Introduction to the Judiciary

1. Introduction to the Judiciary

2. Warm up: Define These Key Terms • Amicus curiae • Concurring opinion • Constitutional courts • Dissenting opinion • Judicial activism • Judicial restraint • Judiciary Committee • Majority Opinion • Original jurisdiction • Stare decis • Writ of certiorari

3. Quick Facts • Basis of constitutional power found in Article III • Role of the judicial branch is to interpret laws • Judges are appointed by the president with the consent of the Senate and serve for life based on good behavior • Judicial power extends to issues dealing with common law, equity, civil law, criminal law, and public law • Cases are decide through original jurisdiction or appellate jurisdiction • Chief Justice of the Supreme Court presides over impeachment trials • Congress creates courts “inferior” to the Supreme Court

4. Dual Court System • Concept of dual court system reflects idea of federalism- shared power of federal and state gov. • Constitution allows Congress to create lower courts and the states to create own criminal justice system

5. Judicial Philosophy • Debate over the court’s role in defining policy • Early debate: Strict constructionist— judges should apply rules stated clearly in the Constitution vs. Activist- judges should discover the principles underlying the Constitution and apply them on economic and moral principles • Debate now: Activist or judicial restraint

6. 1787-1865 • Supreme Court established the following: • supremacy of the national government over states • judicial review • Right of Supreme Court to review cases of states • On the issue of slavery • Dred Scott case 1857

7. Phase 2: 1865-1937 • Dominant issue- when would the economy be regulated by the states and when by the federal government- court had strong attachment to private property • However, private property was understood by the 14th amendment to include businesses and industry , so courts were flooded with cases against government regulation • Judicial activism born in 1880s and 1890s • Court also rendered decisions that authorized different types of regulation • 14th and 15th amendments written so narrowly as to provide African Americans with limited rights

8. Phase 3: 1937-1974 • Court stopped imposing serious restrictions on state or federal power to regulate the economy • Roosevelt (first court he dealt with was against welfare systems but during his second term he proposed measures to pack the court- while he couldn’t do it, the Court did begin approving things they had previously denied) • Roosevelt ended up nominating 7 judges in his four terms in office • 1953 Chief Justice Earl Warren- active period where relationship between citizens and government was redefined and court was there to ensure liberties were protected. This was the period where civil rights issues were defined.

9. Revival of State Sovereignty • For a long time Supreme Court allowed congress to pass any law no matter how it affected the states under the interstate commerce clause • Since 1992 they have backed off of this

10. Structure of Federal Courts • The only federal court in the constitution is the Supreme Court; all other courts are creations of Congress • Congress has created constitutional courts- a court who exercises judicial powers found in article III of the constitution • District courts (approximately 94 with at least one in each state) • Courts of appeal (one in each of eleven regions plus D.C.) • Congress has created legislative courts- one set up by Congress for a specialized purpose, i.e. Court of Military Appeals, U.S. Court for International Trade, U.S. Court of Federal Claims, U.S. Tax Court

11. Selecting Judges • All are nominated by the president and confirmed by the Senate • Party background has some effect on rulings but it is not the only factor • Senatorial courtesy - gives heavy weight to the preferences of the senators from the state where a federal district judge is to serve- blue slip kills the nomination, therefore the president often nominates only people recommended by that senator • Lately the president has tried to exercise more influence over the selection of candidates • This has led to some people to call for a litmus test- a test of ideological purity- in selecting candidates • This problem has been exacerbated the greater political and policy role the courts take • Senatorial courtesy does not apply to Supreme Court judges

12. Jurisdiction of Federal Courts • Dual court system- one federal and one state • Federal courts hear all federal question cases- cases arising under the Constitution, the laws of the U.S., and treaties and diversity cases- cases involving citizens from different states • Under dual sovereignty doctrine state and federal authorities can prosecute the same person for the same offense • Federal courts can overturn state court rulings even when they had no jurisdiction over the matter in the first place • Federal court handle cases when a federal law is broken or if you want to challenge the decision of a regulatory agency (like the FCC) • A controversy between two state governments can only be heard by the Supreme Court • Most cases heard by federal courts start in district courts

13. Supreme Court • Supreme Court only hears cases it wants to • It looks at petitions and issues a writ of certiorari, which basically means they will hear the case to make the issue more certain • The “writ” is based on 5 criteria • Court has made a decision that conflicts with precedent • Court has come up with a new question • One court of appeals made a decision that conflicts with another • If there are inconsistencies between courts in different states • If there is a split decision in the court of appeals • Four justices must agree to hear the case • Dilemma- supreme court can’t hear everything so that means that federal courts are deciding major issues and there is disagreement among them • Law clerks have a lot of influence in the Supreme Court in deciding what gets heard

14. Getting to Court • Supreme court rejects 96% of cases • It is costly and time consuming to go through the court system • If you can’t pay you can file to be heard for nothing “in forma pauperis” and if your case began as a criminal trial you can be supplied by a lawyer (interest groups supply lawyers

15. Fee Shifting • Each party in a lawsuit must pay his/her own way • Fee shifting enables the plaintiff (whoever initiates the suit) to collect costs from the defendant if the defendant loses • This has made it cheaper to go to court

16. Standing • You are entitled to legally bring the case to court • You have to show “harm” in bringing something before the court • Doctrine of sovereign immunity- you can’t sue the gov. without its consent

17. Class Action Suits • A case brought into court by a person not only on behalf of himself but for all persons • Brown v Board of Education Topeka Kansas (1954)- court did not limit its decision just to Brown but extended it to “others similarly situated” • Number of cases grew exponentially because of the possibility of making a lot of money off of them but in 1974 the Supreme Court said it would no longer hear class action suits (unless civil liberties suit) that involved monetary damages and the number dropped • Big class action suits affect how the courts make policy

18. The Supreme Court in Action • Court is in session for 36 weeks of the year (oct. to June) • Lawyers submit briefs- a kind of summary- for consideration in their petitions, then give oral arguments • Federal government is a party in about half of the cases, so the solicitor general of the U.S. appears a lot (3rd ranking member of the justice dept.). He personally approves every case the government presents to the Supreme Court • Amicus curiae may also be given- it is a brief from someone not directly involved, many of these come from interest groups in a form of “polite lobbying” • Legal periodicals like Harvard Review or Yale Law Journal also influence judges • Majority must be in agreement for ruling. If there is a tie the decision of the lower court stands (there can be a tie if a justice disqualifies himself or is ill) • Opinion of the court- reflecting the majority’s view, concurring opinon- a brief by other justices who agree but for different reasons, and a dissenting opinion- justices on the losing side

19. Power of the Federal Courts • Courts make policy whenever they reinterpret the law or Constitution in significant ways • Frequency the Supreme Court changes its mind • Stare decisis- “let the decision stand”- principle of precendent- court cases can be decided the way similar ones were decided before • The meaning of the law should not continually change (otherwise there would be chaos) • Principle of equal justice dictates that similar cases should be adjudicated similarly • Supreme court has, of course, overturned its own rulings many times • After 1962 courts more willing to handle matters once left to the legislature • Indicator of power is in the remedy- judicial order to set things “right” • Remedies can apply to others not directly involved in the case, thus setting policy

20. Views of Judicial Activism • Views for it: federal courts need to correct injustices of the other branches, last resort for the poor and the powerless • Views against it: judges are not experts in management, some decisions adversely affect other groups, federal judges are immune to public control because they are appointed • Reason for so much activism is the increased ability of people to get to court

21. Legislation and the Courts • Constitution’s language vague and open to constant reinterpretation • Congress has increasingly passed laws that contain vague language

22. Checks on Judicial Power • Judges have no police force or army to enforce their decisions • Congress • Alter the composition of the judiciary by confirmation of appointments • It can impeach judges it doesn’t like • Can create courts and increase the number of judges • Can undo a Supreme Court decision interpreting the Constitution by amending that document- this rarely happens • Repass a law declared unconstitutional • Decide the jurisdiction of courts and appellate jurisdiction of the Supreme Court • Public Opinion • Court is sensitive to public opinions- especially those of the elite • Activist periods in history coincided with times when political system was undergoing change • Public sometimes doesn’t differentiate between what the supreme court is doing and the government as a whole • Popular support for court fairly low but that doesn’t affect its ability to check other branches or have many restrictions placed on it