The Judiciary

AP U.S. Government and Politics

The current U.S. Supreme Court, from left, is made up of Justices Sonia Sotomayor (top left), Stephen G. Breyer, Samuel A. Alito Jr., Elena Kagan, Clarence Thomas (bottom left), Antonin Scalia, John G. Roberts Jr., Anthony M. Kennedy and Ruth Bader Ginsburg.

Roots of the Federal Judiciary• Article III of U.S. Constitution defines the Judiciary.– The Constitution doesn’t mention judicial review, making it

an implied power of the judiciary.• Judicial review, which was established by the Marshall Court,

allows the judiciary to review the acts of the other branches of government and the state.– Marbury v. Madison (1803) established the principle of judicial review

pertaining to the national government.– Martin v. Hunter’s Lessee (1816) gave the Supreme Court authority over

state courts in matters of federal law.

– The Judiciary Act of 1789 established the basic three-tiered structure of the federal court system.• Federal district courts, circuit courts (known today as courts of

appeals), Supreme Court of the United States.

• The power and influence of the Supreme Court has grown throughout U.S. history.– Chisholm v. Georgia (1793) determined the Court’s

jurisdiction to include hearing suits brought by a citizen against a state in which he did not reside.• This was unthinkable to anti-Federalists, who defended state

sovereignty.

• John Marshall brought respect and prestige to the Supreme Court.

• Marshall believed that the Court needed to speak as one, not in a series of different opinions.• The Marshall Court established the authority of the Supreme

Court over judiciaries of the individual states.

• The Marshall Court established the supremacy of the federal government over state governments through a broad interpretation of the “necessary and proper” clause.– McCulloch v. Maryland (1819)

John Marshall’s court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches.

The Federal Judicial System• All federal judges are nominated by president and

confirmed by Senate.– There are no age, residency, or citizenship restrictions for

judges.– According to the Constitution they “hold their offices during

good behavior.” • They serve until they die or retire, unless impeached.• Only a handful of low-level judges were ever impeached and

removed from office.– Alexander Hamilton felt lifetime appointments would free

judges of political allegiance (Federalist No. 78).• This makes many consider the courts “undemocratic” when

compared to other branches of government.

Structure of the U.S. Federal Judicial System

The Supreme Court• The Supreme Court is made up of eight associate

justices and one chief justice.– Article III of Constitution grants is both original and appellate

jurisdiction.• Jurisdiction – a court’s authority to hear cases of a particular kind.• Original jurisdiction – The authority of a court to be the first to

hear a case.• Appellate jurisdiction – the authority of a court to review cases

that have been decided in lower courts and are appealed to it by the losing party.– They don’t retry cases, rather determine whether the lower court acted in

accordance with applicable law.

– Most Supreme Court cases are appellate.

Selecting and Deciding Cases• The Supreme Courts power is most apparent when

declaring another institution’s actions to be unconstitutional.– The Supreme Court’s main function is to establish legal

precedents to guide lower courts.• Precedent – judicial decision that serves as a rule for settling

subsequent cases of a similar nature.– Lower courts are expected to follow precedents.

• The Supreme Court selects a very small percentage of requested cases to hear.– The Rule of Four states that if at least four judges agree to

hear a case, the Supreme Court will issue a writ of certiorari.

• A writ of certiorari is a request to a lower court to submit to the Supreme Court a record of the case.• Several factors influence if the Supreme Court will hear a case

including justices’ ideologies and the economic or social impact of a case.

– If the court decides to hear a case, attorneys and other interested parties file amicus curiae “friend of the court” briefs.• During a S.C. hearing, attorneys for each side present oral

arguments (usually limited to 30 minutes) and written briefs.• The oral session is followed by the judicial conference, a closed

meeting where the nine justices discuss and vote on the case.– After a case has been decided, the court issues its ruling,

which consists of a decision and one or more opinions.

• The decision indicates which party the court sides with and by how large a margin.• The opinion explains the legal basis for the decision.

– Supreme Court opinion is expected to guide lower courts’ opinions.

– Several types of opinions can be issued by the Supreme Court.• A unanimous opinion occurs when all of the justices agree on a

case and for the same reasons.• A majority opinion is the opinion that results when a majority

of the judges are in agreement on the legal basis of the decision.– This is the most common type of opinion.

• A plurality opinion is when a majority of justices agree on a decision, but don’t agree on the legal basis for the decision.

• A concurring opinion is a separate opinion written by one or more justices who vote with the majority but disagree with its reasoning.• A dissenting opinion is written by one or more justices who do

not agree with the majority and explains the reasons for dissent.– Dissenting opinions often provide an argument for overturning an

opinion in the future.

Other Federal CourtsU.S. District Courts• The lowest federal courts are the district courts.– 94 total – at least one in every state, as many as 4 in some

states.• Each district includes several judges, but most individual trials are

presided over by a single judge.– Federal district courts are the chief trial courts of the federal

system.– They hear many types of cases including federal criminal cases, civil cases

that allege a violation of national law, cases brought against the national government, and civil cases among citizens of different states.

– Lower Courts rely on and follow Supreme Court decisions in their own rulings.

– Hutto v. Davis (1982) – “Unless we wish anarchy to prevail within the federal judicial system, a precedent of this court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”

• Most federal cases end with the district court’s decision, not many are appealed to a higher court.

U.S. Courts of Appeals• Cases appealed from federal courts go onto U.S. Courts of

Appeals.– Courts of appeals do not use juries and new evidence is not

submitted.– Appellate courts base their decisions on review of a lower

court’s errors.• Appellate judges act as supervisors in the legal system as they

review court decisions and correct legal errors.

• There are 13 U.S. courts of appeals.– 11 have control over a “circuit”, one over D.C., and one over patents

and international trade.

• Most appellate cases are heard by a panel of three judges.• Each circuit is monitored by a Supreme Court Justice, who

takes the lead in appeals originating in that circuit.– Overall, the Supreme Court hears less than one percent of

cases heard by federal appellate courts.

Special U.S. Courts• There are several specialty courts in the U.S.

• The U.S. Claims Court – hears cases where the government in being sued for damages.• The U.S. Court of International Trade – handles cases involving

appeals of U.S. Customs Office Rulings.

• The U.S. Court of Military Appeals – hears appeals of military courts-martial.

The State Courts• Each state has its own court system.– States decide the structure of the court system and how

judges are selected.– Over 95% of court cases occur at the state or local level.• Most cases arising under criminal law (acts defined as illegal by

the government) and civil law (which governs relations with and between private parties) are defined by state laws and therefore are settled in state or local courts.

– Individuals can only appeal to a federal court if state authorities violated a right protected by the Constitution.

Judicial Nomination/Appointment• Appointments to Supreme Court and lower federal

courts are made by President and confirmed by Senate.– Judges are appointed for life to try to make them as

impartial as possible.– Judges bring their political views to the Courtroom and have

opportunities to promote their political beliefs through cases they decide.• The process by which federal judges are selected is a partisan

one.

• Supreme Court nomination is a significant opportunity for the president.

– Most justices serve lengthy terms, allowing presidents to influence judicial policy long after they leave office.

– Presidents usually appoint judges who have a compatible political philosophy.• Although justices are free to make their own decisions, their legal

positions can usually be predicted from their background.– The president must also take into account a nominee’s

acceptability to others.• Every nominee is scrutinized by the legal community, media, and

interest groups.• Nominees must undergo background checks by the FBI and gain

approval of a Senate majority.• The Senate Judiciary committee conducts hearings on judicial

nominees and recommends their confirmation or rejection by the full Senate.

Lower Court Nominees• The president usually delegates to the deputy

attorney general the task of identifying nominees for lower-court judgeships.– This process includes seeking recommendations U.S.

Senators (and sometimes House members) of the president's party.

– Senatorial Courtesy - a Senator from the state in which a vacancy has arisen should be consulted on the choice of nominee, if the Senator is of the president’s party.• If not consulted, the Senator can request that the confirmation

be denied – other senators usually grant this request as a courtesy to their colleague.

– Although the president is not as personally involved in selecting lower court nominees, lower-court appointments are still significant.• A president who serves 2 terms can shape the Judiciary for years to

come.– G.W. Bush and Clinton each appointed about 1/3 of federal judges in their

terms.

• Presidents typically (about 90% of the time) select members of their own party for lower-court appointments.– Judges are less likely to engage in blatant partisanship.

Makeup of the Judiciary– White males are overrepresented in the judicial branch.

• Women and minorities appointed to federal judgeships has grown significantly over the past few decades.

• Democratic presidents are more likely to appoint women and minorities to federal judgeships.

– The Supreme Court is more diverse.• Three women, two minority group members.

– Thurgood Marshall – first African-American Supreme Court Justice.

– Sandra Day O’Connor – first woman justice.– Sonia Sotomayor – first Hispanic.

Judicial Decision Making• Federal judges make their decisions in the context of

the law, which can limit their discretion.

• The judiciary works within the three main sources of law: the Constitution, legislative statutes, and legal precedents.– The Constitution is the nation’s highest law, and justices are

sworn to uphold it.– The majority of cases that arise in the courts involve issues of

statutory and administrative law.• Statutory law is legislative law, while administrative law consists of

rules and regulations made by agencies in the process of implementing and enforcing statutory law.

– The U.S. legal system is based on the principle that a court’s decision should be consistent with previous judicial rulings.• This principle, known as precedent, reflects the philosophy of stare

decisis (Latin for “to stand by things that have been decided”).

Political Influence on Judicial Decisions• The judiciary has the difficult task of interpreting the

Constitution and statutory law.– The judiciary is required to determine what language means in

the context of a specific case.• Judges’ political beliefs also impact the way case is decided.– In most cases, justices will vote in line with their political

attitudes.– Partisanship was especially evident in Bush v. Gore (2000), in

which the Supreme Court blocked a manual recount of Florida, assuring George W. Bush the presidency.• The 5 Republican nominated justices voted in Bush’s favor, with the 4

Democrat appointed justices opposing.

• The judiciary must also take into consideration the opinions of the general public, interest groups, and elected officials.– The Supreme Court has tempered some of its rulings to

reduce public resistance.• Brown v. Board of Education (1954) – desegregation take place

“with all deliberate speed.”– Interest groups can also influence the judiciary.• Groups petition the White House and Congress to appoint

judges who share their outlook on legal disputes.• Groups also file amicus curiae briefs to make their positions

known on issues and try to advance their policy goals.

– Elected officials also have ways of influencing the courts.• Congress can rewrite legislation it feels the judiciary has

misinterpreted.• The president is responsible for enforcing court decisions.• Judicial appointments give the president and Congress their

best opportunities to influence the courts.

Judicial Power in Democratic Government

• The judiciary’s power has been a source of controversy through the nation’s history.– The judiciary has, at times, acted almost legislatively by

addressing controversial social issues.– The courts have become more extensively involved in

policymaking due to increasing numbers of regulations.• Ex. Environmental pollution was not a major issue until the

1960s, now it is the subject of many court cases.– Several theories exist on the role the judiciary should take

in interpreting the Constitution.

Philosophical Approaches to Judicial Review– Originalism Theory – also called strict constructionism, is a

method of interpreting the Constitution that emphasizes the meaning of its words at the time they were written.• Prominent philosophy of Conservatives.• Believe that the Constitution is not open to interpretation.

– Living Constitution Theory – also called broad constructionism, a method of interpreting the Constitution that emphasizes the principles it embodies and their application to changing circumstances and needs.• More popular among liberals.• Believe that the Constitution is a “living” document and needs

to change with the times.

Judicial Restraint vs. Judicial Activism– Judicial Restraint – Doctrine that the judiciary should

follow closely the wording of the law, be highly respectful of precedent, and defer to the judgment of legislatures. The doctrine claims that the job of the judges is to work within the confines of the laws set down by tradition and lawmaking majorities.• Proponents believe that since judges are not elected, they

should defer to the legislature, which represents the interests of the people.• Example: Associate Justice Oliver Wendell Holmes, Jr. – felt

judiciary should defer to elected branches unless they blatantly overstepped their authority.

– Judicial Activism – The doctrine that the courts should develop new legal principles when judges see a compelling need, even if this action places them in conflict with precedent or the policy decisions of elected officials.• Proponents believe that judges should use judicial review to

play a co-equal role with the other two branches of government.• Example – John Marshall – used the Supreme Court to enlarge

the judiciary’s power and claimed the power of judicial review in Marbury v. Madison.

Checks on Judicial Power

• There are several important checks on judicial power.– The Judiciary has no enforcement tools – it depends on the

executive and legislative branches to implement its decisions.– All federal justices are nominated by president and confirmed by the

Senate.– Justices can be impeached by Congress.– Congress can propose amendments to the Constitution or rewrite

laws that have been struck down by the Courts.– Public opinion also can help check the judicial branch.

• As public opinion on an issue changes, Supreme Court rulings can change to reflect this.

– Courts also check themselves by deferring to national laws and precedents, or by refusing to hear cases they believe should be resolved by the executive or legislative branches.