Essential Questions

1. Essential Questions Why and how did the Framers protect the justices? What is the difference between original and appellate jurisdiction? What is the structure of the federal courts? Why is Stare Decisis important in opinions? Explain Judicial Review Contrast Strict v. Liberal Construction Explain the 4 modern court eras Explain Activism v. Restraint Executive and congressional influence and checks on courts

2. Chapter 6: The Judicial Branch Essential Question: How do the nation’s courts compete and cooperate with the other branches to settle legal controversies and to shape public policy?

3. Article III • Judges – independence protected by: • Federal judges serve for life • Salaries cannot be decreased while in office • Jurisdiction • Original – ambassador & public minister cases; cases where a state is a party • Appellate – cases appealed from a lower court • Treason – only crime listed in Constitution • “levying war” or giving “aid or comfort” to the enemy • Requires two witnesses to the crime • Right to Jury Trial

4. Federalist #78

5. Judiciary Act of 1789 Also created the Attorney General position, but not the Justice department

6. Federal court structure

8. U.S. District Courts • 94 Districts • Nearly 700 judges • 300,000 case filings nationwide, most are civil • Trial Courts – original jurisdiction • Plaintiff / Prosecution • Defendant • Witnesses • Jury members • Presiding judge • Finders of fact

9. U.S. District Courts • Federal Crimes • counterfeiting, mail fraud, evading federal taxes, drug trafficking, bank robbery, terrorism, violence on federal property • Plea Bargains – defendant and government agree to a lesser sentence in exchange for guilty plea – saves time and money • U.S. Attorneys • Represent federal government in court in all 94 districts • Work under U.S. Attorney General • Federal prosecutors – prosecute federal crimes (80k per year) • Immigration & drug offenses are the most; fraud is third

10. U.S. District Courts • Civil Cases • Disputes involving more the $75k with diversity citizenship • Class Action Suit – many harmed in same way can sue together • Suing the Government • Technically sovereign immunity, but exceptions established • Special Legislative Courts • Created by Congress, not the Constitution • Judges serve 15 year fixed terms • Courts for specific purposes • U.S. Court of Claims (citizen suing U.S.) • Taxation, international trade, spying and surveillance, and military matters

11. U.S. Circuit Courts of Appeals • Appellate jurisdiction • Petitioner must show violation of law/procedure by lower court • Panel of judges, no witnesses, no jury, no factual determination • Shape body of U.S. law • 1891 – Congress makes permanent: judges • 11 geographic circuits • 2 other appeals courts: • Circuit Court for Federal Circuit – patents, contracts, claims v U.S. • Circuit Court of Appeals for D.C. – appeals from those fined by regulatory agencies – feeder for SCOTUS justices • 200 justices (panels of three) • Sometimes en banc (all justices in circuit hear the appeal)

12. U.S. Supreme Court Chief Justice and 8 associate justices Appeals from circuit courts and state supreme courts Sit en banc and rulings are law of the land https://www.youtube.com/watch?v=h34uK7k8xRc

13. Common Law and Precedence • Common Law – the body of court decisions that make up part of the law • Precedent – a ruling that firmly establishes a legal principle • Stare decisis – “Let the decision stand” – concept that governs common law • Binding precedent – lowers courts are “obliged” to rule how higher courts have already ruled on an issue • Lower = district courts; higher = circuit courts (appeals) • Persuasive precedent – considering rulings in other districts or circuits as guiding principle

14. Judicial review • The ability to declare a legislative act or an executive branch action void • Makes the Supreme Court a powerful institution and the final arbiter of national law • Established in Marbury v. Madison (1803) • Court struck down Congress’ Judiciary Act • Supreme Court has used judicial review to address: • National supremacy and states rights • Relationship between government and industry • Individual rights and liberties

15. https://www.youtube.com/watch?v=hOvsZyqRfCo

16. Taney and the Dred Scott decision of 1857 • 1837 – Congress increases court to 9 members • Taney replaces John Marshall • Dred Scott v. Sanford (1857) • Scott traveled to free territory with master and claimed freedom • Court says Scott (as a slave) was not a citizen therefore he had no standing to sue; also slave owner’s rights did not change based on where he traveled (free territory)

17. Strict construction v. liberal construction • Strict constructionist: interprets Constitution in it original context • Liberal constructionist: sees Constitution as a living, breathing document; takes social conditions into account • Early Court (Marshall) = liberal • National supremacy & states’ rights • Mid to late 1800’s Court (Taney & Taft) = conservative • Government & industry • Early 1900’s (Hughes) = conservative • Until FDR’s court packing scheme in 1936 • Mid 1900’s (Warren) = liberal • Individual rights and liberties

18. Lochner v New York (1905) • Strict construction case (government and industry): • Supreme Court overturned a NY law that prevented bakers from working more than 10 hours per day • Contract law (employer / employee) supersedes police powers over safety and health

19. FDR and packing the court • Proposed legislation to add one justice for every one over age 70 – possibly adding 6 new justices • In four terms, FDR appoints 9 justices • Court then upheld case sustaining a state minimum wage law (liberal construction) • West Coast Hotel v. Parrish (1937) • “switch in time that saved nine” • Court then upholds every New Deal measure that came before it

20. Mixed messages on civil liberties • Strict construction: • Korematsu v US (1944) - court upheld FDR’s Executive Order #9066 placing Japanese-Americans in internment camps • Liberal construction: • Roe v. Wade (1973) – court upholds woman’s right to an abortion court

21. The Warren Court (1953-1969) • Appointed by Eisenhower in 1953 • Legacy = activist, liberal court that upheld individual rights of minorities and rights of accused • Expected a conservative justice, but hopes soon dashed: • Pro-integration Cases: Brown v. Bd of Education (1954) • Overturned Plessy v. Ferguson (1896) • Rights of the Accused Cases: Gideon (attorneys for indigent defendants); Miranda (rights must be formally given); Mapp (evidence obtained illegally not admissible in state courts) • First Amendment Cases: Engel v. Vitale (1962) (outlawed school-sponsored prayer) Tinker v. Des Moines Public Schools (1969) (rights to symbolic speech in schools)

22. The Burger Court (1969-1986) Appointed by Nixon to replace Warren Continued path of Warren, though Roe v. Wade (1973) – outlawed state anti-abortion laws as violation of due process Upheld school “bussing” for racial balance Lacked leadership

23. The Rehnquist Court (1986-2005) Appointed to court by Nixon Elevated to Chief by Reagan “the Lone Ranger” Strict constructionist Upheld states’ rights to place limitations on abortion Limited Congress’ Commerce Clause authority

24. The Roberts Court (2005 – present) Leaning conservative, but limited death penalty & upheld eminent domain authority Judicial minimalism – “Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don’t make rules, they apply them…” More unanimity than some previous justices; more narrow opinions

25. Diversity in the court today • 1916 – Wilson appointed first Jew: Louis Brandeis • 1967 – Johnson appointed first African American: Thurgood Marshall • 1981 – Reagan appointed first female: Sandra Day O’Connor • 1986 – Reagan appointed first Italian American: Antonin Scalia • 2009 – Obama appointed first Hispanic: Sonia Sotomayor • Today: • 1 African American • 3 females • 6 Catholics and 3 Jews

26. Stare Decisis and Constitutional Application • Stare Decisis: “let the decision stand” • Justice Brandeis: “Stare decisis is usually the wise policy, because in most matters it is more important that the applicable law be settled than it be settled right.” • In regards to legislation, Congress can fix if Court errs • In regards to Constitutional application, though, Court must correct itself if previously rule in error • Court overturns precedent when feels it has erred, usually due to court changing ideology (makeup of court), or when society changes

27. Judicial Activism vs Judicial Restraint • Brutus warned that court would be placed above other branches because totally independent, “no errors they may commit can be corrected by any power above them…” • Activism- judges acting to create law by striking down • Heller – overturned ban on handguns in D.C. • NFIB v. Sebelius – upheld individual mandate of Obamacare • Citizens United – struck down limits on campaign advertising • Restraint – judges should strike down law only when it clearly and directly contradicts the Constitution

28. Where do most SCOTUS cases come from • Original Jurisdiction – Article III, Section 2 [2] • Appellate jurisdiction – from 13 U.S. Circuit Courts of Appeal AND the 50 State Supreme Courts • 2/3 come from federal system (hear 1% of cases filed) • In forma pauperisbriefs (Gideon v. Wainwright) • Petition for Certiorari – brief arguing why ower court erred • Writ of Certiorari – request for full trial transcript from lower court • Rule of Four – four justices have to agree to hear a case for appeal to be granted • Cert pool – clerks who serve as “gatekeepers” for S.Ct.

29. Majority, Concurring & Dissenting Opinions Majority Opinion: The Supreme Court’s decision - sums up the case, the Court’s decision, and the rationale Becomes law, just as a statute or executive order Written by Chief Justice or senior justice in the majority Concurring Opinion: Agree with majority opinion but for different reasons Dissenting Opinion: Disagree with majority opinion Per curium opinion: no full explanation offered

30. Selecting a SCOTUS justice President appoints, Senate approves: “advice and consent” Litmus test – quick determination of an appointee’s political philosophy Senatorial Courtesy – senators from judge’s state will recommend to president; can also “veto” nominees from their home state – traditionally both senators must agree before nominee can go forward – only applies to district courts b/c within one state Confirmation – 161 nominees; 36 not confirmed (11 rejected by vote of full Senate)

31. The ABA and the SCOTUS selection process • Since 1950’s, American Bar Association has been involved in S.Ct. justice nominee process • Rate as “highly qualified,” “qualified,” and “not qualified.” • Getting “Borked” – “to destroy a judicial nominee through a concerted attack on his character, background, and philosophy.” • Clarence Thomas • Brett Kavanaugh

32. The nuclear option Threat to the Senate filibuster that was used to delay votes on federal judge nominees Would change the rules for cloture (vote to end a filibuster) from 2/3 to a simple majority Democrats used the nuclear option during Obama’s administration changing the Senate rules for cloture to a simple majority Republicans used cloture to get Kavanaugh confirmed this year:

33. Executive influence on the court’s power • Justice Department • Headed by Attorney General • Investigates federal crimes with FBI or DEA • Represents U.S. when sued in civil court • Solicitor General – appointed by President, approved by Senate • Determines which cases to appeal to Supreme Court • Represents U.S. in the Supreme Court room • May submit an amicus curiae brief to S.Ct. on behalf of U.S. • Elena Kagan, Thurgood Marshall, Stanley Reed

34. Congressional oversight and influence • Sets and pays judges salaries • Budgets for courthouses • Laws to govern the judiciary • Creates new seats in the district and circuit courts • Defines jurisdiction of courts (under Article III) • Judiciary Act of 1789 - Congress defines what cases heard by federal courts and what left to state courts • Defines standing (requirement for bringing case to court) – types of parties that can go to the various courts • “Court-stripping” – changing jurisdiction of federal courts to limit their power

35. Impeachment Congressional power to check judicial branch House brings articles of impeachment Senate votes on conviction 15 judges have been impeached: 8 were convicted, 4 were acquitted, and 3 resigned before trial Most recent: U.S. District Judge Thomas Porteous from LOUISIANA in 2010 for corruption and perjury

36. Check on SCOTUS by amendment • 11th Amendment – citizens from one state may not sue another state • Allowed under Article III, but Georgia denied federal court had jurisdiction over the case – Supreme Court rules against GA • Chisolm v. Georgia (1794) • States get 11th Amendment passed to exempt these cases from federal jurisdiction (overrules Chisolm case) • 14th, 15th, & 16th Amendments – Civil War amendments • Overruled Dred Scott decision • 19th Amendment – women’s suffrage • overruled Minor v. Happerset(1875) • 16th Amendment – income tax • Overruled court decision striking down Congressional income tax

37. Implementing a SCOTUS decision

38. How cases reach the court https://www.youtube.com/watch?v=7sualy8OiKk

39. Essential Questions Why and how did the Framers protect the justices? What is the difference between original and appellate jurisdiction? What is the structure of the federal courts? Why is Stare Decisis important in opinions? Explain Judicial Review Contrast Strict v. Liberal Construction Explain the 4 modern court eras Explain Activism v. Restraint Executive and congressional influence and checks on courts