The Federal Judiciary

1. The Federal Judiciary • The 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. – Article III, sec. 1

2. The Federal Judiciary • Judiciary Act of 1789 • Creates 13 District courts and 3 Circuit courts • Section 25 : Allows one to appeal a case under state law to the Supreme Court if there is a constitutional question.

5. The Federal Judiciary • Two types of jurisdiction • Original: Ambassadors, other public ministers, and cases involving states • Appellate : Must have a constitutional question

6. The Federal Judiciary • Federalist #78 • The court is the “least dangerous branch” • It can only hear real cases or controversies involving real injuries. • It is passive – has to wait for cases to come to it. • Doesn’t grant advisory opinions

7. The Federal Judiciary • Deciding to decide • Writ of Certiorari – “to be informed of” • A writ issued by a superior court requiring an inferior court to produce a certified record of a particular case.

8. The Federal Judiciary • Deciding to decide • The Supreme Court receives 10000 petitions a year. 2000 paid appeals 8000 in forma pauperis • the Court agrees to hear about 75-85 cases • About 4% of the paid petitions and 1/10th of 1% of in forma pauperis petitions

9. The Federal Judiciary • Granting Cert • Cert pool = 8 justices belong • 4 clerks of each justice read 10000 petitions and write memos • Justice Samuel Alito doesn’t belong • Rule of 4: It takes four justices to agree to hear a case

10. The Federal Judiciary • Fast Track petitions • From the Solicitor General (heard 90% of the time) • Petitions with amicus briefs • “Circuit Conflict” – 80% of the docket • Civil Liberties issues present US Solicitor General Donald Verrilli

11. The Federal Judiciary • More “cert-worthy” criteria • Good vehicle • Importance • “Sui generis” – one of a kind • Importance to polity (Brown, Roe) • Legal Importance • Affects large # of people (national security) US Solicitor General Donald Verrilli

12. The Federal Judiciary • Reasons to deny • Absurd claims – “nut cases” • A better case in the pipeline • A petition that raises too many questions • Bad facts • Case deemed “frivolous” • Lack of percolation

13. Interpreting the Constitution • Using Stare Decisis: Translated from Latin, stare decisis means “to abide by, or adhere to, decided cases.” Judges should decide cases on the basis of previously decided cases.

14. Interpreting the Constitution • Using Stare Decisis: • Pros: This method fosters stability in law. • This method would foster predictability to the legal profession.

15. Interpreting the Constitution • Using Stare Decisis: • Cons: When looking at majority and dissenting opinions, one can usually find precedents. • It may be difficult finding a “rule of law” in an opinion. For example, consider Taney’s opinion in Dred Scott

16. Interpreting the Constitution • Doctrine of Original Intent: In the 1833 case of Barron v Baltimore, Chief Justice Marshall rejected the view that the Bill of Rights covered state actions because the Framers did not intend for it to do so.

17. Interpreting the Constitution • Doctrine of Original Intent: • Pros: The Framers acted in a calculated manner. • The justices can deduce constitutional truths which would produce neutral principles of law. In other words, the approach would not reflect the ideological or political values of the judges. • This method fosters stability in law.

18. Interpreting the Constitution • Doctrine of Original Intent: • Cons: If ONLY this approach were used, the Constitution would lose its applicability. • The Constitution embodies not one intent, but many. Who WERE the Framers? • From which sources should justices find the original intentions of the Framers?

19. Interpreting the Constitution • Doctrine of Literalism: A literalist would scrutinize the Constitution and look at the LITERAL meaning of the words. For example, the 1st Amendment reads, “Congress shall make no law . . . abridging freedom of speech.” No law means NO LAW.

20. Interpreting the Constitution • Doctrine of Literalism: • Pros: The approach would not reflect the ideological or political values of the judges. • This method fosters stability in law.

21. Interpreting the Constitution • Doctrine of Literalism: • Cons: The approach supposes a precision in the English language. Some words have multiple meanings. • The judges must still interpret the Constitution. Article I, Section 8 gives Congress the power to establish an army and a navy. What about an air force?

22. Interpreting the Constitution • Using basic principles and values in the perspective of history: The ideas and concepts upon which the Constitution is built have a life of their own. The Justices should frame their decisions within the context of these values without ignoring the realities of contemporary society.

23. Interpreting the Constitution • Using basic principles and values in the perspective of history: • Pros: Justices have a responsibility to not hold back the progress of society by adhering to outmoded methods of interpreting the Constitution. • The Constitution should be a “living, breathing document.”

24. Interpreting the Constitution • Using basic principles and values in the perspective of history: • Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation. • This approach would foster judicial activism.

25. Interpreting the Constitution • Using contemporary social values in terms of today’s policy needs: The justices should use contemporary social values when interpreting the Constitution.

26. Interpreting the Constitution • Using contemporary social values in terms of today’s policy needs: • Pros: Justices have a responsibility take into account social values of the time period interpreting the Constitution. • The Constitution should be a “living, breathing document.”

27. Interpreting the Constitution • Using contemporary social values in terms of today’s policy needs: • Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation. • This approach would lead to decisions much like Korematsuv United States (1944).