CH 14: The Judiciary

1. CH 14: The Judiciary Ms. Bittman’s AP Government

2. The Common Law Tradition • Justices and judges not elected, appointed/confirmed. • When they interpret=policymakers working w/in the political institution. • Based off English system. • Common Law- judge-made law that originated in England. Decisions shaped according to custom, then applied to similar situations, becoming common in the nation.

3. The Common Law Tradition • When deciding new cases, former decisions (precedent) led to doctrine of stare decisis “to stand on decided cases” • Judges mostly follow precedent set by their or higher courts. • Example: Lower state court in FL would be obligated to follow precedent set by FL Supreme Court, but would not be obligated to follow the TX Supreme Court. • When Federal Supreme Court decides, all states must follow.

4. Sources of American Law • Body comes from federal/state constit., statutes, admin law, case law (legal principle set in court decisions) • Constitutions- federal and state • Law that violates must be declared unconstitutional. • State constit supreme w/in borders, unless they conflict

5. Sources of American Law • Statutes and Administrative Regulations- increasingly define the rights and obligations of individuals. • Federal statues relate to any subject of concern of the federal government • State statues include criminal codes, commercial laws, etc. • Cities, counties pass ordinances concerned with zoning, public safety. • Administrative regs • Most of the court’s work comes from interpretation and application of these laws.

6. Sources of American Law • Case Law: decisions from courts are also a body of law • Judicial interpretation of common law principles • Interpretation of constitutional provisions, statutes, administrative regs. • They decided what the documents are “saying”

7. Federal Court System • Dual court system- 50 state, D.C., and federal courts • Basic Judicial Requirements for a case to be brought • Jurisdiction: the authority of the court to hear and decide a case. • States and federal are both limited. • Art III, Sec 1: diversity of citizenship (parties from different state, country, at lease $75,000) or federal question (constitution, treaty, federal law) • Standing to Sue: must have suffered harm, threatened by a harm. • Must also be a justiciable controversy- real and substantial.

8. Federal Court System • US District Courts: trial courts, general jurisdiction (broad array of issues) • Lower tier, limited jurisdiction (certain types of cases, bankruptcy, tax claims) • One federal district court in every state. 94 total. • Can appeal their case to US Court of Appeals or federal appellate court.

9. Federal Court System • US Court of Appeals • 13 total. • 12 of them hear from within their judicial circuits. • 1, Court of Appeals for the 13th Circuit, has national appellate jurisdiction • Patent, US Gov. • 3 or more judges, no trial, determines whether there was an error. • Don’t look at facts, but at law.

10. Federal Court System • US Supreme Court • 1789, 5 Justices, 1837, totaled 9. • Only one “supreme”. • Congress creates all the lower courts. • Original Jurisdiction, but mostly appellate. • Hears from federal appellate and state supreme courts. • Can review a state supreme court decision if there is a federal question only.

11. Supreme Court of the United States Court of Appeals Court of Appeals for the Federal Circuit Tax Courts District Courts Territorial Courts Federal Regulatory Agencies Court of International Trade Court of Federal Claims Bankruptcy Courts Court of Veterans Appeals

12. Federal Court System • Plaintiff (initiator of lawsuit) vs. Defendant (person against who the lawsuit is brought) • Can be many. • Brought by IGs, most for racial or gender based discrimination, all civil liberties, 1/3 business cases. • Also file amicus curiae briefs (friends of the court) • Sometimes IGs or plaintiffs will bring class-action suits (affects all members of a class) • Parties must follow the rules set by the court (or cited for contempt) • Civil (failing to comply with a court’s order to benefit another) • Criminal (obstruct the administration of justice)

13. Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Clarence Thomas, Antonin Scalia, Chief JusticeJohn Roberts, Anthony Kennedy, Ruth Bader Ginsburg

18. Supreme Court at Work • Begins 1st Monday in October, adjourns late June/July • Special sessions can happen, but are rare. • Of all cases, less than ½ of 1% are SC • Discretion over types of cases • Can set policy by issuing decision, or refusing to hear. • Has decided capital punishment, affirmative action, religious freedom, assisted suicide, abortion, busing, term limits for cong, sexual harassment, pornography, states rights, federal jurisdiction, to mention a few.

19. Supreme Court at Work • Which cases reach the SC? • Discretionary • Factors that matter • If a legal question has been decided differently in lower courts • When a decision conflicts with SC ruling • Significance beyond parties in dispute. • Is the solicitor general pressuring Court? • Can have big effect! AKA 10th justice.

20. Supreme Court at Work • If court grants a petition for review, issues a writ of certiorari, orders the lower court to send the SC a record of the cases. • 90% petitions for cert are denied. • Denial of the writ is not precedent. • The court will only issue a writ if rule of four: four judges approve of it.

21. Supreme Court at Work • Once cert is issued, justices research the legal issue and facts. • Justice gets 4 clerks (they research and draft arguments) • Does not hear evidence • Consideration is based on abstracts, record, briefs. • Attorneys make oral arguments (M,T,W, some T for 7 2 week sessions) • All statements and questions recorded. • Question and answer session • Justices meet to discuss in (v. secret) conference W-F of the term. • Petitions, current cases.

22. Supreme Court at Work • Opinions (ruling) are written explaining reason, rule of law, etc. • Lower court affirmed or reversed. Occasionally remanded. • Can be unsigned- per curiam. • Chief Justice writes majority, or senior judge. • 9-0= unanimous opinion, • Majority opinion= not unanimous. • Concurring option agree for different reasons. • Dissenting option= used to overturn.

23. The Selection of Federal Judges • Art II, Sec 2, prez appoints, advice and consent of Senate. • 850 federal judgeships in US. • Serve till they resign, retire, or die. • Can be impeached… though rare.

24. The Selection of Federal Judges • Nominating Judicial Candidates • Suggested by DOJ, senators, judges, candidates, lawyer associations, IGs • Considers • Competence • Political philosophy • Ethnicity • Gender • Once at the Senate, Senate Judiciary Committee holds hearing. • Senatorial Courtesy: allows a senator of the prez’s party to veto if senator from the nominee’s state objects.

25. The Selection of Federal Judges • Federal District Court Judgeship Nominations • Usually originates form the Senator of the state • If deemed unqualified, prez will discuss with senators. • Federal Courts of Appeals Appointments: fewer, but more important. • Become “steppingstones” to the SC • Uses the Circuit Judge Nominating Commission’s list • Can be used to oppose senator’s recommendations

26. The Selection of Federal Judges • SC: most commonly judges or private legal practice. • Partisanship and Judicial appointments: become more and more partisan • Same as the nominating president. • Prez see it as a way to institutionalize their political views • Senate sees it the same way. • 20% rejected.

27. Policymaking Function of the Courts • Judicial review: established by Marbury v. Madison • A law passed by Congress that violated the US constitution “the courts must decide on the operation of each. • If federal court declares a law unconstitutional, it only applies to their jurisdiction • Higher the court, greater the impact

28. Policymaking Function of the Courts • Judicial activism vs. judicial restraint. • Judicial activism: the view that the federal judiciary should take an active role in using is powers to check Cong, states, administrative agencies. • 1953-1969, Warren Court (Chief Justice Earl Warren): Racial segregation violated the equal protection clause. • Judicial restraint: court should defer to Cong and prez b/c they are elected • Defers to agencies-experts. • Should not overturn unless clearly unconstitutional.

29. Policymaking Function of the Courts • The Rehnquist Court: 1986-2000, Conservative • William Rehnquist (now Roberts), Scalia, Thomas, Alito are conservative • Sotomayor, Breyer, Kagan, Ginsburg Liberal. • Kennedy is the swing vote.

30. Policymaking Function of the Courts • US v. Lopez (1995): first case since New Deal to limit Congress’s power under commerce clause. • Struck down Gun-Free School Zones Act of 1990 • Seminole Tribe of FL vs. FL (1996): Cong does not have the power to abrogate the sovereign immunity of the states. • US v. Virginia (1996): Struck down VMI male-only admissions. • Lawrence v. TX (2003): Struck down anti-sodomy.

31. Policymaking Function of the Courts • Clinton v. City of NY (1998): Struck down line-item veto • Zelman v. Simmons-Harris (2002): Upheld school vouchers to religious schools. • Planned Parenthood v. Casey (1992): Struck down Pennsylvania abortion law. • Citizen’s United v. FEC (2010): Cannot restrict spending by unions or corporations in public speech

32. Policymaking Function of the Courts • District of Columbia v. Heller (2008): Struck down a ban on handguns. • McDonald v. Chicago (2010) • Baze v. Rees (2008): Lethal injection upheld with a different “cocktail” • Gonzalez v. Carhart(2007): Upheld a ban on Partial-Birth Abortion.

33. What Checks our Courts? • V. independent • Executive: SC does not enforce. • Prez rarely refuses to enforce. • Influence through nomination • Solicitor General • Govs may refuse. • Gov. OrvalFaubus ordered to desegregate in 1955. Refused and used the National Guard to block it. • Prez Eisenhower then federalized the AK Nat. Guard to stop it.

34. What Checks Our Courts? • Legislative Checks: legis pays, but doesn’t have too. • Rulings can be overturned by amendment at state and fed. • 14th,15th, 26th check the state court’s ability to discriminate. • Many constit amend have failed. • School prayer, abortion • Congress or state can rewrite legislation to overturn rulings.

35. What Checks Our Courts? • Public Opinion: • People can ignore the decisions • Prayers often still said and courts cant do anything. • Public can ask that the gov not enforce at state/local level • Courts are influenced by society

36. What Checks Our Courts? • Judicial traditions and doctrines: SC self-restraint. • They know that they can be stopped. • Will not hear a meritless case • Narrow focus on case. • Rarely makes broad, sweeping decisions. • Stare Decisis • If it is a political question, court leave it to the exec or legis • Higher courts can reverse decisions of lower courts. • Lower courts can and have ignored the upper.