Supreme Court

1. Supreme Court Judiciary – The cornerstone of our democracy

2. Two Types • Criminal Law • The government charges an individual with violating specific laws (crime against society) • Civil Law • Involves a dispute between two parties (one of whom may be the government itself) over a wide range of matters. • No crime committed • Usually involves damages or actions

3. On Average… • Most cases are settled out of court • Plea bargains • Settlement agreements • Most cases (civil and criminal) involve state law and are tried in state and local courts

4. Characteristics • Adversarial system • Plaintive vs. Defendant • Conflicts are argued before an impartial arbiter • Courts are passive • Cases must be brought to them • Jurisdiction • Authority to hear a case • Dual system • State and Federal

5. Jurisdiction • Justiciable disputes • Issues capable of being settled as a matter of law • Original Jurisdiction • Courts that hear a case first, usually in trial. • Determine facts about a case. • Appellate Jurisdiction • Courts hear cases on appeal from lower courts. • No new testimony. • Do not review factual record, only the legal issues involved.

6. Jurisdiction II • Exclusive Jurisdiction • Cases that can ONLY be heard in specific courts • Ex: Bankruptcy cases are heard in federal district courts • Concurrent Jurisdiction • Cases that can be heard in either state or federal courts • Ex: Trademark infringement, breach of contract

7. Participants • Court Personnel – Judge, bailiff, stenographer, jury • Litigants – Plaintiff (bring charges) and defendant • Standing to sue – have a serious interest in a case (must have sustained or are likely to sustain a direct and substantial injury or damages) • Attorneys – Access to lawyers has become more equal, but that does not mean that quality of representation is equal. • Groups – Interest groups or “affected” groups of people

8. Group Participation • Class action suits - a small number of people to sue on behalf of all other people similarly situated • Example: a suit on behalf of all credit card holders of an oil company or all people injured by a medication • Amicus curiae briefs - Legal briefs submitted by a “friend of the court” • influence a court’s decision by raising additional points of view and presenting information not contained in the briefs of the formal parties.

9. Origin of the Courts • Article III of the Constitution only specifies that there will be a Supreme Court • Congress given power to establish lower (inferior) federal courts of general jurisdiction. • The Judiciary Act of 1789 - created a system of constitutional courts (also called Article III courts) on the basis of this constitutional provision • 12 federal courts of appeal • 94 federal district courts • thousands of state and local courts.

10. Article I Courts • Legislative courts – established by Congress for specialized purposes (based on Article I of the Constitution) • Staffed by judges who have fixed terms of office and who lack the protections of judges on constitutional courts against removal or salary reductions. • Ex - Court of Military Appeals, the Court of Claims, and the Tax Court

11. Decisions, Decisions • Common Law –English tradition of using judge-made law that has developed over centuries and is based on decisions made by previous judges • Stare Decisis – Phrase meaning “let the decision stand.” • Most cases in appellate courts are settled on stare decisis • Precedent – How similar cases have been decided in the past. • Lower courts are expected to follow the precedents of higher courts in their decision making. • Precedents CAN be overturned.

12. Federal District Courts • Federal District Courts • The only federal courts with trials and juries • Jurisdiction: • federal crimes • federal civil suits • civil suits between citizens of different states over $75,000 • bankruptcy proceedings • review actions of some federal administrative agencies • admiralty and maritime law cases • supervision of the naturalization of aliens

13. District Court Cases • District court judges hear more than 300,000 cases per year. • Most of the cases are settled by plea bargain or agreement (about 2% by trial) • Most cases are routine and seldom result in policy innovations • Usually district court judges do not even publish their decisions

14. APPEALS • Most federal litigation ends at district level, but many of the cases that district court judges actually decide (as opposed to those settled out of court or by guilty pleas) are appealed by the losers. • A distinguishing feature of the American legal system is the relative ease of appeals. • U.S. law gives everyone a right to an appeal to a higher court. • The loser in a case only has to request an appeal to be granted one (SCOTUS is an exception). • Of course, the loser must pay a substantial legal bill to exercise this right.

15. Courts of Appeal • United States is divided into 12 judicial circuits, including one for the District of Columbia. • Each circuit serves at least two states and has between 6 and 28 permanent circuit judges depending on the amount of judicial work in the circuit. • appellate jurisdiction– • 3 judge panels review final decisions of district courts (all may sit en banc for important cases) • review and enforce orders of many federal regulatory agencies.

16. Courts of Appeal

17. Courts of Appeal • Correct errors of procedure and law that occurred in the original proceedings of legal cases • Ex: a district court judge gave improper instructions to a jury or misinterpreted the rights provided under a law • These courts are appellate courts and therefore hold no trials and hear no testimony • Decisions set precedent for all the courts and agencies within their jurisdictions

18. Special Court of Appeal • U.S. Court of Appeals for the Federal Circuit – Composed of 12 judges to hear appeals in specialized cases, such as those regarding patents, claims against the United States, and international trade.

19. The Supreme Court • Decisions of the United States Supreme Court are binding on the entire nation • the highest court in the federal system • America’s “court of last resort” • the only court specifically established within Article III of the Constitution • Final arbiter of the Constitution • The size of the Court is not set in the Constitution • Originally set at six, altered many times between 1801 and 1869 • the number has remained stable at nine justices since that time

20. The Supreme Court • The Supreme Court has both original and appellate jurisdiction. • Important functions include: • Resolving conflicts among the states • Maintaining national supremacy in the law • Ensuring uniformity in the interpretation of national laws • All nine justices sit together to hear cases and make decisions (en banc) • A justice may recuse himself/herself in cases where there may be a conflict of interest

21. Supreme Court Cases • Original jurisdiction, defined in Article III • cases, e.g., suits between two or more states and/or cases involving ambassadors and other public ministers • Only 2 or 3 cases a year come from original jurisdiction • Almost all the cases come from the appeals process • Cases may be appealed from both federal and state courts • The great majority of cases come from the lower federal courts

22. Supreme Court Cases • Cases appealed from state courts must involve “a substantial federal question.” • Cases from state courts are heard only in the Supreme Court (not in the courts of appeal) and then only after the petitioner has exhausted all the potential remedies in the state court system. • The Court will not try to settle matters of state law or determine guilt or innocence in state criminal proceedings.

24. Supreme Court Cases • Unlike other federal courts, the Supreme Court controls its own agenda • Rule of Four • SCOTUS clerks screen thousands of cases • Appealed cases are discussed in conference • Four Justices must agree to hear a case • A writ of certiorariis issued to request records from the lower court • Only about 100 out of the 8000+ cases are placed on the SCOTUS docket

25. Supreme Court Cases • The solicitor general (+ a staff of about two dozen experienced attorneys) has an important influence on the Court • A presidential appointee (the third-ranking official in the Department of Justice) in charge of the appellate process of the federal government • Avoiding frivolous appeals and displaying a high degree of competence gains the confidence of the Court • This usually grants review of a large percentage of the cases that the government want reviewed

26. SCOTUS Process • First Monday in October through June, the Court hears oral arguments in two-week cycles. • Justices are familiar with the case before they ever enter the courtroom. • Clerks will thoroughly research the case. • The Court will have received written briefs from each party. • They may also have received briefs from parties who are interested in the outcome of the case but are not formal litigants (known as amicus curiae—or “friend of the court”—briefs).

27. More SCOTUS Process • Attorneys for each side have only a half-hour to address the Court during oral argument. • The chief justice presides in conference. • The chief justice calls first on the senior associate justice for discussion and then the other justices in order of seniority. • If the votes are not clear from the individual discussions, the chief justice may ask each justice to vote. • Once a tentative vote has been reached (votes are not final until the opinion is released), an opinion may be written

28. SCOTUS Opinions • Opinion – Statement of legal reasoning behind a decision. This will create a precedent. • Justices are free to write their own opinions, to join in other opinions, or to associate themselves with part of one opinion and part of another • Majority opinion – at least 5 justices must agree • Dissenting opinions – Justices opposed to majority decision • Concurring opinions – Support a majority decision but stress a different constitutional or legal basis for the judgment

29. Implementation • “John Marshall has rendered his decision; now let him enforce it!” – Andrew Jackson • Thought to be apocryphal, refers to a ruling denying states any authority in Indian affairs • “All deliberate speed” – Chief Earl Warren • 10 years after Brown only 1% of Southern schools were desegregated • Court must rely on the president, Congress, states, and miscellaneous government officials to enforce its rulings

30. Implementation • Judicial implementation refers to how and whether court decisions are translated into actual policy. • Court decisions carry legal (even moral) authority • Supreme Court decisions are not self-implementing • courts do not possess a staff to enforce their decisions • they are actually “remands” to lower courts, instructing them to act in accordance with the Court’s decisions • Writ of Mandamus - an order from a court to an inferior government official ordering the government official to carry out the decision of the court

31. Implementation • implementation of court decisions involves several elements: • an interpretation population (lawyers and other judges) who must correctly sense the intent of the original decision in their subsequent actions • The implementing population (those responsible for putting the decision into effect) will have an easier job if implementation is concentrated in the hands of a few highly visible officials. • A consumer population (those affected by the decision) must be aware of its newfound rights and stand up for them

32. Judicial Appointments • Senate must confirm each by majority vote. • Federal judges are constitutionally guaranteed the right to serve for life “during good behavior” • Federal judges may be removed only by impeachment (only seven times in two centuries) • No Supreme Court justice has ever been removed from office (Samuel Chase was tried but not convicted by the Senate in 1805) • Salaries of federal judges cannot be reduced (a stipulation that further insulates them from political pressures)

33. Lower Courts • Senatorial Courtesy • Unwritten tradition (which began under George Washington in 1789) which causes presidents to run possible nominees past senators prior to nominating • District court nominees are usually not confirmed if opposed by senator of the president’s party from state the nominee will serve • Courts of appeal nominees are not confirmed when opposed by a senator of the president’s party who is from the nominee’s state

34. Background Check, Lower Courts • Federal Judges do not represent the demographics of the U.S. population • Most are lawyers (not a constitutional requirement) • Most are white males. • Most have been a judge or prosecutor • Most have participated in partisan politics

35. At the Highest Level • All justices have been lawyers (so far) • All but 6 (Marshall, O’Connor, Thomas, Ginsburg, Sotomayor, and Kagan) have been white males • Most age 50s and 60s when they took office • Most from upper-middle or upper class • Most have been Protestants

38. Supreme Court Nominees • Political Ideology – Presidents try to appoint justices with a similar ideology (doesn’t always work out) • Party/Personal Loyalty – 90% of appointments go to the president’s party; patronage has diminished • Senate Approval – informal, avoids problems • Experience – many have served on Courts of Appeal or in the Department of Justice • Race & Gender – All were white males until 1967 • The “Litmus Test” – Presidents and Senators deny it (much like Area 51 and Tupac) but there is usually a deal-breaking test of “ideological purity” that can doom a nominee

39. Confirmation Process • Nominees’ names are submitted to the FBI and ABA for thorough background checks • Interest Groups have become increasingly involved, both by swaying public opinion and lobbying of senators • The Senate Judiciary Committee holds public hearings and makes a recommendation to the full Senate • The Senate votes, a majority is required

40. Nomination Difficulties • Nominations will be difficult if: • the president’s party is in the Senate minority. • the president makes a nomination at the end of his or her term. • the nominee’s views are more distant from the norm in the Senate. • the nominee faces competence or ethics questions. • The Senate Judiciary Committee rejects the candidate.

41. 52-48

42. Policy Eras • 1789 - Civil War: issues were the strength and legitimacy of the federal government and slavery • Civil War -1937: issues about the relationship between the federal government and the economy predominated • the courts traditionally favored corporations, especially when government tried to regulate them • 1938 to present: the issues before the Court have concerned personal liberty and social and political equality • the Court has enlarged the scope of personal freedom and civil rights, and has removed many of the constitutional restraints on the regulation of the economy • Most recently, environmental groups have used the courts to achieve their policy goals

43. The Marshall Court1801-1835 • Growth of National Power • Marbury v. Madison (1803) – The 1st use of judicial review (a power discussed and implied by the framers, but not explicit). • Judicial review – Power of the courts to determine whether acts of Congress and President are in accord with the Constitution. • The Court could now enhance or eliminate policy instead of just reviewing it.

44. The “Nine Old Men” • Under FDR, Congress passed dozens of laws designed to end the Great Depression; but SCOTUS declared the acts unconstitutional. • In 1937, FDR proposed what critics called a “court-packing plan.” • Congress sets the number of justices, so FDR hoped to increase the Court’s size and appoint additional justices sympathetic to the New Deal. • Congress never passed the plan, two justices (Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts) began switching their votes in favor of New Deal legislation—a transformation that was called the “switch in time that saved nine.”

45. The Sick Chicken Case • Schechter Poultry Corporation v. United States (1935) – National Industrial Recovery Act was declared unconstitutional because it regulated purely local business that did not affect interstate commerce.

46. The Warren Court1953-1969 • A VERY activist court…much to Ike’s chagrin!! • In 1954, the Court held that laws requiring segregation of the public schools were unconstitutional (Brown v. Board of Education). • The Court expanded the rights of criminal defendants. • It ordered states to reapportion their legislatures according to the principle of “one person, one vote.” • Right-wing groups called for Chief Justice Earl Warren’s impeachment • Critics argued that the unelected justices were making policy decisions instead of elected officials.

47. The Burger Court1969-1986 • More conservative than the liberal Warren Court, but did not overturn the due process protections of the Warren era. • Narrowed defendants’ rights, but did not overturn the fundamental contours of the Miranda decision. • Wrote the abortion decision in Roe v. Wade (1973), • Required school busing in certain cases to eliminate historic segregation • Unanimously ordered President Nixon to turn over the White House (Watergate) tapes [United States v. Nixon (1974)] and thus hastened his resignation.

48. Rehnquist & Roberts1989-Present • The Rehnquist and Robert’s Courts have been slowly chipping away at liberal decisions regarding • defendants’ rights • abortion • affirmative action • The Court no longer sees itself as the special protector of individual liberties and civil rights for minorities • The Court has typically deferred to the will of the majority and the rules of the government.

49. Two Cases • Bush v. Gore (2000) – Decided the 2000 presidential election…yes, the Supreme Court decided, so never, ever, never again should you think that just one vote has no effect... • McDonald v. Chicago (2010) – The Court extended 2nd Amendment’s limits on restricting right to bear arms to state and local gun control laws (remember incorporation?)

50. Oligarchy? • In some ways the courts are not a very democratic institution. • Federal judges are not elected • Federal judges are almost impossible to remove and their salaries can’t be reduced • Federal judges tend to be wealthy, socially connected, and highly educated • SCOTUS sets its own agenda • The public has limited access to many court proceedings