Institutions of Government Unit 4, Part III: Judicial Branch 35-45%

Institutions of GovernmentUnit 4, Part III: Judicial Branch

35-45%

Evolution of the Judiciary

Role of the Judicial Branch• interpret the law

Intent of the Framers• judges explain and apply existing

laws• expected judicial review but not

such a big stake in policy making• federal judges have became

more activist over time and retained authority to create policy • liberal judges tend to be more

activist and conservative tend to be more strict

• judge can be both conservative and activist and liberal and strict


1789 to 1861• federal v. state authority• interstate commerce under

federal authority• state law conflicting with

federal law void

• Marbury v. Madison, 1803• Judicial review

• McCulloch v. Maryland, 1819• federal authority interpreted

broadly


1865 to 1936• economic authority of state

and federal governments• narrow interpretation of 14th

and 15th amendments• segregation• poll taxes• Plessy v. Ferguson, 1896

• private property protected by 14th amendment


1936 to the present• political liberty• court packing plan (FDR)• Court defers to legislature for

economic regulation• Warren Court established civil

liberties• incorporation of Bill of Rights• in 1990s, the Court allowed

states to resist some federal authority

Selecting Justices

Presidential Nomination• All federal judges require

senate approval• the process is partisan • delays in approval leave

vacancies in appellate and district courts

Senatorial Courtesy• nominees for federal courts

receive approval from senators of that state if they are from the President’s party

Selecting Justices

Litmus Test• President looks for

justices that share ideology

• concern that ideology too dominant and senate approval slower

Structure of the Federal Courts

Legislative Courts• created to help

Congress carry out expressed powers

• judges have fixed terms and can be removed • Tax Court• Military Court


Constitutional Courts• shoulder workload

with the Supreme Court under Article III

• judges have life terms and can be impeached but not removed• District Courts (94)• Courts of Appeals (12)


Judiciary Act, 1789• est. Supreme Court

with six justices • created 13 judicial

districts • created traveling

“circuit” courts• created Attorney

General


Federal District Courts• 89 districts in 50 states, 1

in D.C., 1 in Puerto Rico (632 judges)

• life term - $140,000 • hear 80% of federal

workload (300,000 cases per year)

• criminal and civil cases that do not create new public policy

• regularly use jury


Federal Courts of Appeal (12)• 179 justices serve in 12 courts• all 50 states and territories

divided into 11 districts plus one in D.C.

• life term• hear 19% of federal workload

(30,000 cases per year)• typically sit in panels of three

with no jury• more difficult cases demanding

interpretation of Constitution

Federal Jurisdiction

Dual-Court System• cases fall under state and/or

federal jurisdiction

Federal Jurisdiction• federal jurisdiction applies

for two factors1. subject matter

• case involves federal laws, treaties, or the Constitution

2. parties involved• case involves federal

government • diversity cases: different states

or citizens of different states


Multiple Jurisdiction• if both federal and state

laws have been broken

State Courts• State court – state

Supreme Court – Supreme Court

• State court rulings may still be appealed to the Supreme Court

Supreme Court

State Supreme Court

State Court

Supreme Court

State Supreme Court Appeals Court

District CourtState Court

Line of Jurisdiction


Standing• personal harm must be

demonstrated • sovereign immunity • historically only

citizens can challenge the government• Worcester v. Georgia• Dred Scott v. Sandford,

1857

Road to the Supreme Court

Rule of Four• takes four Supreme Court

justices to issue a writ of certiorari

• only about 100 cases heard each year by the Supreme Court• most cases rejected by the

courts • leaves diversity of

constitutional interpretation across the nation

Road to the Supreme Court

Reasons for Writ of Cert• significant

Federal/Constitutional question

• conflicting decisions by lower courts

• clarifying or reversal of Constitution interpretation made by lower court

The Supreme Court in Action

Presentations to the Court• each side of a case submits a brief• this is a summary of the case plus

case precedent• justices can question you during that

time

solicitor general• represents the U.S. before the

Supreme Court• gets to review cases before they get to

Supreme Court (has influence)

amicus curiae• a brief submitted by an uninvolved

party


Deliberations• John Roberts, the

chief justice, speaks first and votes last

• each of the nine justices gets one vote

• reasoning for the case is summarized as an opinion

The Court Today

Sotomayor, Breyer, Alito, KaganThomas, Scalia, Roberts, Kennedy, Ginsberg

Elena Kagan•born in NY in 1960•Princeton University•Worcester College•Oxford University•dean of Harvard Law•Obama – 2010

Sonia Sotomayor•born in Bronx in 1954•Princeton University•Assistant DA in NYC•2nd Court of Appeals•Obama – 2009

Samuel Alito, Jr.•born in NJ in 1950•Princeton University•Yale Law•Assistant US Attorney•3rd Court of Appeals•Bush – 2006

Stephen Breyer•born in SF in 1938•Stanford University•Oxford•Harvard Law School•1st Court of Appeals•Clinton – 1994

Ruth Bader Ginsberg•born in NY in 1933•Cornell, BA•Harvard Law•Columbia Law•DC Court of Appeals •Clinton – 1993

Clarence Thomas•born in GA in 1948•Holy Cross College•Yale Law School•DC Court of Appeals•Bush – 1991

Anthony M. Kennedy•born in CA in 1936•Stanford University•London School of Economics•Harvard Law•9th Court of Appeals•Reagan – 1988

Antonin Scalia•born in NJ in 1936•Georgetown University•University of Fribourg•Harvard Law •DC Court of Appeals•Reagan – 1986

John G. Roberts, Jr.•born in NY in 1955•Harvard College•Harvard Law•DC Court of Appeals•Bush – 2005


majority opinion• explanation of courts

decision (considered as important as the decision itself)

concurring opinion• gives other reasoning for

the majority decision (considered as important as the decision itself)

dissenting opinion• explains an alternative

understanding of the case

The Power of the Federal Courts

Measures of Judicial Power• over 130 laws have been

declared unconstitutional • since 1810, over 260 cases

have been overturned

stare decisis• “to stand by things decided” • lawyers reference previous

decisions of the court similar in circumstances or content to the case at hand

The Power of the Federal Courts

Checks on Judicial Power• courts rely on others to implement

their decisions • South after Brown v. Board• Jackson and Indian Removal

• overturning Supreme Court decisions1. revising legislation2. amending the Constitution 3. future Supreme Court decisions4. altering the jurisdiction of the courts

(changing boundaries)5. changing number of justices

Policy-making Power of the Courts

Judicial Activism• making a ruling that creates a

new policy for the entire nation

• this has increased over the years • Roe vs. Wade, 1973 • Gideon vs. Wainwright, 1963

• when a justice’s personal convictions ignore the rule of law• declaring a law unconstitutional

when it is not• upholding an unconstitutional law• overturning a standing precedent

(Bush v. Gore, 2000)


Arguments for activism1.the other two branches are

too politically biased, only the courts are able to make fair, objective policy

2.streamlines the process, because judges aren’t bogged down by the lawmaking process


Judicial Restraint• courts should merely

review actions of the other two branches


Arguments for Restraint1. courts are not accountable

(not elected)2. lawmaking is strictly the

job of the legislative branch who are elected specifically for that purpose

3. judges lack the expertise to create and manage policy


• Public Opinion and the Courts• outside the pressure of

public opinion• affects judges when

getting appointed to the courts

• may affect public’s perception of the court’s legitimacy

Documents

Institutions of Government Unit 4, Part III: Judicial Branch 35-45%