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The Judiciary

The Judiciary. Chapter 14. Learning Objectives. Analyze the implications of the adversarial process Explain the structure of the federal court system Compare and contrast arguments in favor of and against judicial activism Describe the process of reaching a decision to the U.S. Supreme Court

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The Judiciary

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  1. The Judiciary Chapter 14

  2. Learning Objectives • Analyze the implications of the adversarial process • Explain the structure of the federal court system • Compare and contrast arguments in favor of and against judicial activism • Describe the process of reaching a decision to the U.S. Supreme Court • Assess the influences on the U.S. Supreme Court • Compare and contrast the limits of judicial action • Assess the roles of the judiciary in a constitutional democracy

  3. Balance of the Court “We are under a Constitution, but the Constitution is what the judges say it is……” -Justice Charles Evans Hughes Liberal Conservative

  4. Understanding the Federal Judiciary • The judiciary is generally guarded from public opinion and the rest of government • No Terms (good behavior) • No salary reductions once confirmed • Guaranteed independence

  5. Characteristics of the Federal Judiciary • Judicial Review (Marbury v. Madison) • Adversary system: based on the theory that arguing over law and evidence guarantees fairness

  6. Criminal vs. Civil Law • Criminal trial a person’s liberty is at stake • Government provided attorneys • Right to a jury • Civil case penalties are predominantly monetary • No guaranteed attorney • No jury trials in state civil trials

  7. Cases, Controversies, and Justiciability • Can only decide cases dealing with real controversy. • Must be brought to them • Must have already impacted a person (i.e. Obamacare) • Court should not hear political questions, these are more properly dealt with be the legislature (Bush v. Gore)

  8. Prosecuting Cases • U.S. Department of Justice is responsible for prosecuting federal criminal and civil cases. • Headed by attorney general (Eric Holder) • Assisted by solicitor general (Neal Katyal) • Reps in front of Supreme Court cases • 94 U.S. attorneys • 1,200 assistant attorneys

  9. Three Types of Federal Courts:Judiciary Act of 1789

  10. Three Types of Federal Courts:Judiciary Act of 1789 • Supreme Court original jurisdiction only in cases involving ambassadors, other public ministers, and other diplomats, and cases in which a state or states are a party • Rest of the time only appellate jurisdiction • Currently 9 justices, originally 6

  11. Current Justices • The Roberts Court, 2010Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief JusticeJohn G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

  12. Three Types of Federal Courts • District Courts • 678 judges across 94 district courts • Hear the majority of cases

  13. Three Types of Federal Courts • Circuit Courts of Appeals • Appealing a case means taking it a higher court for review • Judges must use precedent • 13 of these courts, Indiana is in district 7 • Usually operate in panels of three judges

  14. Judicial Federalism: State and Federal Courts • Writ of habeas corpus: a court order requiring explanation to a judge why a prisoner is being held in custody. • State courts use their own constitution and laws, only when in conflict with the Constitution do federal courts interfere

  15. Appointing Federal Judges • Appointed by President, approved by Senate • Supreme Court = no requirements • Assumed they would be skilled in law • Washington established tradition • Same party • Same beliefs • Same rulings • Senator advice for district courts, ensuring every state is represented

  16. Appointing Federal Judges • Presidents consult with Congress, especially senate • American Bar Association (ABA) rates candidates for appointment • Interest groups also chime in • Senate Judiciary Committee conducts interviews and investigations • May ask about personal history, opinions, and philosophy • 31 of 152 nominees have been refused by the Senate

  17. The Role of Party, Race, and Gender • 10% of nominations are from opposing party • Race, gender, and ideology more important now • More diversity in nominations with recent presidents • Clinton 50% • Bush 37%

  18. Role of Ideology • Regan’s two terms he appointed 368 lifetime judges • “Right kind” of democrats and republicans must be found

  19. Role of Judicial Philosophy • Are judicially active or do they demonstrate judicial restraint? • How do they interpret the Constitution? • originalists • Reforming the selection process after the 1987 and 1991 televised confirmation hearings of Robert Bork and Clarence Thomas

  20. Quick Review • President will get advice from other executive branch members, associates, and Senators. • A nomination is made based largely on ideology, race, and gender. • The nominee will then face a hearing from the Senate Judiciary Committee. • The Committee may then approve or reject the nominee following the hearings. • They may ask personal questions in the hearings, but nominees may also refuse to answer questions.

  21. Death Strikes the Court

  22. YOU BE THE JUDGE • Come pick a role out of the bag • Listen to directions about next step • President and advisors analyze the nominees to make your choice, remember having a nominee rejected is a public embarrassment • Nominees, read your profile, and get into character, be ready to face a hearing and think about how and what questions you will be willing to answer knowing your confirmation is on the line • Senate Committee Members you are each responsible for coming up with three questions to ask the nominee • The president along with his advisors will officially make a nomination to fill the vacated seat. • The nominee will then face a hearing from the Senate Judiciary Committee • The Committee will vote to either confirm or reject the nominee by a majority vote.

  23. The Nominees

  24. How the Supreme Court Decides • Term 1st Monday in October through the end of June. • Hear arguments for two weeks, adjourn to consider cases and write opinions for other two weeks • 6 needed to rule, majority wins, lower court stands in case of tie • For the years 2009 and 2010, associate justices have been paid $213,900 and the chief justice $223,500

  25. How the Supreme Court Decides • 8 Step Process • Reviewing appeals • Granting the appeal • Rule of 4 • Briefing the Case • Holding the Oral Argument • 30 minutes only • Meeting in Conference • Friday mornings • Explaining the Decision • Opinion, Dissenting, Concurring • Writing the Opinion • Difficult tedious task, lots of responsibility and negotiating • Releasing the opinion • Publicly released www.supremecourtus.gov

  26. Influences on the Supreme Court • Supreme Court precedent is the primary influence. • Interest groups, chief justice, and law clerks, solicitor general, and citizens

  27. After the Court Decides • People do not always immediately follow the courts rulings.

  28. Limits on Judicial Action • “stare decisis” to stand by that which is decided, or let the decision stand • Congressional and Presidential Action • Can’t be removed individually, but they can act to impact all of the judiciary • Similar to schools

  29. Judicial Power in a Constitutional Democracy • Judicial must remain independent • Elections matter • Appointments • Judges are aware of public opinion • They rely on the approval of our free people

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