Download Chapter 15: The Judiciary

Chapter 15: The Judiciary
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What Do Courts Do?
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The United States has an adversarial judicial
system.
A court must have jurisdiction: the legal
authority to resolve a case.
Trial courts have original jurisdiction.
Appellate courts have appellate jurisdiction.
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Marbury v. Madison and the Principle
of Judicial Review
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Initially, the federal judiciary was quite weak,
with little effect on society, because the bulk of
lawsuits were still resolved in the state court
systems.
Marbury v. Madison (1803) established the
principle of judicial review.
Today, the U.S. Supreme Court is the highest
court of the land.
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The Dual Court System
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The existence of both a federal court system and
50 independently functioning state court systems
defines the dual court system that exists in the
United States.
Citizens are subject to both state laws and
federal laws.
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Sources of Laws in the United States
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Law is a body of rules established by
government officials that binds governments,
individuals, and nongovernment organizations.
There is a variety of sources of law in the United
States, including constitutions, pieces of
legislation, executive orders, rules and
regulations made by administrative bodies, and
judicial decisions.
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Common Law
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Common law is judge-made law grounded in
tradition and previous judicial decisions, instead
of in legislation.
The doctrine of stare decisis directs judges to
identify previously decided cases with similar
facts and then apply the rule of law used by the
courts in the earlier cases to the current case.
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Constitutional Law
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The U.S. Constitution is the supreme law of the
land.
The body of law that comes out of the courts in
cases involving constitutional interpretation is
known as constitutional law.
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Legislation as a Law Source
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Laws written by legislatures are called statutes.
The U.S. Code is a compilation of all the laws
ever passed by the U.S. Congress, and it
reflects that body’s priorities and concerns.
Each state has a penal code, which is a
compilation of all its criminal law.
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Executive Orders
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Article II, Section 1, of the U.S. Constitution
states that “the executive power shall be vested
in [the] president of the United States.”
This power has been interpreted to allow the
president to issue orders that create and guide
the bureaucracy in implementing policy.
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Administrative Rules and
Regulations: Administrative Law
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The rules, regulations, and standards made by
public administrators have the force of law, even
though the legislature has not voted to approve
them.
Administrative rule making fleshes out the broad
principles in the statutory law and is a source of
law.
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Criminal Law
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Criminal law is the body of law dealing with
conduct considered so harmful to society as a
whole, even when directed against an individual,
that it is prohibited by statute (a federal statute,
state statutes, or both).
Beyond a reasonable doubt: there is no
reasonable doubt that the defendant committed
the crime.
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Civil Law
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Civil law is the body of law dealing with private
rights and obligations that are established by
voluntary agreements, statutes, constitutions, or
common law.
Preponderance of evidence: it is more likely
than not that the accused caused the harm
claimed by the complainant.
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Trials Versus Appeals
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In a jury trial, a group of citizens hears evidence
and determines guilt or innocence.
In a bench trial, a judge hears evidence and
determines guilt or innocence.
Trials include presentation of evidence and
examination of witnesses.
Appellate cases involve briefs by lawyers and an
examination of trial transcripts. Cases are
decided by majority vote.
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State Law and Federal Law
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Federal laws apply throughout the United States.
State laws apply only to those residing in the
state and those visiting or doing business in the
state.
Problems arise when state law and federal law
are in conflict.
The federal court system has the authority to
resolve conflicts over all federal law, as well as
conflicts over the meaning of the U.S.
Constitution.
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The Federal Court System
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Article III of the Constitution states that “Judicial
power of the United States shall be vested in
one supreme Court and in such inferior Courts
as the Congress may from time to time ordain
and establish.”
Congressional legislation established the inferior
courts and special courts with distinctive
jurisdiction.
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Jurisdiction of Federal Courts
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Article III, Section 2, of the Constitution strictly defines
federal court jurisdiction.
Federal courts are empowered to hear only cases
involving a federal question or diversity of citizenship.
A federal question is a question of law based on
interpretation of the U.S. Constitution, federal laws
(including common law, statutory law, administrative law,
and executive orders), or treaties.
Diversity of citizenship means that the parties in the
case are individuals from different states or that the case
involves a U.S. citizen and a foreign government.
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The Structure of the Federal Courts
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The federal court system is a three-tiered
hierarchical system.
At the bottom, in the first tier, are the U.S. district
courts, which are trial courts with original
jurisdiction over a case.
In the middle tier of the federal system are the
U.S. courts of appeals, which have appellate
jurisdiction.
At the top of the federal court hierarchy, in the
top tier, isCopyright
the ©U.S.
Supreme
Court.
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U.S. Special Courts
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These include the U.S. Bankruptcy Court, the
U.S. Court of Military Appeals, the U.S. Tax
Court, and the U.S. Court of Veterans’ Appeals.
Congress established the FISA in a 1978 act
that spells out the procedures for the collection
of human and electronic intelligence.
FISA courts were charged with determining
whether an individual could be subject to
warrantless surveillance of his or her
communications.
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U.S. District Courts
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There are 94 federal district courts with 677
judgeships.
District courts have mandatory jurisdiction:
they must hear all cases filed with them.
A judge presides over the trial court, and the
judge, or a jury if the defendant chooses the jury
option, decide what happened in the case based
on the application of the law to the facts
presented in the courtroom.
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U.S. Court of Appeals
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At the middle level of the federal judicial
hierarchy are 13 courts of appeals.
Congress has authorized 179 judgeships for
these courts.
The judges work in panels of three to review
cases.
Courts of appeals review the legal procedures of
a preceding case and decide whether the law
was applied appropriately given the facts
already admitted
into
evidence.
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The U.S. Supreme Court
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Hears appeals from both the federal courts and
the state courts when cases decided there
concern a federal constitutional question or
when federal law is involved
Has discretionary jurisdiction
There are 8 associate justices and 1 chief
justice on the Supreme Court. The latter
provides both organizational and intellectual
leadership on the Court.
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Appointing Federal Judges
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The Constitution gives the president the authority to
nominate federal judges for the district courts and the
courts of appeals, as well as justices to the Supreme
Court using whatever criteria he or she chooses.
The Senate has a check on the president’s power to
nominate federal judges and justices because the
Constitution delegates to that body the power of advice
and consent for federal judges.
The Constitution established the term of office for federal
judgeships created under Article III to be “during good
behavior.”
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Selection Criteria
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Judicial competence
Ideology
Representation of demographic groups
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Descriptive representation
Substantive representation
Symbolic representation
Political considerations
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The Senate’s Role: Judicial
Confirmation
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In the case of the federal district court judges, a
custom known as senatorial courtesy gives
senators—although only those who are of the
same political party as the president—a powerful
voice in choosing the district court judges who
will serve in their state.
In the selection procedure, for courts of appeals
judges and U.S. Supreme Court justices, the
Senate Judiciary Committee plays a prominent
role.
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The Judiciary
Where Do You Stand?
Do you think the president should consider
gender and racial diversity when naming a
potential Supreme Court judge to the bench?
a. Should consider
b. Should not consider
Source: Newsweek Poll/Princeton Survey Research Associates International,
www.pollingreport.com/court2.htm.
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How the U.S. Supreme Court
Functions
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Decision making on the Court is a multistep
process that provides many opportunities for
conflict and compromise.
As a collegial court, which means it is made up
of a panel of justices who must evaluate a case
together and decide by majority vote the
outcome, Supreme Court justices must work
together as they navigate the process.
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Choosing Cases for Review
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In the vast majority of cases, the Supreme Court
is reviewing a decision made by a lower court
rather than exercising original jurisdiction.
Approximately 7,000 certiorari petitions are
filed with the Court each year, each asking for
the review of a case already decided.
Ultimately, the justices agree to review
approximately 100 cases
Supreme Court clerks prepare a cert memo.
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Choosing Cases for Review
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The writ of certiorari is a higher court’s order to
a lower court to make available the records of a
past case.
The justices determine whether they will
consider a case according to a practice known
as the Rule of Four.
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Considering the Case
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Parties to the lawsuit file briefs with court.
A person or group that is not party to the lawsuit
may file amicus curiae brief with court.
Oral arguments give the justices the opportunity
to ask the parties and their lawyers specific
questions about the arguments in their briefs.
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Meeting in Conference and Assigning
Opinion Writing
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After the justices have listened to the oral arguments in
the case, they meet in conference to deliberate.
The chief justice plays a vital role in this process. After
the likely votes of the other justices are tallied in the
conference, the chief justice decides whether he is with
the majority. If he is, he chooses whether he wants to
write the majority opinion.
If he declines, he can assign the task to one of the other
justices in the likely majority.
If the chief justice is not with the majority, the senior
member of this majority decides whether to write the
opinion or assign the opinion to another justice.
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Deciding How to Vote
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Judicial scholars offer three judicial decision-making
models.
The legal model focuses on legal norms and principles
as the guiding force in judicial decision-making.
Those following the attitudinal model follow their policy
and ideological preferences when deciding cases.
According to the strategic model, “while justices’
decisions are primarily motivated by policy concerns,
institutional constraints exist that limit the ability of the
justices to vote in a manner that is compatible with their
attitudes and values in every case.”
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Writing the Opinion
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The justice writing the majority opinion must lock
in all the available votes.
Concurring opinions agree with how the
majority opinion decides the case but disagree
with at least some of the legal arguments or
conclusions reached in this majority opinion.
Dissenting opinions not only disagree with
these arguments and conclusions but also reject
the underlying decision in the case.
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The Judiciary
Where Do You Stand?
Do you think the current Supreme Court is too
liberal, just right, or too conservative?
a. Too liberal
b. Just right
c. Too conservative
Source: “1/3 of Americans Say U.S. Supreme Court Too Conservative,”
www.gallup.com/poll/28861/OneThird-Americans-Say-US-Supreme-Court-TooConservative.aspx.
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Judges as Policy Makers
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Courts make law—common law—by deciding
cases and establishing legal principles that
guide future litigants and judges.
The lawmaking function of courts ensures that
judges have a powerful role as public policy
makers, because the decisions they make
profoundly affect not only the parties in the case
but also society, the economy, and politics.
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From Judicial Review to Judicial
Policy Making
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Marbury v. Madison (1803)
Plessey v. Ferguson (1896)
Brown v. Board of Education of Topeka, Kansas
(1954)
Because of their policy-making role, judges
participate in a larger political discourse that
goes far beyond the concerns of individual
litigants.
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Activism Versus Restraint
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Judicial activism refers to the courts’
willingness to strike down laws made by elected
officials as well as to step away from past
precedents.
Practitioners of judicial restraint believe that
the judiciary, as the least democratic branch of
government, should not check the power of the
democratically elected executive and legislative
branches unless their actions clearly violate the
Constitution.
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The Judiciary
Where Do You Stand?
Do you believe the justices on the U.S. Supreme Court
should base their rulings on what they believe the
Constitution’s framers originally meant when it was
written or on what they believe the Constitution means
for the country today?
a. Original meaning
b. Meaning for today
Source: FOX News/Opinion Dynamics Poll, www.pollingreport.com/court2.htm.
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Checks on the Courts
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Legislatures and chief executives
The public
Internal constraints
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The Supreme Court Today:
The Roberts Court
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John G. Roberts became chief justice in
2005.
Ideological distribution tilts slightly
conservative.
Anthony Kennedy is often a swing vote.
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