The Courts

11/19/12

The Roberts Court, 2010Back row (left to right):Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

SEE THIS http://www.nytimes.com/interactive/2010/07/25/weekinreview/20090725_supremecourt_pano.html?ref=us

And this http://www.nytimes.com/interactive/2010/07/25/us/scotus-quiz.html?ref=supreme_court

Panorama of Supreme Court and quiz

The Courts Relations with other institutions:

Justice Rehnquist, ill with cancer, administered the oath to President Bush on Jan. 20, 2005, at Mr. Bush's second inauguration.

Obama and CJ Roberts at the 2nd swearing in

http://www.youtube.com/watch?v=1gpeoZDmOgU

the “rule of 4practice that permits four of the nine justices to grant a writ of certiorari

Organization of the Courts

The 94 judicial districts are organized into 12 regional circuits, each of which has a United States court of appeals. A court of appeals hears appeals from the district courts located within its circuit, as well as appeals from decisions of federal administrative agencies. In addition, the Court of Appeals for the Federal Circuit has nationwide jurisdiction to hear appeals in specialized cases, such as those involving patent laws and cases decided by the Court of International Trade and the Court of Federal Claims.

The jurisdiction of the federal courts

• Dual court system State courts are the real workhorses in the dual court system. In the early 1990s, state courts averaged about 90 million cases annually, compared with 270,000 in federal courts.

• Federal cases listed in Article III and Eleventh Amendment– Federal-question cases: involving U.S. Constitution, federal law, treaties – Diversity cases: involving different states, or citizens of different states

• Some cases can be tried in either court. Example: if both federal and state laws have been broken (dual sovereignty) Justified: each government has right to enact laws and neither can block prosecution out of sympathy for the accused

• State cases sometimes can be appealed to Supreme Court

• remember to hear the case, not only must the court have either federal question or diversity jurisdiction, the case must not be moot and the plaintiff must have standing

The Rule of LawCriminal Civil

Who Files Government Private person/entity

Purpose Punishment Money/injunction

What must be proved A crime has been committed by the defendant

Duty/Breach of that duty

Proof required to win Guilty Beyond Reasonable Doubt > 95%

Preponderance of Evidence > 50%

Bill of Rights Limits conduct of government officials

Does not apply

Lawyers Government Prosecutor/Private Attorney/Public Defender

Own lawyer(s) for each side

If trial by jury Usually unanimous vote Usually non-unanimous vote

Defendant’s presence in court

Required with exceptions Not required

Testimony Cannot be forced to testify Can be forced to testify

Appeal Defendant can appeal Either side can appeal

Access to and DecisionMaking in the U.S. Supreme Court

Remember Justices Decline to Hear Some 2,000 Cases . . .

The U. S. Supreme Court has two different kinds of jurisdiction. Original and appellate.

Jurisdiction is the legal authority to decide a lawsuit brought before a Court. This is the first question the Court has to decide .... does this Court have the legal authority to decide this lawsuit? If it does, it will hear and decide the case. If it does not have jurisdiction over the case to hear and decide it, it will dismiss the case.

Now, what is ORIGINAL jurisdiction? This is the kind where the Court has power to hear the case begin in it. The case starts there.

On the other hand APPELLATE jurisdiction is the legal authority to REVIEW a case begun in a lower court. If the parties are not satisfied with the decision of say the FEDERAL DISTRICT COURT they may appeal to the Circuit Court of Appeals .... this is the first level of review of the lower court's decision.

The Supreme Court is given its ORIGINAL jurisdiction by the U. S. Constitution, and in an early case, Marbury v Madison, 1 Cranch 137 (1803) the Court held that Congress cannot add to or change the ORIGINAL jurisdiction given the Court by the Constitution.

Constitution's grant of ORIGINAL JURISDICTION: ARTICLE III, SECTION 2: ...... (omitting non-relevant parts) In all cases affecting ambassadors, other public ministers and Consuls, and those in which a State shall be a party*, the Supreme Court shall have original jurisdiction (emphasis added), "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction..."

*An example of such a case is the 1998 case of State of New Jersey v. State of New York. In this case, the two states litigated the question of which state had jurisdiction over Ellis Island. "Original jurisdiction" cases are rare, with the Court hearing one or two cases each term.

So there are three ways a case can Reach the Supreme Court

Original jurisdiction

Through an appeal from a state supreme court

Through an appeal from a federal appellate court

Federal vs. State Courts

U.S. Supreme Court

U.S. Court of Appeals

U.S. District Courts

Magistrate Courts

Federal Courts

State Supreme Court

Intermediate Appellate Courts

State Courts

Trial Courts of General Jurisdiction

Lower Courts

More than half the cases the court agrees to hear are not constitutional, but statutory, presenting questions much like the one posed by Hackworth v. Progressive Casualty Insurance Company, No. 06-1300. To whom does a statute apply? Precisely what behavior does it prohibit? How does it fit with another law on the books that seems to suggest something quite different?The 73 cases the court selected for argument during the current term included 41 statutory cases, 27 that raised chiefly constitutional issues and 5 other kinds that raised issues of retroactivity and jurisdiction. (These calculations are subject to interpretation; at the margins, the categories can easily overlap, as when the court is asked to interpret a statute in such a way as to avoid a potential constitutional problem.)Statutory cases are not necessarily less challenging for the justices or less important to the country than constitutional cases; whether the Clean Air Act applies to global warming, to recall one statutory case from the current term, is a question with more impact than whether a certain type of appeal in patent cases meets the jurisdictional requirements of Article III of the Constitution, to recall another case, this time a constitutional one.

And something else to remember about the Supreme Court: it exercises BOTH judicial review AND statutory construction

The DecisionThe Supreme Court ruled that the Environmental Protection Agency has the authority to regulate heat-trapping gases in automobile emissions. The court further ruled that the agency could not sidestep its authority to regulate the greenhouse gases that contribute to global climate change unless it could provide a scientific basis for its refusal.

                                              

The Minority                     

The Majority

1) President selects potential candidates, usually with the advice from White House Counsel. 

2)      President usually interviews or meets with the candidates for the Supreme Court in private. While the public is frequently aware of these meetings, the contents of the meetings are usually not disclosed. Occasionally, the name of a nominee is unofficially leaked to the press.  

3)      The White House Counsel or other senior administration official will meet with federal judicial nominees. The president may or may not meet with a federal judicial nominee. 

4)      President submits the name(s) to the Senate. SJC is “gatekeeper” but takes vote on floor; Remember “senatorial courtesy”

5)      In some cases, interest groups will run advertisements in favor of or against a nominee, usually at the Supreme Court level. These public relations campaigns are aimed at convincing the public and the Senate to support or oppose the Supreme Court (or federal judicial) nominee.

Elite Recruitment: Nominating Federal Judges/Justices:

The process in detail:Senate Judiciary Committee holds a committee hearing in which the committee members question the nominee and other witnesses (such as friends and previous co-workers) about the nominee’s background and qualifications. These hearings are televised and segments are frequently shown on news programs. All Senators have access to transcripts and tapes of the hearings. (Before the hearing, both committee staff and the FBI will have completed an extensive background check on the nominee. This check will ensure that the nominee has paid his taxes, has not been convicted of a serious crime, is a person of good standing in his/her community, etc.) Senate Judiciary Committee, led by the chairperson, holds a vote on whether or not to recommend the nominee for confirmation. Full Senate votes on whether or not to confirm the nominee. A simple majority (51 votes or more) is required. However, filibusters by the minority party can prevent a vote on a judicial nomination from coming to the floor. In recent years, with a closely divided Senate, this has become a more common tactic used by the minority. Since it takes 60 votes to cut off a filibuster and no one party has had that many members, it is a powerful tool used by the minority party to block a nomination. Such tactics are often criticized by the majority party as unconstitutional.  If the full Senate votes to confirm by 51 votes or more, the nominee is confirmed.

Factors affecting selection of federal judges

Senatorial courtesy (not for Supreme Court!)--gives senators from a nominee's home state virtual veto

Senate judiciary committee “the gatekeeper” screen the nominees and sends a recommendation to Senate floor for approval or rejection

Senate: majority vote needed to confirm--has rejected approximately 21% this century--much more contentious since Kennedy; filibuster can stop

Political parties--generally from same party

Race--and gender

Ideology: It is difficult to ensure however; predicting future behavior is hard; new issues can arise which president did not consider;   Potential judges can refuse to answer direct questions about how they would rule on a particular case

age--since it is for life, will outlast president's term

ABA rating—Bush ends

In the United States, senatorial courtesy is the custom whereby the Senate will refuse to confirm any presidential appointments if objections are raised by eitherthe senior senator of the president's political party, or the senators from the state to which the appointment applies. Senatorial courtesy is strictly observed in connection with federal district court judgeships, U.S. attorneys, and federal marshals.

Except in rare cases, senatorial courtesy is not honored by the president or the entire Senate when the president and home state senators are of different parties.Senatorial courtesy is strictly observed in connection with federal district court judgeships, U.S. attorneys, and federal marshals. Except in rare cases, senatorial courtesy is not honored by the president or the entire Senate when the president and home state senators are of different parties.

Diversity on the Federal Courts

Characteristics of Federal District Court Appointees, Presidents Johnson-Clinton

Johnson Nixon Ford Carter Reagan Bush Clinton

SexMaleFemale

98.4%1.6%

99.4%0.6%

98.1%1.9%

85.6%14.4%

91.7%8.3%

80.4%19.6%

71.5%28.5%

RaceWhiteBlackHispanicAsianNative American

93.4%4.1%2.5%0%0%

95.5%3.4%1.1%0%0%

88.5%5.8%1.9%3.9%0%

78.7%13.9%6.9%0.5%0%

92.4%2.1%4.8%0.7%0%

89.2%6.8%4.0%0%0%

75.1%17.4%5.9%1.3%0.3%

ExperienceJudiciaryLawGovernmentOther

31.3%47.4%21.3%

0%

28.5%60.9%10.6%

0%

34.6%43.2%21.2%0%

44.6%49.9%

5%0.5%

36.9%49%

13.4%0.7%

41.9%45.9%10.8%1.4%

48.2%29.3%11.5%1.0%

PartyDemocratRepublicanIndependent

94.3%5.7%0%

7.3%92.7%

0%

21.2%78.8%

0%

91.1%4.5%4.5%

4.8%91.7%3.4%

6.1%88.5%5.4%

87.5%6.2%6.3%

NY Times October 14th, 2005

The Roberts court is, then, conservative by the standards of recent history. But is it conservative in some absolute sense?“It is fair to say that the Supreme Court both now and historically has been to the left of the American public,” said Nathaniel Persily, a law professor at Columbia and an editor of “Public Opinion and Constitutional Controversy” (Oxford, 2008). “On school prayer, for instance, the Supreme Court is far to the left of the American public,” Professor Persily said, referring to decisions saying that officials may not organize, lead or endorse prayer or devotional Bible reading in the public schools. “On racial issues, it’s pretty clear from the Michigan cases that the Supreme Court is out of step with the American public,” Professor Persily said of the pair of 2003 decisions allowing public universities to consider race in admissions decisions. (In a 2007 decision, the Roberts court leaned the other way, forbidding public school systems from explicitly taking race into account to achieve or maintain integration.)

According to The New York Times, the verb to bork might be defined as "to destroy a judicial nominee through a concerted attack on his character, background and philosophy.“ This definition stems from the history of the fight over Bork's nomination. Bork was widely lauded for his competence, but reviled for his character and philosophy.

Whole process of nomination becoming much more contentious-- "borking" is on the rise1.       During divided govt event slower2.       Senatorial courtesy practices also complicates- in fact it has the potential to shut down the nomination process in appellate court districts where no state has two senators from the party in control--that's federalism for you!3.       Process has become "tit for tat" -- when dems controlled senate they said repubs were obstruction; when repubs control senate they say dems are obstructing4.       2004 Republicans consider the “nuclear option” ie getting rid of the filibuster for judicial nominations b/c Democrats have been filibustering some of their nominees; compromise reached by (14) senators “gang of 14” (Mcain one of them--now getting flack from conservatives)

Courts as Policy Makers: Key Powers

Judicial ReviewStatutory ConstructionPower of Supreme court to overrule precedentPower to order remedies

Nature of Courts: standing, no enforcement, Principle of stare decicis, moot questions, political Questions” The doctrine that many issues (political questions) ought to be resolved by the elected branches of government is also a restraint.

Limits on the Courts

stare decicis: principle of discipline self-imposed on the judiciary. It doesn’t prevent the overruling of precedents, but it puts a heavy burden on the party seeking to have precedent overruled

Limits on the Courts: Nature of Courts

The Impact of the Lower Courts.If lower courts dislike a Supreme Court ruling, they cannot overturn it but can seek to apply it in as limited a fashion as possible.

President : power to appoint, propose amending constitution or rewriting law; propose changing size of Court or jurisdiction of Court, power to make ______ appts

Limits on the Courts . . . continued

                                                                

Bush nominates Alito for Supreme CourtUSA October 2005

Congress: senate confirmation, Congressional power to impeach and remove, Constitutional Amendment (start the process); Rewrite legislation, Redefine federal jurisdiction of the courts--entire jurisdiction for lower courts, appellate for Sup.ct. (what kinds of cases the courts will or won't have)Increase the number of courts and judges and thus the type of judges to Congress and the President likes. eg. in 1979, Congress (democratic) created 152 new District and appeals court positions--then Carter gets to appoint ;Redefine number of justices on sup.ct.

Limits on the Courts . . . continued

Supreme Court nominee Samuel Alito being sworn in during his confirmation hearing before the Senate Judiciary Committee on Capitol Hill, Monday

Public opinion—at least for Supreme Court

Limits on the Courts . . . continued

In support of Alito

Protesters marched in Washington Monday in an event organized by abortion opponents. President Bush addressed the crowd via telephone. NYT Jan 23, 2005

A group of Alaskans gathered in Washington on Wednesday in support of a $2.5 billion punitive damages award against Exxon Mobil previously upheld by a federal appeals court NYT Feb 28 2008.

In Worcester v. Georgia, the United States Supreme Court held that Cherokees were entitled to federal protection from the actions of state governments which would infringe on the tribe's sovereignty . The court ruled that the Cherokee nation was a "distinct community" with self-government "in which the laws of Georgia can have no force

The state of Georgia ignored the ruling.

This is what Jackson actually said:"the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."

Limits on the Courts “John Marshall has made his ruling; now let him enforce it”

Friends Of Health Overhaul Defend It In Federal Court CaseNov 17 2010

In case you missed it, Friday was the last day for people with something to say about the new federal health law to file briefs in the huge multistate lawsuit in Florida challenging its constitutionality.Since so many winning Republicans ran on, among other things, opposition to the law, it's not a huge shock that many of those so-called amicus filings came from prominent GOPers seeking to add their two cents to the charge that the law exceeded Congress' authority.

The Argument over Interpretation of the Constitution

 Original Intent:   Judges and justices should determine and apply the original intent of the framers; Reagan's Attorney general, Edwin Meese, "A jurisprudence of original intent is not difficult to describe. Where the language of the Constitution is specific, it must be obeyed, Where there is a demonstrable consensus among the framers and ratifiers as to a principle stated or implied by the Constitution, it should be followed. Where there is ambiguity as to the precise meaning or reach of a constitutional provision, it should be interpreted and applied in a manner so as to at least not contradict the text of the Constitution itself."

Justice Antonin Scalia said: "The Constitution is not a living organism. It is a legal document. It says some things and doesn't say others.“

Constitution is a flexible document that should be interpreted in the context of the contemporary world. In response to Meese's view, Justice Brennan called the attorney general "arrogant" and "doctrinaire" stating that "it is impossible to gauge accurately the intent of the framer's on the application of principle to specific, contemporary questions." He and others maintained that what appears to be deference to the intentions of the framers is just a cover up for conservative decisions. They pointed out that trying to guess or reconstruct the framer's intentions is very difficult. Most of the issues today derive from a world the framers could not even comprehend--school bussing, the Internet, wiretapping etc. Furthermore, there is often no record of the framers intentions as a whole; they embraced general principles, not specific solutions and they often disagreed. According to Brennan, the Supreme Court must apply the Constitution in a contemporary context, and adapt it to present needs--the Constitution was never intended to preserve a "pre-existing society" but to "put into place new principles that the prior political community had not sufficiently recognized.

Versus “contemporary meaning:

Justice Ruth Bader Ginsburg is shown speaking in Ohio last week. In a speech last month in South Africa, she discussed what she called "dynamic versus static, frozen-in-time constitutional interpretation."

As he saw it, "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs. What the constitutional fundamentals meant to the wisdom of other times cannot be their measure to the vision of our times."

What is the correlation between ideology and original vs contemporary meaning?

Contrast that to Judicial Activism vs Judicial Restraint

Judicial activism: the philosophy that courts should take an active role in solving social, economical and political problems

Judicial restraint: philosophy that the courts should play minimal policy making roles, and allow the states and the other 2 branches of the fed. govt. to solve social, economic and political problems. One measure is the number of laws declared unconstitutional. Proponents emphasize that federal judges are unelected and so removed from popular control. They point out also that judges are trained as lawyers, expert in defining rights and duties, but not is designing complex institutions

Both liberals and conservatives accuse the court of judicial activism

Post WWII Courts: Warren 1953-1969 an activist court that was . . .The most liberal court

Rights of defendants • Brennon: “a civilization should be judged by

the treatment of its outsiders”• used _____ _____clause of 14th amendment to

apply rights in B of Rights to states

Mapp v Ohio (exclusionary rule applied to states)GideonEscobedo (right to remain silent)Miranda

Brown vs Board of Education 1954

.

Almighty God, we acknowledge our dependence upon thee, and we beg Thy blessings upon us, our parents, our teachers and our Country

Happy members of the group that challenged New York's daily prayer in Engel v Vitale.

First Amendment: Engle v. Vitale 1962 (no school prayer)—solid wall

Apportionment: Baker v Carr--tells states how to draw lines

Privacy: Griswold v. Connecticut--created from "penumbras“

Post WWII Courts . . . Continued Burger court--69-86-

    

More conservative than Warren BUT had some significantly liberal decisions: Nixon had 4 appointees--helped some but pres. always get surprises

When Associate Justice Sandra Day O’Connor took her seat on the Burger Court in 1981, she was the first woman to serve on the Supreme Court of the United States. She retired on January 31, 2006

Defendant's rights: weakened exclusionary rule:

Affirmative Action– • Bakke--says quotas are

not ok, but race can be a factor but . .

• US Steelworker v. Weber, court found that Kaiser aluminum's special training program, which employed a quota for minorities was ok as a means to rectify past discrimination

.

Limits on exec: U.S. v Nixon--unanimous no exec. priv in criminal case

Free speech: Buckly v Valheo

Women's issues: Reed--fist time unconstitutional because of gender (probate giving male preference as administrator); Craig v Boren (drink age) medium scrutiny   Abortion: Roe v. Wade 1973

Post WWII Courts . . . continued

Rehnquist court –1986-2006

states rights

stuck down many laws passed by Congress: • RFRA (Religious Freedom Restoration Act

struck down), • gun free zone act US v Lopez (struck down), • Brady Bill in Printz (struck down background

check requirement of Brady bill), • Violence Against Women Protection act • ADA when used by state employees:

University of Alabama v. Garrett barred state employees form using the provision of the ADA.

Morrison Morrison

How? 10th amendment (states rights) 11th amendment (state can't be sued) and DISALLOWS use of commerce clause and 14th amendment (which gives Congress power to enforce provisions of 14th amendment). .

Also uses an open-ended concept of state immunity that sees it as an aspect of the states' "dignity" as "sovereign entities" rather than anchored in the actual constitutional text

Later, seemed to take a more pragmatic approach: Tennessee v. Lane 5/4 (courthouse access) ; and Nevada Department of Human Resources v. Hibbs 2003 : states can be sued under FMLA because the law was” an appropriate exercise of Congressional power to combat stereotypes about female workers' domestic responsibilities and "thereby dismantle persisting gender-based barriers" facing women in the workplace." (6/3);

Medical Marijuana case said federal power to regulate commerce trumped state laws

Defendant's rights: more power to police:

• forced confession not necessarily invalid,• can search a passenger's purse or peek through window blinds

(though can't squeeze packages on a bus and can't search a driver on a routine traffic violation).

• Police officers do not have to inform bus passengers of right to refuse permission to be searched; a series of non-legal circumstances can lead an officer to stop a van he feel suspicious ('totality of circumstances);

• no student privacy interest in freedom from drug testing (all after school activities)

Rehnquist Continued:

Rehnquist Continued:

Affirmative action--gets strict scrutiny--Adarand Construction v Pena BUT: Michigan affirmative action case—AA is ok, if narrowly tailored—b/c diversity can be a compelling state interest—5/4 decision;

Abortion rights Casey changes strict scrutiny to undue burden Webster no funds ok, Rust--gag rule ok

Rehnquist court continued: Church and state "chinks in the wall“

• Voucher decision "brought to fruition Rehnquist’s 29-year effort to get the court to accept the concept that a government benefit offered neutrally to religions and secular institutions, with the money following choices made by private individuals, did not violate the First Amendment's prohibition against the "establishment of religion.". 5/4 decision

Rosenberger v University of Virginia and Agostini v Felton (state aid ok in remedial Ed as long as state does not endorse and there is no religious content) Lambs Chapel (if rent to public groups, have to include churches) And in 2001 the Court ruled that schools must permit an evangelical religious group to meet after school (even if it was proselytizing) on school grounds if it was permitting other groups to do so (Good News Club v. Milford Central School).

but no student led prayers at football games Santa Fe School District v. Doe. (June 19, 2000) (violate dp clause) and Locke v. Davey— a state does not violate the const. if it chooses not to give scholarships to fund theology students, but does fund other students, it

Rehnquist court continued

Right of association--boy scouts case Boy Scouts of Am. vs. Dale The Court held that requiring the Boy Scouts to accept respondent as a member violated their First Amendment right of expressive association. It further concluded that the state interests embodied in New Jersey’s public accommodations law did not justify such a severe intrusion on the freedom of expressive association.

Sep of power--RFRA and Morrison v Olson (Ind. counsel ok even though Reagan said it was unconstitutional because it is the function of the executive branch to initiate and conduct criminal prosecution), line item veto shifts too much power to pres.; Hamdi—exec doesn’t have “blank check” in times of war

Justices posed Monday at the Supreme Court building for the first photograph of the Roberts court. From left, Ruth Bader Ginsburg, David H. Souter, Antonin Scalia, John Paul Stevens, Chief Justice John G. Roberts Jr., Sandra Day O'Connor, Anthony M. Kennedy, Clarence Thomas and Stephen G. Breyer.

The Roberts Court 2005-2006