The Nomination Process • Formal Qualifications • The Constitution has no formal qualifications • Informal Qualifications • Senatorial courtesy? • Political ideology • Party and personal loyalties • Acceptability to the Senate • Judicial experience • Race and gender • The "Litmus Test" • Judicial Philosophy • Judicial Restraint • judges play minimal policy making roles (a.k.a. strict constructionist); Original intent of the Founding Fathers or law; follow precedent and base their decision on previous case law. • Judicial Activism • judges believe they should act more boldly (a.k.a loose constructionists) • Judges should apply and interpret the law in light of ongoing changes—especially in terms of civil rights and social issues.
Confirmation Hearings • President Names • Senate • Judiciary Committee • Hearings • Judiciary CmteReports • Full Senate vote (majority vote)
Organization of the Court • Basics • 1 chief justice 8 associate justices • number set by law and has varied from six to ten over the course of history, but has remained 9 since the 1870s • Session • Begins the first Monday in October through the end of June
Current Supreme Court (2013) Alito Breyer Sotomayor Kagan Roberts Kennedy Ginsberg Thomas Scalia
Organization of the Court • Jurisdiction • The SCOTUS has both Original Jurisdiction and Appellate Jurisdiction • Original Jurisdiction • Two cases may be heard in its Original Jurisdiction • Those to which a state is a party, or involving two or more states • Those that involve ambassadors or other foreign ministers • Appellate Jurisdiction • Almost all cases that get to the SCOTUS come to it under this • Over 8,000 cases were appealed to the SCOTUS in 2008—only heard a few hundred • Usually because the SCOUTS agrees with the lower court’s decision
Organization of the Court • How does the court pick the cases it hears? • Case must have a significant Constitutional question to deal with • Person bringing suit must be personally injured by the law being challenged (must have “standing” • All other remedies have been exhausted • Requires agreement of four justices to hear the case (“rule of four”) • Of the few hundred cases heard, most of those are dealt with by “brief orders” • the court sends the case back to the lower court with a “brief” or letter instructing the lower court to reconsider. • Most of the remaining 90-100 cases come to the court via a writ of certiorari (or cert), a Latin phrase that means “made more certain” • a. The SCOTUS orders a lower court, or state court, to send the case to them for review • Either party (defendant or plaintiff) can also apply to the SCOTUS to have their case heard • If denied, the lower court’s ruling stands.
Hearing and Deciding a Case • Set the Date • From the first Monday in October (when the session begins) to early summer the court hears its cases in two week cycles. • During those two week cycles the SCOTUS hears arguments from each side • Briefs • Before a case is heard in court, the justices receive printed briefs in which each side presents legal arguments and relevant precedents • Amicus Curie Briefs- “friend of the court” interest groups present their briefs in addition. • Oral Argument • Beginning on Monday, the SCOTUS begins hearing “oral arguments” • Each side has 30 minutes to present their argument • At any time a justice can interrupt a lawyer and ask questions. • If the US government is involved, the “Solicitor General” represents the US. • The Conference • By Wednesday afternoon and all day on Friday the justices meet to conference. • Led by the Chief Justice the justices argue the case amongst themselves. • No formal vote is taken but each justice is asked to give his or her views and conclusions
Opinions • Definition—Statement of legal reasoning behind decision • Three Types • Majority opinion • the official opinion of the court (usually written by the most senior justice of the majority) very important b/c it sets precedence • Dissenting opinion • opinion of the justices who do not agree with the majority • Concurring opinion • justicezwho agree with the majority but for different reasons than the opinion written • In all decisions, the SCOTUS is very aware of “Stare Decisis” • Reliance on past decisions or precedents to formulate decisions in new cases
Implementing Court Decisions • Judicial implementation • Refers to the translation of court decisions into actual policy • Problem of Implementation • Decisions must be carried out by the other branches or state officials (Brown case- 10 years without implementation) • Andrew Jackson: “[Chief Justice] Marshall has made his decision. Now let him enforce it.”
F. REVIEW • Written legal opinion • One of the 12 judicial districts covered by the Court of Appeals • order by the Court to lower courts to send them records on a case for review • Power of the courts to declare a law unconstitutional • Standard by which future cases are decided • Decision of the Court • lower court asks the Court to certify the answer to a specific question in the matter B. Writ of ceterorari Circuit Opinion Judicial Review Certificate Brief Precedent A. D. G. C. E.