State & Local Government

1. State & Local Government Judicial Politics in the States

2. The Judicial Branch Courts are important in U.S. due to two factors: • A. higher law notion of constitutionality • Constitution = societal contract • some institution must interpret that contract • courts have assumed that role, because they are seen as less political • B. separation of powers • courts are largely independent of the other branches • because, they are capable of protecting themselves • in short, courts are political actors

3. The Creation and Organization of the Federal Judiciary • Article III – The United States Supreme Court • Article I – Congress has the Power to Establish Lower Federal Courts • Federal District Court (94) • The Federal Courts of Appeals (12+1)

5. Federal Court Organization (simplified) • The federal courts are organized in to three tiers - like a pyramid. • Base: Federal District Courts • Each state has at least one district court and no district encompass more than one state. • There are 94 total district courts and about 665 judges. • These courts are presided over by federal judges who are appointed by the president, confirmed by the senate and hold office for life. • Each court has a minimum of two judges and a maximum of about 27. • These courts hear about 280,000 criminal and civil cases per year.

6. Federal District Court • Federal district courts have original jurisdiction in most, but not all, federal cases. Some of these are criminal, but many if not most cases are civil. • Federal district courts use both grand and petite juries and cases are argued by United States Attorneys, who are appointed by the president via senatorial courtesy. • Arkansas has two federal districts: Western & Eastern.

7. Arkansas Federal Districts

8. Eastern District

9. Federal Courts of Appeals • 11 geographic circuits, DC 12th, 13th Court of Appeals for Federal Circuit. • Court of Appellate Jurisdiction • Hear about 40K per year • No Juries / Three Judge Panels • Written Briefs

10. Middle Tier: The US Court of Appeals • Cases that are adjudicated by the federal district courts may be appealed to one of 13 U.S. Courts of Appeals. • Twelve of these courts are regional circuit courts - that is, they hear cases from larger geographic areas known as circuits. • The Thirteenth court is in Washington D.C. and concentrates on appeals related to civil suits against the US government. These courts hear about 36,000 cases per year. • Cases are heard by three judges who largely work off of written arguments known as briefs with limited oral arguments on the part of attorneys. There are no juries, witnesses or cross examinations. • Arkansas is located in the 8th Circuit which sits in St. Louis, MO. The 8th Circuit hears cases for the following states: Arkansas; Iowa; Minnesota; Missouri; Nebraska; North Dakota; South Dakota.

12. Top Tier: The United States Supreme Court • The Supreme Court is both a court of original and appellate jurisdiction. • Article III (section 2) outlines the original jurisdiction of the court. Most important is the supreme court's role as the first and only arbitrator of legal disputes between the states. • Article I grants Congress the power to establish appellate jurisdiction for federal courts. • Most cases heard by the court are on appeal from the US courts of appeals and state courts of last resort (the highest of the state courts)- although in extraordinary circumstances the court will hear a case directly after resolution in district court • E.g. United States vs. Nixon (1974) • The Supreme Court hears relatively few cases - approximately 150 – 200 per year out of 5000 - 7000 requests for review. 97% of requests for review are rejected on average.

13. Article III, Section II: Supreme Court Jurisdiction • The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. • In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

14. Federal Court Jurisdiction • Federal Question jurisdiction • A case must present a question arising under the U.S. Constitution, a federal statute, regulation, executive order, or treaty. • Diversity of Citizenship jurisdiction • Applies only to civil suits • Case must involve parties from different states and an amount in controversy that exceeds $75,000

15. The United States Supreme Court • How the US SC Hears Cases • Writ of Certiorari • Petition for Court to Hear the Case • Literal meaning (request for lower court records) • Rule of Four • Exhaust the State Judiciary • Exhaust (almost always) the federal judiciary

16. Supreme Court: Basic Procedures • Cases appealed from the states must meet two conditions. First, they must have exhausted the state system. Second, they must raise federal questions - issues of constitutional principles, federal law, etc. • The court exercises total control over its docket and decides what cases to hear by the rule of four • The procedures of the supreme court look much like those in appellate courts. The nine justices hear oral arguments and read briefs including amicus curiae briefs. • The federal government, a usual litigant in before the court, is represented by the United States Solicitor General (Paul D. Clement)

17. Basic Procedures (con’t) • Court hears oral arguments and then meets in private meeting to vote on case. • Senority • Agenda setting • After the court decides a case by majority vote, a majority (typically the chief justice if in the majority or the most senior justice in the majority) and minority opinion is written. • These serve as the guide for lower courts to handle similar cases. Because of the principle of Stare Decisis the majority opinion explains the basis for subsequent rulings.

18. The United States Supreme Court • How the US SC Hears Cases Continued • There are several types of opinions issued by the Courts: • per curiam - decision delivered via an opinion issued in the name of the Court rather than specific justices. Tend to be short and on non-controversial issues. • Majority opinion - opinion of the court • Concurring opinion - written by justice who agrees with the majority's conclusion, but not its reasoning • Dissenting opinion - written by justice who disagrees with the majority's conclusion • The Court generally decides cases from the bottom-up. • Amicus Curiae & likelihood of review

19. Courts in Perspective • How Powerful are the US Federal Courts? • The strongest courts in the world • The weakest branch of government

20. Tools of the Court • Judicial Review • Marbury v. Madison (1803) • Exercise of JR • Approximately 160 Federal Statutes • Approximately 1400 State/Local Statutes (2/3 of which date to the incorporation era)

21. The Federal Courts • Article III establishes the Supreme Court. One of the major justifications for the court is the Supremacy Clause which establishes the preeminence of national over state law. • Congress also has the power to establish lower federal courts, and during the first congress the United States was divided in to judicial districts for the establishment of federal district court (there are 94 district courts in the United States). • Basic point: the United States has the strongest court in the world.

22. Strongest Courts Courts are powerful for several reasons • A. Ability to act as a regulator • regularly rule on the validity of federal regulations • many regulations currently not seen as valid until upheld by the courts • B. Ability to invoke judicial review • declare acts of Congress or the president to be impermissible under the Constitution • have done so about 160 times since 1803 • have ruled state laws unconstitutional about 1,000 times • C. One of the most trusted institutions in government • public trust is high • even given intrepretivist vs. activist debate

23. Courts are Limited • stare decisis • lawyers love precedent • prefer stability offered by prior cases -- less disruption to society and to reputation of the Court • writing in 1992 case of Planned Parenthood of Southeastern Pennsylvania vs. Casey, Justice David Souter noted, in upholding Roe: "For two decades of economic and social development, people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail.... [Whatever the premises of opposition may be, only the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure, and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court's legitimacy beyond any serious question."

24. Limits: Justiciability • must wait for cases to come to them - reactive, not proactive • The case must be justiciable: • there must be a real controversy - no friendly suits, no advisory opinions (unlike many state supreme courts) • case must be ripe and not moot - other avenues (state courts, etc.) must be exhausted, injuries real – not hypothetical, etc. • parties must have standing - they must be the ones at risk, government must waive sovereign immunity, etc. • Case must not present a political question - court must see the matter as one that can be solved by judges; often eliminates political matters on which the Court has no special expertise (e.g. conundrum of War Powers Act; Bush v. Gore)

25. Powers of the Court • The supreme court has the power of Judicial Review. That is, to declare laws passed by congress an the states unconstitutional and therefore null and void. This is what makes the courts so powerful. • Marbury v. Madison - 1803. • The election of 1800 witnessed the defeat of the federalists and the election of democratic president Thomas Jefferson. Before leaving office Federalist president John Adams, w/ the help of the federalist dominated legislature, packed the judiciary with loads of federalist judges. Jefferson was furious, and when he realized that several of the appointments had not been delivered he order they be cancelled. One of the appointees, Wm. Marbury, asked the court to order that the appointments be made.

26. Interpreting the Constitution • Built-in Flexibility? • Elastic clause • Reserve clause • Judicial Interpretation of the Constitution • “It is, emphatically, the province and duty of the judicial department to say what the law is.” – Marhsall • Doctrine of Original Intent (Meaning): judges should attempt to determine what the Framers intended the provision to mean. • Living Constitution: Meaning of constitution must evolve to fit the spirit of the age

27. Textualism • Interpretivism (textualism): the proper judicial function ins interpretation as opposed to law-making. • Judges are guided by the “plain meaning” of the constitutional text when it is clear. • “"[W]hen judges test their individual notions of 'fairness' against an American tradition that is deep and broad and continuing, it is not the tradition that is on trial, but the judges.“ – Justice Antonin Scalia • See “A Matter of Interpretation” for an essay on textualism by Scalia.

28. Originalism • Originalism: Judges should attempt to determine the original “meaning” or “intent” of the Founders (or Framers). • Important distinction • One theory, original intent, is the view that interpretation of a written constitution is (or should be) consistent with what was meant by those who drafted and ratified it. • The original meaning theory, which is closely related to textualism, is the view that interpretation of a written constitution or law should be based on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. • Strict Constructionism: strict construction requires a judge to apply the text as it is written and no further, once the meaning of the text has been ascertained • As Scalia has said, "the Constitution, or any text, should be interpreted [n]either strictly [n]or sloppily; it should be interpreted reasonably";

29. The Living Constitution • LC: a theory of constitutional interpretation which premises that the Constitution is, to some degree, dynamic. • As the direct counter to originalism, which centers on meaning at the time of ratification, the theory of a "living" Constitution suggests a founding document that remains interdependent with an evolving society. • Its proponents thus argue that societal progress must be taken into account when interpreting key constitutional phrases. • Pragmatism: the belief that interpreting the Constitution in accordance with long outdated views is often unacceptable as a policy matter. • Intent: the argument that the constitutional framers specifically wrote the Constitution in broad and flexible terms to create such a dynamic, "living" document. • Al Gore: “I would look for justices of the Supreme Court who understand that our Constitution is a living and breathing document, that it was intended by our founders to be interpreted in the light of the constantly evolving experience of the American people.”

30. Activism vs. Restraint • Activism v. Restraint: opposing philosophies of judicial power • Judicial Restraint: theory of judicial interpretation that encourages judges to limit the exercise of their own power. It asserts that judges should hesitate to strike down laws unless they are obviously unconstitutional. • Issues of standing, mootness, ripeness, political questions, etc. have to do with judicial restraint. • Judicial Activism: Courts are coequal participants in the policy-making process. • “it is far more important to be respectful to the Constitution than to a coordinate branch of government” William O. Douglas

31. The Ashwander Rules • Judicial Restraint counsels judges to avoid broad or dramatic constitutional pronouncements. • Some of these rules can be found in Brandeis’s concurring opinion in Ashwander v. Tennessee Valley Authority (1936). • 1. The Court will not anticipate the constitutionality in a friendly, non-adversarial proceeding. (Cases and Controversies) • 2.      The Court does not anticipate in advance (i.e. without the necessity for hearing) the constitutionality of a question of Constitutional Law/interpretation. (Cases and Controversies, no advisory opinions) • 3.      The court will not formulate a rule of law broader than the case which is before it. (Obiter Dicta going beyond the case issues is generally frowned upon but “done” all of the time)

32. The Ashwander Rules • 4.      If possible the Court will dispose of a case on non-constitutional grounds (statutory interpretation is preferred over Constitutional interpretation) • 5.      The Court will not pass on the validity of a statute on complaint of one who fails to show injury to person or property. (This is an issue of Standing) • 6.      The Court will not pass upon the constitutionality of a statute at the instance of one who has accepted its benefits. There is little need after all, for the ‘winner’ to challenge the Constitutionality of the law which aids them. (Cases and Controversies) • Whenever possible, statutes will be construed so as to avoid a constitutional issue (Statutory interpretation)

33. State Courts • The vast majority of non-criminal cases in the United States are handled in state courts, rather than federal courts. • For example, in Colorado, in 2002, which is typical, roughly 97% of all civil cases were filed in state courts and 89% of the cases filed in federal court were bankruptcies. • Essentially all probate and divorce cases are also brought in state court, even if the parties involved live in different states.

34. Forum Shopping • Often, a plaintiff can bring a matter either to state court or federal court, because it arises under federal law, or involves a substantial monetary dispute (in excess of $75,000 as of October 26, 2007) arising under state law between parties that do not reside in the same state. • If a plaintiff files suit in state court in such a case, the defendant can "remove" the case to federal court if a timely request is made to do so. • Deciding on the jurisdiction is part of litigation strategy for both plaintiff and defendant, in which the make up of the likely juries in each court, and the differences between federal and state court procedures figure highly. A mere federal law defense to a claim arising under state law, however, is generally not a basis for removing a case to federal court from state court.

35. Selective Incorporation • as originally written, Bill of Rights applied only to the national government • 1st Amendment: “Congress shall make no law….” • Madison proposed language to include states • “no State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases” • but never adopted • Barron v Baltimore (1833) – Court is explicit

36. Selective Incorporation Cases • cruel/unusual punishment (Robinson v CA, 1962) • right to counsel (Gideon v Wainwright, 1963) • self-incrimination (Malloy v Hogan, 1964) • confront witnesses (Pointer v TX, 1965) • impartial trial (Parker v Gladden, 1966) • speedy trial (Klopfer v NC, 1967) • compel witnesses (Washington v TX, 1967) • jury trial (Duncan v LA, 1968) • double jeopardy (Benton v MD, 1969)

37. More on Selective Incorporation • 14th Amendment (1868) • “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law” • did this mean Bill of Rights applies to states? • Supreme Court originally said it did not • e.g., Twining v New Jersey (1908)

38. Selective Incorporation (con’t) • Supreme Court begins to change in 1920s • Gitlow v NY (1925) … socialist manifesto • Supreme Court upholds conviction (“dangerous tendency” test) … but holds that 14th amendment extends 1st amendment to states • Near v MN (1931) … overturns prior restraint of Saturday Press to publish “malicious, scandalous, and defamatory” statements

39. Selective Incorporation Cases • since Gitlow and Near, Supreme Court has selectively incorporated most elements of Bill of Rights • assembly (DeJonge v OR, 1937) • religion (Cantwell v CT, 1940) • public trial (In re Oliver, 1948) • search and seizure (Wolf v CO, 1949) • exclusionary rule (Mapp v OH, 1961) • involved girlfriend of Don King

40. Highlight: 4th Amendment • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

41. Fourth Amendment • Privacy – protection against unreasonable searches & seizures through warrant requirement • Punishment – Exclusionary Rule: evidence gathered in violation of the Constitution cannot be used in a trial. • Caveat – applies only to government; it does not guarantee the right to be free from unreasonable searches and seizures conducted by private citizens or organizations (i.e. “Cheaters”).

42. Fourth Amendment & Privacy • The 4th Amendment requires the government to obtain a valid warrant in order to conduct a search or a seizure. • Valid warrants must establish “probable cause” – reasonable belief that a search or seizure would produce contraband or reveal a criminal activity • Exceptions • Plain View • Search incident to arrest

43. Fourth Amendment & Punishment • Exclusionary Rule (Weeks v. United States) – evidence obtained through an illegal search is “fruit of the poisoned tree” and thus cannot be used at trial. • Exceptions: • “Good Faith” – evidence collected through a defective warrants could be used where police reasonably believed it to be a good warrant (United States v. Leon) • “Inevitable Discovery” – evidence collected illegally may be admitted at court if it can be reasonably argued the evidence would have been obtained legally

44. Highlight: Fifth Amendment “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

45. Fifth Amendment Jurisprudence • Double Jeopardy – individuals may be tried only once for a particular offense • Self-Incrimination – protects witnesses from being forced to incriminate themselves. • To "plead the Fifth" or to "take the Fifth" is to refuse to answer a question because the response could form incriminating evidence • Due Process – the principle that the government must normally respect all of a person's legal rights instead of just some or most of those legal rights when the government deprives a person of life, liberty, or property • Due process embraces “fundamental fairness” & those fundamental rights that are "implicit in ordered liberty.“ • Notification of charges against you, right to be heard, etc.

46. Fifth Amendment & Punishment • Fifth Amendment • No self-incrimination • Miranda v. Arizona (1966) • ‘Voluntary Confessions’: The Court was called upon to consider the constitutionality of a number of instances, ruled on jointly, in which defendants were questioned "while in custody or otherwise deprived of [their] freedom in any significant way." • Does the police practice of interrogating individuals without notifying them of their right to counsel and their protection against self-incrimination violate the Fifth Amendment? • The Court held that prosecutors could not use statements stemming from custodial interrogation of defendants unless they demonstrated the use of procedural safeguards "effective to secure the privilege against self-incrimination." • Miranda Rights

47. Fifth Amendment & Privacy • The Fifth Amendment limits the power of eminent domain (the power of the government to take private property for public use) by requiring that "just compensation" be paid if private property is taken for public use. • What is “public use”? • Kelo v. City of New London – private property seized for commercial use did not violate the Fifth Amendment.

48. Eigth Amendment: Punishment • Eighth amendment: “Cruel & Unusual Punishment” • Furman v. Georgia • The Court's one-page per curiam opinion held that the imposition of the death penalty in these cases constituted cruel and unusual punishment and violated the Constitution. • However, it left the door open for states to put in place procedural safeguards that could permit the death penalty to pass constitutional muster. • Gregg v. Georgia • In a 7-to-2 decision, the Court held that a punishment of death did not violate the Eighth and Fourteenth Amendments under all circumstances. In extreme criminal cases, such as when a defendant has been convicted of deliberately killing another, the careful and judicious use of the death penalty may be appropriate if carefully employed.

49. Emanating Penumbras & Privacy Is there a right to Privacy? • Griswold v. Connecticut (1965) • “a right to privacy older then the Bill of Rights” • Though the Constitution does not explicitly protect a general right to privacy, the various guarantees within the Bill of Rights create penumbras, or zones, that establish a right to privacy. • Together, the First, Third, Fourth, and Ninth Amendments, create a new constitutional right, the right to privacy in marital relations. • Roe v. Wade (1973) • a “woman’s right to privacy was so fundamental it could be infringed only when the state interest in doing so was compelling” • The Court held that a woman's right to an abortion fell within the right to privacy (recognized in Griswold v. Connecticut) protected by the Fourteenth Amendment. • The decision gave a woman total autonomy over the pregnancy during the first trimester and defined different levels of state interest for the second and third trimesters. • As a result, the laws of 46 states were affected by the Court's ruling.

50. State Courts & Criminal Cases • About 91% of people in prison at any given time in the United States were convicted in state court, rather than federal court, including 99% of defendants sentenced to death. • Federal courts disproportionately handle white collar crimes, immigration related crimes and drug offenses (these crimes make up about 70% of the federal docket, but just 19% of the state court criminal docket). • A large share of the violent crimes that are prosecuted in federal court arise on Indian Reservations or federal property, where state courts lack jurisdiction and tribal court jurisdiction is usually limited to less serious offenses.