. Peck)

26. MARSHALL'S DECISIONS JUDICIAL AUTHORITY Supreme Court has the power to declare a law unconstitutional with the principle of judicial review. NATIONALISM The National Government is over the states. PROPERTY RIGHTS Private property is sacred and contracts legal.

27. MARSHALL'S DECISIONS JUDICIAL AUTHORITY Marbury vs. Madison NATIONALISM McCulloch vs. Maryland Gibbons vs. Ogden Cohens vs. Virginia PROPERTY RIGHTS Dartmouth College vs. Woodward Fletcher vs. Peck

28. Shaping the Government MARSHALL'S DECISIONS • Martin v. Hunter’s Lease (1816) • The Supreme Court established the principle that it had jurisdiction over state courts in cases involving constitutional rights

29. MARSHALL'S DECISIONS Marbury vs. Madison, 1803 • Case: William Marbury, a Federalist and a “midnight appointment” of President Adams, did not receive his commission from Sec. of State, James Madison. Marbury asked the SC to issue a “writ of mandamus” forcing Madison to deliver his commission. • Decision/Reason: Marshall dismissed suit, but in doing so struck down part of Judiciary Act of 1789 because SC had no authority to give Marbury his commission. • Significance: Established precedent of “judicial review”and the Supreme Court, not states had power to declare laws of Congress unconstitutional.

30. MARBURY VS MADISON • Prior to this case, the Supreme Court had been the weakest of the three branches of government. • Earlier, the belief was the states could nullify a law • 1803, the Supreme Court established its role as the final arbitrator (authority) of the meaning of the Constitution and its position of equality. • By setting a precedent for judicial reviewor the Supreme Court can declare a law unconstitutional not the states or Congress. • It also “sent the message” that the National Government is the last authority thus reinforcing Marshall’s belief in a strong central government over the states.

31. Chief Justice John Marshall stated, • “The Constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it. • If the former part of the alternative be true, then a legislative acting contrary to the constitution is now law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people to limit a power in its own nature illimitable. • It is emphatically the province and duty of the judicial department to say what the law is • If, then, the courts are to regard the Constitution and the Constitution is superior to any ordinary act of the legislature, the Constitution and no such ordinary act, must govern the case to which they are both applicable”.

32. Implementation • “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson • “All deliberate speed” – Chief Earl Warren • 10 years after Brown only 1% of Southern schools were desegregated • Court must rely on branches, states, and officials to enforce its ruling

33. Supreme Court At Work Which Cases Reach the SC?  • The Court will look at two criteria’s in deciding whether or not to grant cert: 1. The case must come from the US Court of Appeals or State Supreme Court.(94%) (Might have been decided differently by different courts of appeals or a lower court’s ruling disagrees with the Supreme Court’s views) 2. The case must involve an important federal question. (Wider constitutional implications beyond the two parties involved)

34. Supreme Court At Work Which Cases Reach the SC?  • The Court gets asked to hear cases from thousands of litigants every year - almost 8,000; of which the Court will only grant 80-90 writs of certiorari (made more certain) • (d) - A common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case

35. Supreme Court At Work Which Cases Reach the SC?  • Sometimes the Court, in rare instances, will hear cases involving original jurisdiction (is actually in Article III): 1. Cases involving disputes between two or more states. As was the case of Bush v. Gore, 2000 2. The United States and a state 3. Foreign ambassadors and other diplomats 4. A state and a citizen of that state

36. Supreme Court Caseload 

38. Supreme Court At Work Decisions and Opinions • When an opinion is written (a decision), it often takes months and many drafts • There are basically four types of opinions that can be delivered: • Majority Opinion • Concurring Opinion • Dissenting Opinion • Per Curiam Opinion

39. Supreme Court At Work Decisions and Opinions • Majority opinion (the official opinion of the court): is written by one member of the Court and reflects the majority of the justice’s views • Concurring opinion: written by a justice who agrees with the majority decision but for a different reason (usually done for future precedents)

40. Supreme Court At Work Decisions and Opinions • Dissenting opinion: one that is written by one or more justices who disagree with the majority • Per Curiam opinion: an unsigned opinion issued by the Court

41. Supreme Court At Work Decisions and Opinions • If the Chief Justice is in the majority, he/she will assign the job of writing the decision • The Court must provide legal reasons for its positions • They will be used as precedents for the lower courts • If a case is overturned, the Court will “remand” the case back to the lower courts, sometimes for a new trial • If the Chief Justice is in dissent, the most senior judge in the majority will assign the decision

42. How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and Amicus Briefs submitted Oral Argument Justices Conference Cases discussed Votes taken Opinion Assigned Opinions Drafted and Circulated Opinions Announced

43. Public Influence on Justices • Justices are NOT elected, appointed by Prez • However, not entirely immune to public opinion • Appointed by Prez, agree with his ideologies, Prez was elected, chosen because of bias • Justices are aware of public opinion, and are aware that decisions that flagrantly go against public opinion will not be implemented

45. Appointment • President appoints judges for ALL federal court vacancies • Senate must confirm all nominations by majority vote (Advice and consent) • Senatorial courtesy – tradition started by G.Washington to have senators select locally appointed judges in their states

46. Nomination Criteria • No constitutional qualifications • Competence • Ideology/Policy Preferences • Rewards • Pursuit of Political Support • Religion • Race and gender

47. Appointment • In the last 20 years, the average time taken to fill a federal judgeship was 464 days- compared to a week or two in Europe • This has created a situation that has severely burdened the caseload of the other district courts • Average federal case is now taking almost three years to complete • Some federal justices who dislike a sitting president will wait until the President is gone, even if they are very old or sick, in order for the next president to have a chance at nominating a more liberal or conservative judge

49. Federal Selection Process President Dept. of Justice Senators ABA Interest Groups Senate Jud. Comm. Senate

50. Appointment Judicial Appointments • Steps in nominating process: • Investigation: Both the FBI and the ABA will analyze a president’s short list for the federal courts • The FBI will do background checks to make sure the nominee has not been in legal trouble that could embarrass the president • Since the Truman administration, the ABA has been asked to rate the nominees (Well Qualified-Qualified-Not Qualified)