The Judicial Branch: Constitution, Politics, and Process

1. Chapter 10 The Judicial Branch

2. Bell Ringer #1 • Identify two provisions in the United States Constitution that were intended to shield the judiciary from electoral politics.

4. Constitution and SC • Article III • “one supreme Court and inferior Courts” • Inferior courts controlled by Congress • Judicial Review: power of courts to review acts of other branches and the states • Marbury v. Madison (1803)

5. More Constitution and SC • Article I charges the Chief Justice as presiding officer in impeachment of president/VP • Justice appointed for life with “good behavior” • NO Constitutional requirements • Above the fray of politics…

6. Establishment of the Court • Created by the Judiciary Act of 1789 • Constitutional Convention literally could not figure out what they wanted the Court to look like, so they put it off and let Congress deal with it.

7. Chisholm v. Georgia (1793) • Supreme Court’s jurisdiction included the right to hear suits brought by a citizen of one state against another state. • 11th Amendment followed (1798)

8. The Marshall Court • Established supremacy of national government over state governments • Broad interpretation of Necessary & Proper Clause • McCulloch v. Maryland • Gibbons v. Ogden • Marbury v. Madison 1803: court case which established judicial review

9. Bell Ringer #2 • Identify two ways electoral politics affect the federal judiciary.

10. Criminal and Civil Law • Criminal law enforced by state and national governments • Guilt determined by jury • Civil law regulates relationships between individuals and companies • Usually settled out of court or by a judge • Plaintiff and defendant

11. American Legal System • 1 Supreme Court • Appellate and original jurisdiction • 12 Court of Appeals (aka appellate courts) • Appellate jurisdiction • 94 District courts (aka trial courts) • Original jurisdiction

13. United States District Courts • 94 District Courts • Every state has at least 1 district court • Original jurisdiction • Jury determines innocence or guilt • U.S. attorney in each district is that district’s chief law enforcement officer

15. Courts of Appeals • Hear no new testimony (Appellate Jurisdiction) • Decided by a judge or panel of • Responsible for reviewing previous court decisions • Stare decisis (let the decision stand) • Reliance on past decisions or precedents • Allows for continuity and predictability in judicial system

16. Supreme Court • Must decide on “Was a constitutional right violated in the case?” • Original and Appellate jurisdiction • In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.

17. How Federal Court Judges Are Selected • All Federal Court Judges are nominated by the President • “Provide a president with opportunity to put his philosophical stamp on the Court” (p. 359) • Confirmed by majority vote in the Senate • Senatorial courtesy: presidents defer selection of district court judges to the senators of their party in that state • NO constitutional requirements to become a justice

18. Nomination Criteria • Competence: Judicial or government experience • Ideology or Policy Preferences: Presidents want like-minded justices

19. Supreme Court Confirmation Process • Possible list sent to the FBI before an official nomination is made • Nomination will be referred to the Senate Judiciary Committee • Conducts investigations, hearings, and votes on its recommendation for Senate action. • Lobbying for the confirmation/rejection by Interest Groups • Liberal Interest Groups launching full blown campaign against nominee Robert Bork • Liberal Interest Groups led to the delay of a hearing on the nomination of Miguel Estrada, leading to his withdrawl

20. Senate Committee Hearings and Senate Vote • After hearings and investigations, Senate Judiciary Committee makes a recommendation to the full Senate • Most rejections are a result of the Judicary Committees disapproval of a nominee

21. Deciding to Hear a Case • Original and Appellate Jurisdiction • 3-5 original jurisdiction cases per year • 70-80 appellate jurisdiction cases per year • In 2011 there were almost 8,000 cases appealed • 73 were decided • Most all cases arrive to the Supreme Court due to a writ of certiorari • Writ of certiorari: request of the Supreme Court to order up the records from a lower court to review the case • < 5% of cases appealed to SC are granted writ of certiorari

22. Rule of Four • Supreme Court controls its own caseload, deciding which cases it wants to hear and rejecting most cases which come to it • All petitions for certiorari must meet two criteria: • Arrive via a district court, court of appeals, or a state court of last resort • Case must involve a federal question

23. How does a case survive the process? • Conflict among district or circuit courts • Interest group participation • More participation in cases involving civil rights and or liberties • Interest groups file amicus curiae to urge the courts to hear a case or deny it certiorari

24. Writing Opinions Majority opinion: written to reflect the views of the majority Concurring opinion: written by a justice or justices who agree with the outcome but not the legal rationale for the decision Dissenting opinion: written by a justice who disagrees with the majority opinion

25. Judicial Philosophy and Decision Making • Judicial restraint and judicial activism • Advocates of judicial restraint argue that courts should allow the decisions of other branches to stand, even when they offend a judge’s own sense of principles (Strict constructionists) • Judicial activism is the philosophy where judges should use their power broadly to further justice, especially in the areas of equality and liberty

26. Judicial Policy Making • Courts can affect policy by declaring laws unconstitutional (judicial review) • Supreme Court also has the power to overrule itself • Brown v. Board of Education overruled Plessy v. Ferguson

27. Implementing Court Decisions • All courts rely on other units of government to carry out their directives. • Congress or president can choose not to carry out a decision by underfunding programs needed to implement a decision or seek lax enforcement. • Judicial implementation refers to how and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to the lawsuit.