The Judicial Branch

1. The Judicial Branch

2. United States v other nations • Only in the U.S. do judges play such a large role in policy-making. • Judicial Review- the right of federal courts to rule on the constitutionality of laws and executive actions. • It’s the #1 judicial weapon in the checks and balances system.

3. How to interpret the Constitution? • There is much debate on how the Constitution should be interpreted: • 1) Strict constructionists- judges are bound by the wording of Constitution. (narrowly interpret) • 2) Activist- judges should look to the underlying principles of the Constitution. (broadly interpret).

4. Precedents • Definition- When judges rule on cases by using the decisions of previous judges. • Also known as Stare Decisis- “Let the decision stand.”

5. The History of the Federal Judiciary • Most founders probably expected judicial review but did not anticipate the courts to have such a large role in policy-making. • Hamilton - Federalist #78- the independence of judges is essential to a democracy. • He believed the courts to be the least dangerous of the three branches.

6. National Supremacy and Slavery 1789-1861 • Marbury v Madison (1803) • McCulloch v. Maryland (1819) • Gibbons v. Ogden (1824)- interstate commerce clause strengthened (under authority of federal government). • Dred Scott v. Sanford (1857)- Blacks could not become free citizens of the U.S.

7. Government & the Economy 1865-1936 • Dominant issue: Could the federal government regulate the economy? • Private property protected by the 14th amendment. • Narrow interpretation of 14th and 15th amendments in relation to blacks allowing segregation (Plessy v Feruson (1896), excluded blacks from voting in many states.

8. Government & political liberty (1936-present) • Court establishes tradition of deferring to the legislature in economic regulation cases. • Courts shift attention to personal liberties as is active in defining rights. • Warren Court- liberal protection of rights and liberties against government trespass. • 1992- Court rules that states have the right to resist some federal action.

9. Federal Courts Structure • Two kinds of federal courts were created by Congress to handle cases that the Supreme Court does not need to decide. • 1) Constitutional Courts- exercise judicial powers found in Article III • Judges serve for life, with good behavior • Salaries not reduced while in office • Appointed by prez, confirmed by Senate

10. Constitutional Courts • District Courts- (94)- • At least 1 in each state • Trial courts of the federal system • Single judge and jury present. Circuit Court of Appeals (12) appellate court located regionally panel of 3 judges

11. Circuit Court of Appeals • Decisions appealed to the US Supreme Court. • Over 8000 decisions get appealed in a calendar year. • Most get denied. When this happens, the decision is REMANDED back to the lower court, which means the circuit court decision stands. • Circuit Court decisions are usually the court of last resort for most cases.

12. Selecting Judges • All constitutional court judges are nominated by the president and confirmed by the Senate, on recommendation from the Senate Judiciary Committee. • Senatorial Courtesy usually employed for district judges.

13. The Litmus Test • Presidents seek judges who share an ideology similar to their own. • Greatest impact on court decisions is ideology. • Litmus test during Reagan/Bush administrations was pro-life.

14. Jurisdiction of Courts • Dual court system- state courts and federal courts have their own jurisdiction. • Federal cases listed in Article III and the 11th Amendment. • Federal question cases: involving US Constitution, federal law and treaties. • Also cases involving different states or citizens of different states.

15. Federal or State Court? • Some cases can be tried at either level. • Example: if both federal and state laws have been broken. (dual sovereignty) • State cases can sometimes be appealed to the Supreme Court….a federal question must be raised.

16. Route to the Supreme Court • Most federal cases begin in district court, then are appealed to circuit court. • Supreme Court picks which cases it wants to hear. Rule of Four- 4 justices agree to hear case, then issue a writ of certiorari • Usually pick cases that deal with: • 1) significant federal or constitutional question • 2) conflicting decisions by circuit courts • 3) constitutional interpretation by a high state court, about state or federal law.

17. Going Supreme!! • About 8000 requests for certiorari are submitted, the Supreme Court usually limits its DOCKET to no more than 100 cases in a year. • The Supreme Court sometimes hears cases on original jurisdiction: • 1) when a foreign ambassador is named in a case • 2) when a state is named in a case • 3) when maritime/admirality law is involved.

18. Supreme Court in Action • Each side has an 1/2 hour for oral arguments, including interruptions for questions by justices. • Briefs are submitted by each side and friends of the court - amicus curiae briefs. • Solicitor general- 10th justice

19. Conference Procedures • Judges meet in chambers. • Chief Justice speaks first, votes last • Selection of opinion writer • Types of opinions: • 1) per curiam- brief and unsigned • 2) majority opinion- official decision • 3) concurring opinion- agree, but for different reason • 4) Dissenting opinion- minority opinion.

20. Checks on Judicial power • Congress: • 1) confirmation and impeachment • 2) change the number of judges • 3) changing jurisdiction of courts • 4) revising legislation • 5) amending the Constitution

21. Public Opinion and the Courts • Judges do not follow public opinion. • However, over time if public opinion is consistent, judges will adapt laws to mirror public opinion.