AP Government notes on the federal judiciary

1. AP Governmentnotes on the federal judiciary

2. The Judicial Branch • The judicial branch of the federal government consists of all federal courts. • Article III of the Constitution established the U.S. Supreme Court and then gave Congress the authority to create lower federal courts as it saw fit.

3. The Judicial Branch • The main source of power for the judicial branch is judicial review, yet that concept is not in the Constitution. • The power of judicial review – to determine whether acts of Congress or the president are constitutional – was discussed at the constitutional convention and ultimately omitted (it is neither endorsed nor banned).

4. The Judicial Branch • Judicial review is derived from the Supreme Court’s ruling in Marbury v. Madison. • Chief Justice John Marshall (a leading Federalist) declared in the court’s opinion that the judicial branch had the power and duty to “say what the law is.” • President Thomas Jefferson (a Democrat) was very disturbed by the assertion of judicial review but could not easily criticize the ruling because technically it was decided in his favor.

5. Interpreting the Constitution • The act of judicial review requires a court to interpret the meaning of the Constitution as it applies to a particular situation. • There are two basic philosophies about how the court should do this: strict construction and loose construction.

6. Interpreting the Constitution • Strict construction means using the original intent of the founding fathers and/or sticking closely to the literal text. • Strict construction is associated with a practice called judicial restraint. This term means that judges exercise self-restraint, i.e. they defer to the legislature as much as possible rather than substituting their own judgment.

7. Interpreting the Constitution • In contrast, a loose construction approach means that courts view the Constitution as a “living document” that evolves along with society and is not bound to the 1700s. • When judges interpret the law in a way that seems far removed from the Constitution or Congress’s intent, this is criticized as judicial activism. • Yet a decision that is decried as “activist” by one group is usually welcomed by others.

8. Interpreting the Constitution • Strict construction can result in fewer guaranteed rights and more limited government powers; in both cases, if it isn’t in the Constitution, it’s probably not protected. • Gay rights rejected • Federal regulation of gun purchases rejected • Loose construction can result in more guaranteed rights and more government power. • Abortion rights protected • Federal regulation of segregation protected

9. Eras and Issues Handled by the U.S. Supreme Court • From the beginning, the Supreme Court of the United States (SCOTUS) has had an important role in shaping the policies and history of our country. • There have been several “eras” during which a number of cases related to some issue have been decided and made a lasting impact.

10. Eras and Issues Handled by the U.S. Supreme Court • From the 1780s until the 1860s, the Court decided important cases clarifying the powers of the national government and the state governments. • McCulloch v. Maryland • Dred Scott v. Sanford

11. Eras and Issues Handled by the U.S. Supreme Court • From the 1880s to the 1930s, the Court dealt with issues arising from rapid industrialization and economic growth taking place. • These cases often dealt with conflicts between business and labor or between state and employer.

12. Eras and Issues Handled by the U.S. Supreme Court • The Court during this period maintained a laissez-faire economic philosophy and frequently struck down laws regulating working conditions. • The Court was activist in frequently overturning laws passed by democratically elected legislatures, but it was conservative in its beliefs. • Examples: the Court struck down laws that were designed to protect the right to join a union and to prevent child labor.

13. Eras and Issues Handled by the U.S. Supreme Court • When the New Deal first began, the Court continued striking down many of the laws as it had been doing. • Part-way through the New Deal, the Court reversed itself – partially pressured by FDR’s “court-packing scheme” – and began upholding regulations. • From the 1930s to the present, the Court’s most notable cases have mostly dealt with individual rights and discrimination against various groups.

14. Eras and Issues Handled by the U.S. Supreme Court • In the “modern” era… • 1950s-1970s: Civil rights • 1960s-1970s: Speech and religion; privacy; expanding rights for criminal defendants • 1980s: Rulings that bolstered law enforcement • 1990s – present: Rulings restricting federal power, cases about abortion, affirmative action, gun control, and other controversial issues

15. Structure of the Federal Courts (Complete version)

16. Structure of the Federal Courts (Simplified version) U.S. Supreme Court U.S. Courts of Appeals (12 Regional Circuit Courts plus the Federal Circuit) 94 U.S. District Courts Specialty Courts Administrative agency decisions

17. Structure of the Federal Courts • There is one U.S. Supreme Court, which can hear appeals from the U.S. Courts of Appeals and from the state supreme courts (and a small percentage of cases that originate there). • There are 13 Courts of Appeals – States are divided into 11 geographic “Circuits” plus 1 for Washington, D.C. and 1 for the “Federal Circuit.” Courts of Appeals are sometimes called Circuit Courts.

18. Structure of the Federal Courts Federal Circuits

19. Structure of the Federal Courts • There are 94 federal District Courts, which is where most federal cases begin. • Cases from those District Courts can be appealed up to the Court of Appeals in which they are located, and all decisions made by a Court of Appeals are binding on all of the District Courts in that circuit.

20. Operation of the Federal Courts • Before a case can even be heard by a court, it must be determined which court is the proper one to handle the case. That is a matter of jurisdiction – the geographic and subject-matter limitations of which courts hear which cases. • In addition to location, there are two basic types of jurisdiction: original and appellate.

21. Operation of the Federal Courts • Original jurisdiction is when a court hears a case for the first time; courts with original jurisdiction are also known as “trial courts” because that is where trials take place. • Appellate jurisdiction is when a court hears a case only after a lower court has made a ruling and the losing side “appeals” it. There are legal arguments, but no trial.

22. Operation of the Federal Courts • District courts only have original jurisdiction. • Courts of Appeals only have appellate jurisdiction. • The Supreme Court has both original and appellate jurisdiction, but more than 95% of its cases come via appellate jurisdiction.

23. Getting to the Supreme Court • Although the Supreme Court does sometimes hear appeals in criminal cases (someone is on trial for breaking the law), most of its cases are civil, meaning one party (person, organization, business, etc.) is suing another party. • The process of suing is known as litigation. The party suing is the plaintiff and the party being sued is the defendant.

24. Getting to the Supreme Court • In order to bring a case before the court, one must have standing – the “right” to bring the case. • In order to prove standing, one must prove that they have suffered actual damage and that a court ruling could redress (remedy) this problem. • One cannot challenge a law on principle, or because they believe the law might in the future harm them. • With few exceptions (like minors), you cannot sue on someone else’s behalf.

25. Getting to the Supreme Court • When you ask the Supreme Court to grant your appeal, you are legally requesting a writ of certiorari. This is an order that certifies the case to be heard by that court. It is known informally as “cert.” • The Court uses the Rule of Four – if 4 of the 9 justices want to hear a case, the Court accepts it. • Justices may want to hear a case either to overturn it or to uphold the decision.

26. Getting to the Supreme Court • Each year the Court receives about 8000-9000 appeals and grants cert to 1% or less of those (in recent years, less than 80). • When the Supreme Court declines to hear a case, the previous court’s ruling (such as a federal appeals court) stays in effect. [Happens 99% of the time]

27. Getting to the Supreme Court • The federal government in federal court: • The Solicitor General represents the U.S. government in court. It is considered the third-ranking position in the Dept. of Justice behind the Attorney General (a more political position) and the Deputy Atty. Gen. • The Solicitor General’s office decides which positions the government will take in cases and whether to appeal cases lost at lower levels.

28. Getting to the Supreme Court • The federal government in federal court: • The federal government has sovereign immunity, a concept retained from the British monarchy. This means that the government cannot be sued unless it consents to being sued. • The states also have a measure of sovereign immunity, but they can be sued by the federal government in certain instances (for example, discrimination).

29. The Supreme Court in Action • 95% of the cases heard by the Supreme Court are on appeal, so like all cases heard on appeal there are no witnesses and no evidence, only considerations of law and procedure. • The most important part of the process is when both sides in the case file briefs. The brief is like a persuasive paper in which the attorneys for each side try to convince the Court to rule in their favor.

30. The Supreme Court in Action • People, governments, and organizations not participating in the case can also file briefs in an effort to sway the Court. These briefs filed by interested parties are called amicus curiae briefs, meaning “friend of the court.” • The degree to which amicus briefs influences the outcome is debatable, however • Amicus briefs give the Court a sense of how important the case is, and to whom, and may at least sway them to hear the case. • The Solicitor General files amicus briefs for the federal government, and those are always taken seriously.

31. The Supreme Court in Action • The single biggest influence on the Court’s decision is precedents, earlier Supreme Court rulings in similar cases. In their briefs, attorneys attempt to find precedents for their position. • The Court adheres to a philosophy called stare decisis,which means to let earlier decisions stand. In practice it means that • Lower courts follow the precedents of higher courts. • The Supreme Court rarely reverses earlier Supreme Court rulings (precedents).

32. The Supreme Court in Action • The procedure for cases that have been granted cert by the Supreme Court is: 1. Briefs are submitted and read by the Justices 2. Oral arguments take place, in which attorneys for each side have only 30 minutes to argue their case and respond to questions by the Justices. 3. After hearing the arguments for all the cases to be decided that term (which takes weeks), the Justices meet in conference to discuss and vote on all the cases, like how a jury deliberates in a trial. 4. After the votes are cast, the Justices write opinions.

33. The Supreme Court in Action • Opinionsare written explanations for why the Justices voted the way they did. A case can have anywhere from zero to nine opinions. There are three types: • Majority– this is the “Opinion of the Court,” which explains the reasons behind the majority’s decision • Concurring – this is written by a Justice who decides in the same way as the majority but has a different reason or wants to say something else. • Dissenting – this is written by a Justice in the minority, that is, on the losing side of the decision.

34. The Supreme Court in Action • Opinions are crucial for establishing precedents to guide lower courts on later cases. • Dissenting opinions are almost as important as majority opinions, because dissenting opinions can provide the rationale for others arguing the case in the future and even for the Court itself.

35. Efforts to Avoid Controversy • The Supreme Court has no way to enforce its rulings. It therefore tries to avoid controversy whenever possible by • Reaching unanimous decisions, giving no support to anyone on the other side. • Keeping deliberations secret. Opinions are published but the discussions that take place in conference are strictly private. • Deciding cases narrowly, dealing only with the matter at hand. • Avoiding political questions – issues that are not really legal and better left to elected officials.

36. Efforts to Avoid Controversy • Another important part of avoiding controversy is upholding precedents (stare decisis). Strong reliance on precedents keeps the Court from having to revisit controversial issues. • Here is a quotation from a ruling explaining the way the Court follows precedents: “This Court declines to overrule Miranda. Whether or not this Court would agree with Miranda’s reasoning and its rule in the first instance, stare decisis weighs heavily against overruling it now. Even in constitutional cases, stare decisis carries such persuasive force that the Court has always required a departure from precedent to be supported by some special justification. There is no such justification here.” [Dickerson v. U.S., 2000]

37. The Politics of Judicial Appointment • Federal judges are nominated by the President and confirmed by the Senate. Most of them are lifetime appointments (can only be removed by impeachment) in order to insulate them from political pressure. • The confirmation process is highly political because they will be making rulings for many years to come.

38. The Politics of Judicial Appointment • From 1789 to 1970, the average Supreme Court justice served for 15 years and retired at age 69. • But since 1970, the average tenure has risen to 26 years and retired at age 79. • There are more than 900 federal judgeships, and Presidents in office for two terms may appoint more than 300 judges.

39. The Politics of Judicial Appointment • Factors that affect Presidential nominations: • Senatorial courtesy – For district court judges, Presidents traditionally defer to senator recommendations • Ideology: Strict/loose construction approaches, liberal or conservative political views • Additionally, many Presidents in recent years have used a “litmus test” – screening potential nominees regarding their views on a particular issue, usually abortion (their stance on Roe v. Wade).

40. The Politics of Judicial Appointment • Factors that affect Presidential nominations: • Interest groups/party supporters: Presidents want to select nominees that will earn good will with certain groups – Republicans want conservatives and Democrats want women and minorities. • George W. Bush made a more serious effort to appoint women and Hispanics, but Democratic presidents far outpace Republicans. • Obama’s two Supreme Court nominees have been women (2 of the 4 that have ever served) and one is Hispanic (first ever).

41. The Politics of Judicial Appointment • Diversity in appointments: The Changing Face of the Federal Judiciary, Brookings Institute, 2009

42. The Politics of Judicial Appointment • The politicized confirmation process: • Over 10% of federal judgeships are vacant. • Interest groups sometimes mobilize to oppose (or less often, support) appointment of certain judges. • Since 2001, judicial appointments have decreased dramatically, and those who are confirmed have long waits (a year or more).

43. The Politics of Judicial Appointment • The politicized confirmation process: • Many of these judges were eventually confirmed by lopsided margins (with 90 or more ‘yes’ votes), proving that the “holds” were not really about those particular judges. • Cloture votes on judicial nominations have skyrocketed. • [From 1949-2002, only 3% of cloture votes were on judicial nominations; by 2005 it had risen to 46%.] • The filibuster raises the threshold of confirmation from 51 senators (which the Constitution requires) to 60 (which the cloture rule requires).

44. Limits on Judicial Power • The judicial branch, in particular the Supreme Court, is potentially both the strongest and weakest branch. • It is the strongest in that: • Only the Supreme Court can overturn a Supreme Court ruling, and that is very rare. • They do not face the threat of being voted out of office or being fired. • Of the three branches, the courts enjoy by far the most public support.

45. Limits on Judicial Power Yet there are also significant weaknesses: • The Court relies on others to implement their decisions, especially the executive branch. If the President refuses, there is nothing the Court can do so its influence is vulnerable. • [Andrew Jackson on refusing to obey the Supreme Court on the matter of treating Indian nations as sovereign: “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”] • Even when officials comply they may delay.

46. Limits on Judicial Power • Congress can re-enact a law with clarifying language to negate a Supreme Court interpretation they don’t like. This is as close as Congress can come to “overturning” a ruling. • [Example: Ledbetter v. Goodyear Tire, 2007 and the Lilly Ledbetter Fair Pay Act of 2009]

47. Limits on Judicial Power • Congress also has power over the federal courts’ appellate jurisdiction (per the Constitution). • Ex Parte McCardle (1869 – habeas corpus denied) • Pledge Protection Act (bill passed House 2005) • Congress tried to do this with the Detainee Treatment Act but in Hamdan v. Rumsfeld (2006), the Court declared that the law does not apply to already pending cases and ruled on the case anyway, overturning the use of military tribunals where terror suspects are not given due process rights like access to a lawyer.