the judicial branch structure and process n.
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THE JUDICIAL BRANCH: STRUCTURE AND PROCESS. Topic #12. Judicial Review as a “Byproduct”. Because it is exercised by ordinary courts (rather than by a special “constitutional court”), judicial review in the U.S. does not operate in the following fashion : Congress passes a law,

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judicial review as a byproduct
Judicial Review as a “Byproduct”
  • Because it is exercised by ordinary courts (rather than by a special “constitutional court”), judicial review in the U.S. does not operate in the following fashion:
    • Congress passes a law,
    • the President signs the law,
    • the Supreme Court reviews the law [in the manner of a “constitutional court”], and then (if it is judged to be constitutional)
    • the law goes into effect.
  • Rather, as was illustrated by the case of Marbury v. Madison, it operates in the following fashion:
    • Congress passes a law (e.g., the Judiciary Act),
    • the President signs the law, and
    • the law goes into effect.
    • The law may subsequently produce a legal case (Party A v. Party B) and, in deciding the case (e.g., whether someone can be convicted for violating the law), courts may have to decide whether the law is constitutional.
  • So U.S. courts exercise judicial review as a byproduct of deciding concrete cases that come before them.
    • However, it is also true that concrete cases may be contrived deliberately to test the constitutionality of laws.
the federal court system
The Federal Court System
  • Not only the size but also the structure of the U.S. court system (particularly at its intermediate level) has changed since the original Judiciary Act of 1789,
    • as a result of many amendments to the Judiciary Act.
  • The size of the Supreme Court has been fixed at nine since 1869.
  • The old Circuit Courts have been replaced by U.S. Courts of Appeal
    • However, the geographical jurisdictions of these intermediate Courts of Appeal are still referred to as “circuits.”
    • In each circuit, appeals Court judges normally sit in panels of three.
  • Larger states now contain several U.S. District Courts, and
    • each District Court has several judges.
    • A U.S. Attorney is assigned to each Federal District Court.
the federal court system cont
The Federal Court System (cont.)
  • The allocation of original vs. appellate jurisdiction in today’s federal courts:
      • District courts: 100% original
      • Courts of Appeal: 100% appellate
      • Supreme Court: ~ 99.9% appellate, ~0.1% original
  • State court cases that raise “federal questions” they may be appealed to the U.S. Supreme Court.
  • As previously noted, state court systems typically follow the same three-tiered structure as the federal system.
types and names of cases
Types and Names of Cases
  • Original criminal cases (prosecution vs. defendant):
    • United States v. John Doe
    • The People [State, Commonwealth, etc.] v. John Doe
  • Original civil cases (plaintiff vs. defendant)
    • Marbury v. Madison
    • Maryland v. McCulloch
    • Plaintiffs and defendants may be either governments or private parties
  • Cases appealed to higher court (appellant vs. other party):
    • loser v. winner at lower level
    • John Doe v. United States (or state)
    • McCulloch v. Maryland (Topic #17)
appealing cases to higher courts
Appealing Cases to Higher Courts
  • While the SC is primarily an appeals court, it can review only a tiny fraction of the cases that it might review.
  • Most cases are resolved at the trial (district) court level.
    • Most criminal cases are resolved by plea bargain, so there is no trial and no appeal.
      • Most criminal defendants who go to trial are convicted, but often the case is pretty open-and-shut, so there is little basis for appeal.
      • If there is a trial and the defendant is found to be not guilty, the prosecution cannot appeal.
    • Many civil cases are settled out-of-court before trial.
      • But if a civil case goes to trial, the loosing party can usually appeal and often does so.
  • Appeals from Federal District Courts to the Court of Appeals are fairly automatic if requested.
  • But appeals from the (federal) Courts of Appeal or from state Supreme Courts to the SC are rarely automatic.
two routes to review by the sc
Two Routes to Review by the SC
  • Prior to 1925, many cases could be appealed to the SC, whose caseload therefore became overwhelming.
  • As a result of an amendment to the Judiciary Act in 1925, only a few types of cases now qualify for a (more or less) automatic review by the SC.
    • e.g., when a lower court has declared a federal law to be unconstitutional.
    • Such cases constitute only about 10% of the SC case load (~10 cases a year).
  • In other cases, the losing party may petition the SC for a writ of certiorari, by explaining why the SC should review the case:
    • If the petition is granted, the SC issues the writ to the lower court, ordering it to send up the case material for review.
    • About 7,500 such petitions are filed with the SC each year, but the SC grants petitions in only about 100 or fewer cases a year.
    • Nevertheless, such cases make up about 90% of the SC’s case load.
the writ of certiorari cont
The Writ of Certiorari (cont.)
  • The SC can use the petition for writ certiorari procedure to “screen” cases for its consideration and thereby it can largely control its own agenda, i.e.,
    • the SC can pick and choose the cases it will take for review.
  • The SC uses the “rule of four” (4/9 rule) in deciding whether grant “cert.”
    • The SC court is especially likely to grant cert
      • if the case raises important and/or unresolved legal issues, or
      • if the lower court(s) have ruled in a way that appears to be contrary to precedent and prior SC decisions, or
      • if lower courts are following a SC precedent that members of the SC now want to reconsider and perhaps overrule.
  • Justices who vote to grant cert
    • are rather likely to support the appellant and reverse the lower court decision if SC takes the case, but
    • there is no guarantee they will so decide.
supreme court decision making
Supreme Court Decision Making
  • Both parties submit written briefs, stating the legal arguments that support their positions.
    • Amicus curiae (“friend of the court”) briefs may also be submitted (by the U.S., advocacy groups, etc.).
  • Oral argument is scheduled.
    • Time is very limited, usually no more than one hour for each side.
      • And justices commonly interrupt the lawyers with questions.
    • If the United States is a party in the case, it is usually represented by the Solicitor-General.
    • Oral argument is open to the public and the press.
      • But it is not open to radio or television (not even C-SPAN).
      • Complete transcripts of oral argument are made available and recently tape recordings have also been released.
sc decision making the conference
SC Decision Making: The Conference
  • Following oral argument, SC members discuss a case and then vote in the SC Conference.
    • Only the justices themselves attend the Conference (no clerks, etc.)
    • Conference proceedings are kept totally secret.
    • The conference process remained a mystery until about 40 years ago.
      • Justice William Brennan, “How the SC Arrives at Decisions,” NY Times Magazine
  • In its appellate role, SC must either affirm or reverse the lower court decision.
  • The Chief Justice first presents his views and tentative conclusions, followed by the Associate Justices in order of seniority.
sc decision making the conference cont
SC Decision Making: The Conference (cont.)
  • Justices then vote in reverse seniority, with the Chief Justice casting the final vote.
    • SC decisions are governed by simple majority rule (5/9).
    • In the event of a tie (resulting from a vacancy, illness, or recusal), the lower court decision is affirmed.
  • With a few exceptions (per curium decisions), a SC decision is accompanied by a SC opinion justifying the decision is written and signed by one or more of the justices (e.g., Marbury v. Madison).
    • If the Chief votes with the majority, the Chief writes the opinion or assigns the task to some other justice in the majority.
    • If the Chief votes with the minority, the most senior Associate Justice in the majority writes the opinion or assigns the task to some other justice in the majority.
      • The Chief, who votes last in an open “roll call,” may have a strategic incentive to vote with the majority (if the vote is other than 4-4), so as to control the writing of the opinion.
sc decision making the conference cont1
SC Decision Making: The Conference (cont.)
  • The draft opinion is circulated among the justices for comments, criticisms, and suggestions (especially from the justices in the majority).
    • As a result, the draft is usually revised and sometimes completely rewritten.
    • Occasionally Justices may switch their votes, possibly reversing the previous tentative decision and requiring a new written opinion.
  • When the SC’s opinion is largely complete, justices in the majority and minority may decide to write concurring or dissenting opinions, respectively.
    • Such opinions do not have the force of law and often are written in a less legalistic style than the opinion of the Court.
  • The SC then announces its decision and releases its opinions (usually for a number of cases simultaneously).