The Judicial Branch

1. The Judicial Branch

2. Alexander Hamilton: The Federalist #22 We need a third branch of the government that will define the true meaning and operation of the laws.

3. The Framers: Courts would have a traditional role Right! The courts will be neutral and passive in public affairs. The courts should not make policy, they should simply find and apply existing law.

4. The Framers: Courts would have a traditional role • Federal courts have evolved toward judicial activism. • Later judges believed that courts should also “make law.” • Through history, political, economic and ideological forces have led to increased court activism. I should’ve seen that coming!

5. What courts do • 1.Interpret laws passed by legislatures. • The U.S. Supreme Court interprets the U.S. Constitution • State supreme courts interpret state constitutions. Interpret: To decide the meaning of. 2. Settle disputes between people, or between people and the government. 3. Conduct criminal trials to determine a person’s guilt or innocence. 4. Protect people’s rights.

6. Article III of the Constitution Article III [Section 1.] 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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office. • Section 1 • Establishes a Supreme Court • Gives Congress the power to establish lower courts. • Judges serve “during good behavior.”

7. Article III of the Constitution Article III [Section 2.] The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; -- to all Cases affecting Ambassadors, other public Ministers and Consuls; -- to all Cases of admiralty and maritime Jurisdiction; -- to Controversies to which the United States shall be a Party; -- to Controversies between two or more States; -- between a State and Citizens of another State; -- between Citizens of different States; -- between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. • Section 2 • Defines jurisdiction of Supreme Court. • Guarantees right to trial by jury.

8. Article III of the Constitution Article III [Section 3.] Treason against the United States shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted. • Section 3 • Defines treason and gives Congress the power to set punishment for treason. • Summary • Article III is brief and describes very few powers given to the judiciary.

9. Jurisdiction Vocabulary • Jurisdiction: A court’s authority to hear and decide a case. • Original jurisdiction: ….to be the first court to hear and decide certain types of cases. • Appellate jurisdiction: ….to review decisions made by lower courts. • Exclusive jurisdiction: The sole right of a court to hear and decide a case. • Concurrent jurisdiction: cases that fall under jurisdiction of both state and federal courts.

10. A dual court system U.S. Supreme Court State Supreme Courts U.S. Courts of Appeals State Appeals Courts U.S. District Courts State Trial Courts

11. dual sovereignty State and federal authorities may prosecute the same person for the same conduct under both federal and state laws. GUILTY! DITTO!

12. Federal Court System U.S. Supreme Court Circuit Courts of Appeals U.S. District Courts

13. Federal Court System • 94 of them. • Have original jurisdiction in most federal cases. • All cases involve federal law. • The main trial court in the federal system. • Most decisions made in district courts are final. U.S. Supreme Court Circuit Courts of Appeals U.S. District Courts

14. Federal Court System • 12 federal appeals courts in U.S. • They are regional courts. • Only hear cases on appeal. • Judges review case record and “affirm” or “reverse” lower court’s ruling. • Decisions are final unless the S.C. agrees to hear the appeal. U.S. Supreme Court Courts of Appeals U.S. District Courts

16. Federal Court System • Highest court in the U.S. • “Court of last resort.” No appeal from Supreme Court. • Final authority on meaning of the Constitution. • Only hears cases it wants to. Most cases involve a constitutional question. • Nine judges. U.S. Supreme Court Circuit Courts of Appeals U.S. District Courts

17. The U.S. Supreme Court has original jurisdiction in cases: • which involve two states in a dispute. • which involve representatives of foreign governments.

18. Power of the Federal Courts Judicial interpretation Legislature laws Under what conditions should the judiciary overturn the will of the people? Will of the people

19. Judicial Review • Judicial review is the power of a court to decide if a law goes against the Constitution, and overturn it. • This power is not mentioned in the Constitution. • Judicial review was established by the Supreme Court in Marbury v. Madison(1803). • Marbury's effect -- the Supreme Court has the final say in what the Constitution means. John Marshall Chief Justice, U.S. Supreme Court 1801-1835

20. Marbury v. Madison in a nutshell • Established the power of judicial review. • The Supreme Court decides what the constitution means. • Vastly expanded the power of the courts. • Not in the Constitution. “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule.” Chief Justice John Marshall, Marbury v. Madison

21. Judicial Activism or Judicial Restraint? Judicial Activism: judges can adapt the meaning of the Constitution to reflect modern realities. Judicial Restraint: A judge should interpret the Constitution according to the Framers’ original intent. “[T]he judiciary must do more than dispense justice in cases and controversies. It must also keep the charter of government current with the times and not allow it to become archaic or out of tune with the needs of the day.” Justice William O. Douglas “It can never be emphasized too much that one's own opinion about the wisdom or evil of a law should be excluded altogether when one is doing one's duty on the bench.” Justice Felix Frankfurter

22. Judicial Activism • Judges should discover the principles underlying the Constitution and “amplify” them and apply them to cases. • A judge should use his or her position to promote desirable social ends. • Judges “make law.” • A new public policy emerges as a result of a judicial decision. • Assumption: Judges do not necessarily “respect” the intentions of the lawmakers.

23. Judicial Activism • Advantages • Courts can correct injustices created by other branches. • Laws can be changed when circumstances in society changes. • Courts can protect rights of the politically powerless. • Criticisms • Judges are not politically accountable. • Laws reflect the will of the people and judges must respect that. • Judges lack expertise on complex details of policy.

24. Judicial Activism • PERRY V. SCHWARZENEGGER • (Now: Hollingsworth v. Perry) • Issue: same-sex marriage • Liberal activism • The people of California, through the initiative process, created a state law prohibiting same-sex marriage. • Federal District Judge Vaughn Walker found that the law is unconstitutional. • Historical context (times have changed) • Due process clause (14th Amendment) • Equal protection clause (14th Amendment) • Judge’s decision = new law

25. Judicial Activism • CITIZENS UNITED V. FEDERAL ELECTION COMMISSION • Issue: campaign contributions by interest groups • Conservative activism • Congress passed the Bipartisan Campaign Finance Reform Act of 2002 (McCain-Feingold) which regulates “electioneering communication.” • Supreme Court found that this law inhibited the free speech of corporations. • Corporations are legally “individuals.” • 1st Amendment protects individual rights. • 5-4 decision = new law

26. Judicial Review • Judicial Activism or Judicial Restraint? • Most judges declare a belief in judicial restraint. • The power of judicial review implies some measure of judicial activism. • Best example of social value of judicial activism: ending racial segregation. • Current issues involving judicial activism: abortion, gay marriage, school prayer, death penalty.

27. Power of the Federal Courts • Courts make policy whenever they: • reinterpret a law or the Constitution in any significant way. • extend the reach of a law to new areas. • design remedies that place judges in a legislative or administrative role. • In most court cases, judges simply apply accepted law.

28. Power of the Federal Courts • The courts have become more powerful than the Framers envisioned. • Three ways to measure this: • How many federal laws have been declared unconstitutional? (160) • How frequently has the S.C. changed its mind? (260) • How willing are the courts to handle political questions (legislative matters)? (Increase after 1962) • By all of these measures the federal courts have grown in power.

29. Power of the Federal Courts Factors leading to increased power • Laws are increasingly vague. Courts have more latitude for interpretation and designing remedies. • (Examples: anti-discrimination, economic regulation for “public interest”) • Some laws invite litigation. Courts are called upon to settle disputes more often, esp. challenges to government agencies. More opportunity to make policy. • Judicial attitudes – Decisions affected by ideology. Activist judges more likely to make new policy.

31. Checks on Judicial Power: President • No armed forces to back up decisions. • Courts rely on executive branch to enforce decisions. • Judicial decisions can be ignored. • Worcester v. Georgia, Andrew Jackson refused to support decision favoring the Cherokee. • Prayer in public schools continued after Engel v. Vitale. • President can grant pardons and reprieves.

32. Checks on Judicial Power: Congress • Can gradually change the composition of the federal judiciary by confirming/denying appointments. • Can impeach judges – rare and ineffective. • Can change the size of the S.C. or entire judiciary. • 1978 – created 152 new district and appellate judges to ease workload. • 1863-1869 – changed size of S.C. three times.

33. Checks on Judicial Power: Congress • Can begin Constitutional amendment process (rare). • Can rewrite legislation in different form to meet requirements of the courts. • Can decide what the jurisdiction of the courts shall be. • Congress could prevent courts from acting by denying them jurisdiction over certain matters. • Even the threat of withdrawing jurisdiction can influence judicial decisions. (Example: congressional hostility to civil rights decisions.) • Narrowing jurisdiction is a “blunt instrument.”

34. Checks on Judicial Power: Public Opinion • Judges are very aware of public opinion and are sensitive to some (esp. elites) • Disregard of public opinion can damage the legitimacy of court decisions. • Example: Dred Scott infuriated the North and was widely disobeyed. • Public opinion can energize courts as well as restrain. • Activism coincides with period of deep and lasting political change (national supremacy, slavery debate, civil rights era).

35. Checks on Judicial Power: Public Opinion • Public confidence in S.C. has varied over time. • Current confidence level is “relatively low.” • Nixon and Reagan tried to make the S.C. less activist with their appointments.

36. “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” Sonya Sotomayor, 2001 in a speech to students at UC-Berkeley

37. Who are Federal Judges? Typically, federal judges have: • held previous political office such as prosecutor or state court judge • political experience such as running a campaign • prior judicial experience • traditionally been mostly white males • been lawyers • Most Supreme Court justices have previously been federal judges. Women of the Supreme Court Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan

38. Who are Federal Judges? Presidents usually nominate people to be federal judges who reflect the president’s own political beliefs. Once confirmed, the judges will serve for many years, ensuring that the president’s political influence will continue for many years. This doesn’t always work out. Presidents are sometimes surprised by the behavior of their nominees (Holmes, Burger, Blackmun) President Obama nominates Elena Kagan to be Supreme Court Justice.

39. Federal Selection Process • Highly politicized process. • Party background influences judicial behavior. • Gender, race and ethnicity have become increasingly important.

40. Federal Selection Process President Dept. of Justice Senators American Bar Association Interest Groups Senate Judiciary Committee Senate

41. Senatorial Courtesy • A tradition. Senators recommend judicial candidates from their state. • A Senator can also “veto” a judicial nominee for a district in his/her state. • Result: A president nominates only people recommended to him by a senator. • “The senators shall nominate, and by and with the consent of the President, shall appoint federal judges.”

42. The “Litmus Test” • The examination of the political ideology of a nominated judge. • Often focuses on narrow issue. • Has grown in importance. Confirmation rates have declined. Confirmation rates for nominees for U.S. Court of Appeals 1947-2005)

43. The “Litmus Test” • Threat of judicial filibuster means 60 Senators must support a nominee to assure confirmation. • Abortion is the most likely issue for use of “litmus test.” • “Litmus test” most important for S.C. nominees. • Questioners try to pin down nominees on their views. • Sotomayor: Is she prejudiced? • Alito answer: “I can’t predict how I’ll decide on cases I haven’t heard yet.”

44. Sonya Sotomayor was confirmed by a vote of 68-31. 9 of 40 Republicans supported her confirmation.

45. The U.S. Supreme Court • Highest court in the land. • NINE Justices • All but six have been white men. • African-American (2):Thurgood Marshall and Clarence Thomas • Women (4): Sandra Day O’Connor , Ruth Bader Ginsburg, Sonya Sotomayor, Elena Kagan • Hispanic (1): Sonya Sotomayor Thurgood Marshall

46. Powers of the Supreme Court Power Example Explains what the U.S. Constitution means. What does “unreasonable search” mean? Judicial Review Powers of the U.S. Supreme Court What does “uses” mean when a law says “uses a gun?” Interpreting Laws

47. How the Justices Vote • Judicial Philosophy • Judicial Restraint- advocates minimalist roles for judges • Judicial Activism- feels that judges should use the law to promote justice, equality, and personal liberty. • Precedent • Prior judicial decisions serve as a rule for settling later cases of a similar nature. • Precedents can change over time • Ex. Plessy vs. Ferguson and Brown vs. Board of Education

48. The U.S. Supreme Court • Chief Justice: John Roberts • Grants a writ of certiorari for about 100 of the over 7,000 cases that are submitted to it each year. • Certiorari – Latin for “make more certain” • “Rule of four”: If four justices vote to grant certiorari, the Supreme Court accepts the case. • Will not hear cases if they believe the lower court made the correct decision. John Roberts Chief Justice 2005 - present

49. The U.S. Supreme Court • Chooses cases that • Involve significant Constitutional questions . • Involve other important legal questions . • Involve disagreement among lower courts. • Are important to the entire country. John Roberts Chief Justice 2005 - present

50. The Supreme Court’s Decision Making Process Lawyers submit briefs to justices. Justices read briefs. Amicus curiae briefs submitted by other interested parties. Court hears oral arguments. A lawyer from each side gets 30 minutes. Judges ask lawyers questions. Justices get together in secret conference to discuss case. Then they vote. Chief Justice guides discussion. Justices write opinions to explain the reasons for their decision. The Court’s decision is announced to the public.