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THE JUDICIAL BRANCH. SSCG 16abcd. The Judicial Branch was created by Article III of the Constitution and developed and spelled out in the Judiciary Act of 1789. The Nature of the Judicial System. Introduction: Two types of cases:

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The judicial branch


SSCG 16abcd

The judicial branch

The Judicial Branch was created by Article III of the Constitution and developed and spelled out in the Judiciary Act of 1789.

The judicial branch

The Nature of the Judicial System

  • Introduction:

    • Two types of cases:

      • Criminal Law: The government charges an individual with violating one or more specific laws.

      • Civil Law: The court resolves a dispute between two parties and defines the relationship between them.

    • Most cases are tried and resolved in state, not federal courts.

      • Cases of burglary or divorce

The judicial branch

The Nature of the Judicial System

  • Participants in the Judicial System

    • Litigants

      • Plaintiff—the party bringing the charge

      • Defendant—the party being charged

      • Jury—the people (normally 12) who often decide the outcome of a case

      • Standing to sue: plaintiffs have a serious interest in the case; have sustained or likely to sustain a direct injury from the government

      • Justiciable disputes: a case must be capable of being settled as a matter of law.

The judicial branch

BALIFF: Court attendant entrusted with keeping order in a courtroom during a trial.

Jury—the people (normally 12) who often decide the outcome of a case


Ringleader of the

Court’s proceedings

Plaintiff—the party bringing the charge

Defendant—the party being charged


Keeps the transcript

of court proceedings

The judicial branch

  • Participants in the Judicial System

    • Groups

      • Use the courts to try to change policies

      • Amicus Curiae briefs used to influence the courts

        • “friend of the court” briefs used to raise additional points of view and information not contained in briefs of formal parties

  • The Nature of

  • the Judicial System

  • Attorneys

  • 800,000 lawyers in United

  • States today

  • Legal Services Corporation:

  • Lawyers to assist the poor

  • Access to quality lawyers is not equal.

The judicial branch

The Structure of the Federal Judicial System

  • District Courts (91 federal courts) – at least 1 per state: Cal , Tex, NY each have 4

    • Original Jurisdiction: courts that hear the case first and determine the facts - the trial court

    • Deals with the following types of cases:

      • Federal crimes.

      • Civil suits under federal law and across state lines.

      • Supervise bankruptcy and naturalization.

      • Review some federal agencies.

      • Admiralty and maritime law cases.

      • Supervision of naturalization of aliens.

      • Involve civil suits involving citizens from different states, and money sought is over 75,000

The judicial branch

The Structure of the Federal Judicial System

  • Each Federal Judicial District has a U.S. Attorney, nominated by the Pres and confirmed by Senate. They are the chief law enforcement officer.

  • Courts of Appeal

    • Appellate Jurisdiction: reviews the legal issues in cases brought from lower courts

    • Hold no trials and hears no testimony

    • 12 circuit courts

    • U.S. Court of Appeals for the Federal Circuit – specialized cases

    • Focus on errors of procedure and law

The judicial branch

The Structure of the Federal Judicial System

  • Established in Article III.

  • Court of last resort and has the final say in all matters dealing with the

    United States Constitution.

  • The Supreme Court

    • Ensures uniformity in interpreting national laws, resolves conflicts among states and maintains national supremacy in law.

      • 9 justices – 1 Chief Justice, 8 Associate Justices

      • Supreme Court decides which cases it will hear—controls its own agenda.

      • Some original jurisdiction, but mostly appellate jurisdiction.

      • Most cases come from the federal courts.

      • Most are civil cases.

The judicial branch

The Politics of Judicial Selection

  • Presidents appoint members of the federal courts with “advice and consent” of the Senate.

  • The Lower Courts

    • Appointments handled through Senatorial Courtesy:

      • Unwritten tradition where a judge is not confirmed if a senator of the president’s party from the state. where the nominee will serve opposes the nomination.

      • Has the effect of the president approving the Senate’s choice.

    • President has more influence on appellate level.

The judicial branch

The Politics of Judicial Selection

  • The Supreme Court

    • Fewer constraints on president to nominate persons to Supreme Court

    • President relies on attorney general and DOJ to screen candidates

    • 1 out of 5 nominees will not make it

    • Presidents with minority party support in the Senate will have more difficulty.

    • Chief Justice can be chosen from a sitting justice, or as a new member to the Court. If a sitting Supreme Court member is nominated for Chief Justice, they have to go through the approval process all over again.

The judicial branch

The Backgrounds of Judges and Justices

  • Characteristics:

    • Generally white males

    • Lawyers with judicial and often political experience

  • Other Factors:

    • Generally of the same partyand ideology as the appointing president

    • Judges and justices may notrule the way presidents had hoped they would have.

The judicial branch

Public Influence on Justices

  • Justices are NOT elected, but appointed by President. However, Justices not entirely immune to public opinion.

  • Appointed by President, agree with his ideologies, President 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.

The judicial branch


  • 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 seek approval from local senators over locally appointed judges.

Selection of justices
Selection of Justices

On the federal level, POTUS will look at three key ingredients for a Justice

  • Party Affiliation: while justices are free of political control after confirmation, this helps identify candidates for the president

  • Judicial Philosophy: previous rulings can show how a justice will respond to future cases.

  • Background: legal training, variety of law and/or govt jobs. (Earl Warren was governor of California when he was selected to be Chief Justice by Eisenhower.)

The judicial branch

Today’s Supreme Court……



2006—(GW BUSH)






2009— (Obama)


1991—(G HW Bush)



2005— (GW Bush)



1993— (Clinton)


1986— (Reagan)



The judicial branch

So how did they get their power?

It all began


The judicial branch

The Midnight Judges

While the Federalists no longer ruled the executive branch, they remained powerful in the judicial branch.

Adams had earlier appointed John Marshall, a Federalist, as Chief Justice of the Supreme Court.

Just before Adams left office, President Adams pushed a law through Congress called the Judiciary Act of 1801.

It increased the number of justices on the Supreme Court to sixteen. Adams quickly filled the positions with Federalists.

These judges became known as the MIDNIGHT JUDGES.

The judicial branch

The Midnight Judges

Jefferson and the Republicans were angry when they came into office the next day. They argued that these appointments were not valid.

One of the appointed, William Marbury, wanted their judicial appointment.

It went to the Supreme Court.

In Marbury v. Madison, Marbury argued that he should have received his commission as stated under the Judiciary Act of 1789.

The judicial branch

The Court Agreed….But…

The Supreme Court ruled that the Judiciary Act of 1801 was unconstitutional in the first place. The Court ruled that the Constitution contained no provision for the Supreme Court to issue such orders as the act required.

So Marbury

Ultimately lost.

The judicial branch

This decision established the principle of judicial review— power to declare and act by Congress, the President, anyone, unconstitutional.

This proved our government worked and that is why it is one of the MOST IMPORTANT COURT CASES IN US HISTORY!!!!!!!!!

The judicial branch

  • "It is emphatically the province and duty of the judicial department to say what the law is."

The supreme court
The Supreme Court

  • Article III, Sec II establishes that the SC has both original & appellate jurisdiction.

  • (Case can start, or be appealed at Supreme Court.)

  • Writ of Certiorari (SUHR shee uh RAR ee): Order from the SC to send up record in case for review.

  • Rule of Four:Four justices must agree to hear an case before it can come before the SC.(If denied, lower court ruling stands.)

  • Solicitor General:½ the cases brought to the SC involve the fed. govt. S.G. is appointed by POTUS to represent Gov't before the SC.

Order of events for the supreme court
Order of events for the Supreme Court

  • Written documents given to justices by both sides.

  • Each side gets 30 minutes to argue their case. Justices may interrupt at any time to ask questions.

  • Justices meet to discuss/decide on a case. (can be quick or take weeks). Votes are taken. Opinion writing assigned.

  • Justices draft opinions, circulated for comment. Then announce their ruling.

    Opinion of the Court: Majority Ruling.

If the court agrees to hear a case, these are the following steps:


Oral Arguments



The judicial branch

The Courts

as Policymakers

  • The Solicitor General:

    • a presidential appointee and fourth-ranking office in the Department of Justice

    • is in charge of appellate court litigation of the federal government

    • Four key functions:

      • Decide whether to appeal cases the government lost.

      • Review and modify briefs presented in appeals.

      • Represent the government before the Supreme Court.

      • Submit a brief on behalf of a litigant in a case in which the government is not directly involved.

The judicial branch


  • Seriatim - “in a series” justices used to read their opinions in order. Practiced stopped under the Marshal court

  • Unanimous Opinion: strongest of all opinions. Full agreement from the justices. (ex. Brown v. Board of Education)

  • Majority Opinion: One justice will write the Majority opinion with statements of legal reasoning behind their judicial decision on the case.

The judicial branch

  • Types of Opinions (continued)

    • Dissenting opinions are written by justices who oppose the majority. Can be used for refilings/other cases.

    • Concurring opinions are written in support of the majority but stress a different legal basis.

    • Stare decisis: No ruling, they let previous decision stand unchanged

    • Precedent: Each opinion is important, since future court decisions can be based on the rulings of the past.

      • May be overruled

    • Original Intent: the idea that the Constitution should be viewed according to the original intent of the framers

The judicial branch


  • “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.

The judicial branch

The Courts as Policymakers

  • Judicial

  • Implementation

  • How and whether court

  • decisions are translated

  • into actual policy,

  • thereby affecting the

  • behavior of others

  • Must rely on others to carry out decisions

    • Interpreting population: understand the decision

    • Implementing population: the people who need to carry out the decision–may be in disagreement

    • Consumer population: the people who are affected (or could be) by the decision

The judicial branch

  • A Historical Review

    • John Marshall and the Growth of Judicial Review

      • Marbury v. Madison (1803) established judicial review—courts determine constitutionality of acts of Congress



  • The Marshall Court

  • The Warren Court

  • The Burger Court

  • The Rehnquist Court

The Courts and the Policy Agenda

The judicial branch

  • The Courts and Democracy

    • Courts are not very democratic.

      • Not elected

      • Difficult to remove judges and justices

    • The courts often reflect popular majorities.

    • Groups are likely to use the courts when other methods fail, which promotes pluralism.

    • There are still conflicting rulings leading to deadlock and inconsistency.

Understanding the Courts

The judicial branch


  • Judicial policymaking and implementation occur in lower federal and state courts.

  • Many important questions are heard by the courts.

    • Much decision making is limited by precedent.

  • Even the unelected courts promote democratic values.

Supreme court firsts
Supreme Court Firsts!

John Marshall

1st Impactful Supreme Court

Chief Justice

Thurgood Marshall

1st African-American


Sandra Day O’Connor

1st female justice

The judicial branch

Benefits and perks of being a

Supreme Court Justice.

Your word is law: Justices hold great influence over the shaping & interpretation of American law, and their caseloads require them to grapple with important constitutional issues that can have long-lasting impacts.

The judicial branch

nine-month term:

get the summers off.

And since they do not allow cameras in the courtroom, they get cool drawings like this!

The judicial branch

  • Salary: CJ: $223,500 AJ: $213,900

  • Entitled to a lifetime pension equal to their highest full salary.

  • In order to qualify for a full pension, retiring justices must have served for a minimum of 10 years provided the sum of the justice's age and years of Supreme Court service totals 80.

The judicial branch

  • All federal employees can access health care insurance through the Federal Employees Health Benefits Program. The federal program offers a national network of physicians available without a waiting period.

The judicial branch

  • Law Clerks a higher premium rate based upon any pre-existing conditions. :

  • Reviews petitions for certiorari,

  • drafts merits opinions

  • reviews parties' briefs,

  • checks lower court records for errors,

  • checks facts,

  • conducts legal research,

  • assists with drafting opinions,

  • prepares for oral arguments,

  • check citations,

  • proofreads anything a justices asks of them.

The judicial branch

Conservatism vs. Liberalism a higher premium rate based upon any pre-existing conditions.

  • Justices are supposed to be “above politics”

  • However, they do have personal ideologies

    • EX. – CJ Earl Warren (1953-69) and CJ Warren Burger (1969-1986) were very liberal

    • CJ William Rehnquist (1989-2005) and CJ John Roberts (2005-?) swing conservative



The judicial branch

JUDICIAL ACTIVISM vs. JUDICIAL RESTRAINT a higher premium rate based upon any pre-existing conditions.

  • The most controversial cases decided by the Supreme Court are often those that involve judicial review.

  • Even after 200 years after the creation of the Supreme Court, Americans are still divided about its proper use.

  • On one side you have supporters of JUDICIAL ACTIVISM and on the other you have advocates of JUDICIAL RESTRAINT.

  • The justice’s views on this help a President decide who they want to nominate for the Supreme Court.

The judicial branch

  • JUDICIAL ACTIVISM a higher premium rate based upon any pre-existing conditions.

  • Based on the belief that the Court has both the right and the obligation to use its power of judicial review to overturn bad precedents and promote socially desirable goals.

  • LIBERALS tend to be more supportive of this stance.



The judicial branch

  • JUDICIAL RESTRAINT a higher premium rate based upon any pre-existing conditions.

  • Holds that judicial review should be used sparingly, especially in dealing with controversial issues.

  • Conservatives tend to be more supportive of this stance.



Judicial and political philosophy
Judicial and Political Philosophy a higher premium rate based upon any pre-existing conditions.

Judicial Activism

Judges should interpret law loosely, using their power to promote their preferred political and social goals. Judges are said to be activists when they are likely to interject their own values in court decision.



Leans to the left on public policy and would vote Democrat.


Leans to the right on public policy and would vote Republican.




Judicial Restraint

Legislators, not judges, should make the laws. Judges are said to exercise judicial restraint when they rule closely to statutes and previous cases when reaching their decisions. They follow the “original intent” of the framers.

The judicial branch

Constraints on the Power of Federal Courts a higher premium rate based upon any pre-existing conditions.

  • Adversarial system– decision must be made between 2 choices, and court can’t bring up an issue.

  • Justiciable dispute– must judge actual situations, not hypothetical situations

  • 3. Political question– absence of law to rule on a case and the court calls on the Congress to create law

  • Ex. – gay marriage – equal protection

The judicial branch

Checks on the SC a higher premium rate based upon any pre-existing conditions.

  • President appoints all judges

  • Congress must confirm appointed judges

  • Congress may alter the structure of the court system (# of courts and justices)

  • Congress has the power to impeach judges

  • Congress may amend the Constitution if the Courts find a law unconstitutional

    • Ex. Income tax originally found unconstitutionally so Congress added 16th amendment