The Federal Judiciary

The Federal Judiciary

• There is hardly a political question in the United States which does not sooner or later turn into a judicial one

•Alexis de Tocqueville

The Federal Judiciary

•Why are our courts so influential?• Judicial Review–The power of the courts to declare

state or federal laws in violation of the Constitution (Marbury v. Madison – 1803)

The Federal Judiciary

• Read Article III of the Constitution• Who creates the “inferior courts” below the Supreme

Court?• What is the term of office for federal judges? • Under what conditions do they remain in office?• What are the constitutional qualifications to become a

federal judge?• Which cases go straight to the Supreme Court (Original

Jurisdiction)?• What crime is defined in Article III?

Hamilton in Federalist 78

• The least dangerous of the three branches

• The judiciary, on the contrary, has no influence over either the sword or the purse

• The interpretation of the laws is the proper and peculiar province of the courts

The Judiciary Act (1789)

• Created our current 3-tiered structure of the federal courts

• The Supreme Court• Circuit Courts (aka Courts of Appeal)

• District Courts

Marbury v. Madison (1803)

• Chief Justice John Marshall wrote the 5-0 decision declaring a portion of the Judiciary Act in violation of the Constitution

• Established the courts as the interpreters of the law (JUDICIAL REVIEW)

• Was not used again until Scott v. Sanford in 1857 – The Dred Scott Decision

Judicial Activism vs. Judicial Restraint

• Critics of judicial review say judges sometimes make decisions reflecting their own policy preferences

• This is called JUDICIAL ACTIVISM• They believe that judges should always look to

the “original intent” of the founders when making decisions – A strict construction of the Constitution

• This is called JUDICIAL RESTRAINT

Judicial Activism vs. Judicial Restraint

• Others argue that the founders purposely were vague in their wording

• They did not have a single common intent and even if they did we should not be bound by it

• The world has changed in ways the founders could not have envisioned

• The Constitution should change to meet changing times (a “living” constitution)

The U.S. District Courts

The Circuit Courts

U.S. District Courts

• Each state has at least 1; 4 in Texas• The basic trial courts in the federal system (with

juries)• Civil Cases– Lawsuits, one person sues another or an organization

• Criminal Cases– The government prosecutes someone for violating a

federal criminal statute (law)– ***Only about 10% of criminal cases (most are in state

courts)

U.S. District Courts

• Within the Justice Department a U.S. Attorney is the chief federal prosecutor in each of the 94 districts

• Appointed by the President and confirmed by the Senate (majority vote)

• Plaintiff – in civil cases, the party initiating the lawsuit; in criminal cases, the accuser

• Defendant – in civil cases, the person having the lawsuit brought against them; in criminal cases, the accused

Burden of Proof

• In a civil case, the plaintiff is required to prove “a preponderance of the evidence” in their favor (the needle tilts in their direction)

• In a criminal case, the burden is much higher• “Beyond a reasonable doubt”– Does not mean no doubt whatsoever– Convinced the defendant is guilty (not

necessarily 100%)– If not convinced, reasonable doubt exists

The Circuit Courts (The Courts of Appeal)

• There are 12 regions, each served by a circuit court• There is a 13th Court of Appeal for the Federal

Circuit located in Washington, D.C.• Each court has a panel of judges that preside over

cases (no juries)• Has appellate jurisdiction• The vast majority of federal cases end in one of the

circuit courts and do NOT make it to the Supreme Court

The Circuit Courts

The Supreme Court

The Supreme Court

• Congress establishes the size of the court which is currently 9 (since 1869)

• Judges on the Supreme Court are called JUSTICES

• One Chief Justice • 8 Associate Justices

Chief Justice John Roberts

Appointed by President George W. Bush

2005 At age 50 Harvard Law

School 78-22

Antonin Scalia

Appointed by President Ronald Reagan

1986 At age 50 Harvard Law

School 98-0

Anthony Kennedy

Appointed by President Reagan

1988 At age 52 Harvard Law

School 97-0

Clarence Thomas Appointed by

President George H.W. Bush

1991 At age 43 Yale Law

School 52-48

The Thomas Hearings

A former associate and Oklahoma law professor, Anita Hill, accused Thomas of sexual harassment

An all-male Senate Judiciary Committee clumsily dealt with the issues

Thomas was confirmed 52-48

Ruth Bader Ginsberg

Appointed by President Clinton

1993 At age 60 Columbia Law 97-3

Stephen Breyer

Appointed by President Clinton

1994 At age 56 Harvard Law

School 87-9

Samuel A. Alito Jr.

Appointed by President George W. Bush

2006 At age 55 Yale Law School 58-42

Sonia Sotomayor

Appointed by President Obama

2009 At age 55 Yale Law School 68-31

Elena Kagan

Appointed by President Obama

2010 At age 50 Harvard Law

School 63-37

The Supreme Court

It is the court of LAST RESORT Has final say on questions concerning the

meaning of the Constitution Mostly Appellate Jurisdiction (from State

Supreme Courts and the Circuit Courts) Original Jurisdiction

• Cases involving a State• Cases dealing with

ambassadors/diplomats

The Supreme Court

Supreme Court decisions carry the weight of law

Only 2 ways to reverse/change a Supreme Court decision• Add an amendment to the Constitution• The Supreme Court issues a different

decision in a later case (Plessy v. Ferguson (1896)…Brown v. Board of Education (1954))

How Cases Reach the Court

10,000 cases a year appealed to the Court

The Court only decides about 75-80 cases a year

The Rule of Four• 4 of the 9 Justices must agree in order to

accept an appeal

How Cases Reach the Court

The Writ of Certiorari (Cert.)• Sersh-uh-rare-ee• An order from the Supreme Court to a

lower court to send up the records in a particular case so the Court can review it

• To appeal a case to the Court, a plaintiff or defendant must apply for a writ of certiorari

The court “grants cert.” or “denies cert.”

How the Court Operates

First Monday in October through June or July

They consider cases in two week cycles (2 weeks of listening to arguments, followed by a period where they make decisions)

How the Court Operates

Briefs – Written documents filed with the court before the oral arguments begin (Plaintiff and Defendant lawyers)

Put forth the written arguments of both sides in the case

How the Court Operates

Amicus Curiae Briefs Translates to “Friend of the Court” ***Briefs written by interested parties

that are NOT directly part of the case The Court requests them or approves

them Example – NRA files a brief in a case

dealing with gun control laws

How the Court Operates

Lawyers provide ORAL ARGUMENTS 30 minute presentations to the 9

Justices Stand at a podium White light after 25 minutes Red light after 30 Justices often interrupt with

questions of their own

The Solicitor General

Part of the Justice DepartmentRepresents the U.S. Government

if involved in a Supreme Court case

Determines the government’s argument as well as what cases to appeal to the Court

Solicitor General

Donald Verrilli (replaced Elena Kagan after she was nominated to the Supreme Court)

Discussing Oral Arguments and Briefs

Done privately by the 9 Justices Chief Justice presides and speaks

first Each Associate summarizes their

views in order of seniority Then debate begins 1/3 of all decisions are unanimous 8-1, 7-2, 6-3, 5-4

Opinions

Majority OpinionConcurring Opinion

Dissenting Opinion

Majority Opinion

Written reasoning explaining why the majority ruled the way that they did

Chief Justice determines who will write this if part of the majority

Concurring Opinion

When a member of the majority disagrees with the majority opinion

A different opinion giving an alternative line of reasoning

Dissenting Opinion

Written to express the views of the minority in a case

Dissenting opinions can later become the view of the majority (when a decision is reversed at a later date)

Relevant Vocab

Senatorial Courtesy• When a vacancy opens on a federal court,

The President consults the senators from the state where the vacancy occurs

Stare Decisis • Latin for “to stand by things decided”• The Court’s tendency to respect and

adhere to precedent (previous decisions)• Let the lower court decision stand