THE FEDERAL COURTS

1. THE FEDERAL COURTS LEAST DANGEROUS BRANCH OR IMPERIAL JUDICIARY?

2. THE 2000 PRESIDENTIAL ELECTION • FOUGHT IN A SERIES OF COURT BATTLES RANGING FROM CIRCUIT COURTS, U.S. DISTRICT COURTS ALL THE WAY UP TO THE U.S. SUPREME COURT. • CONVERVATIVE JUSTICE SCALIA SEEMED PREDISPOSED WHILE HEARING THE CASE TO ASSIST BUSH’S ATTORNEY DURING THE TRIAL SUMMATION. • THE COURTS ARE POLITICALLY POWERFUL • JUDGES ARE NOT APOLITICAL; THEIR DECISIONS ARE INFLUENCED BY THEIR POLITICAL BIAS. • *SINCE JUDGES ARE NOT ELECTED AND ACCOUNTABLE TO THE PEOPLE, WHAT DOES THE SHIFT IN POWER MEAN FOR AMERICAN DEMOCRACY?

3. “IS THE SUPREME COURT THE LEAST DANGEROUS BRANCH, OR AN IMPERIAL JUDICIARY?”

4. THE JUDICIAL PROCESS • COURTS HAVE TAKEN OVER FROM KINGS THE POWER TO SETTLE CONTROVERSIES BY HEARING THE FACTS ON BOTH SIDES AND DECIDING WHICH SIDE POSSESSES THE GREATER MERIT. • JUDGES MUST HAVE A BASIS FOR THEIR AUTHORITY. • CONSTITUTION AND THE LAW

5. CASES AND THE LAW • CRIMINAL LAW • GOVERNMENT CHARGES AN INDIVIDUAL FOR VIOLATING A STATUTE THAT HAS BEEN ENACTED TO PROTECT THE PUBLIC HEALTH, SAFETY, MORALS OR WELFARE. • PLAINTIFF=GOVERNMENT, DEFENDANT=INDIVIDUAL BEING CHARGED • CIVIL LAW • DISPUTES AMONG INDIVIDUALS OR BETWEEN INDIVIDUALS AND THE GOVERNMENT WHERE NO CRIMINAL VIOLATION IS CHARGED. • CONTRACTS AND TORTS • THE PLAINTIFF CHARGES THAT THEY HAVE SUFFERED BECAUSE OF ANOTHER’S VIOLATION OF A SPECIFIC AGREEMENT BETWEEN THE TWO.

6. (CON.) • TYPICAL TORT CASE: ONE INDIVIDUAL CHARGES THAT HE OR SHE HAS BEEN INJURED BY ANOTHER’S NEGLIGENCE OR MALFEASANCE. • MEDICAL MALPRACTICE SUIT. • CIVIL CASES ARE DECIDED BASED ON THE APPLICATION OF STATUTES (LAWS) AND LEGAL PRECEDENTS (PRIOR DECISIONS) • PRECEDENTS APPLICATION ARE APPLIED UNDER THE DOCTRINE OF STARE DECISIS, “LET THE DECISION STAND”

7. (CON.) • PUBLIC LAW • WHEN A PLAINTIFF OR DEFENDANT IN A CIVIL OR CRIMINAL CASE SEEKS TO SHOW THAT THEIR CASE INVOLVES THE POWERS OF GOVERNMENT OR RIGHTS OF CITIZENS AS DEFINED UNDER THE CONSTITUTION OR BY STATUTE. • WHAT BEGINS AS AN ORDINARY CRIMINAL CASE MAY ENTER THE REALM OF PUBLIC LAW IF A DEFENDANT CLAIMS THAT HIS OR HER CONSTITUIONAL RIGHTS WERE VIOLATED BY THE POLICE. • AN INDIVIDUAL MAY ASSERT THAT THE GOVERNMENT IS VIOLATING A STATUTE OR ABUSING ITS POWER UNDER THE CONSTITUTION. • EMMINENT DOMAIN

8. THE ORGANIZATION OF THE COURT SYSTEM • TYPES OF COURTS • FEDERAL • STATE • OVER 99% OF ALL COURT CASES ARE HEARD IN STATE COURTS • THE MAJORITY OF CRIMINAL CASES INVOLVE VIOLATIONS OF STATE LAWS • IF A CASE IS BROUGHT TO TRIAL IT WILL BE TRIED IN A STATE TRIAL COURT • CASES MAY PROCEDE TO STATE APPELATE COURTS AND STATE SUPREME COURTS. • THE SAME PROCESS IS FOLLOWED IN CIVIL COURT CASES. • *MOST CASES ARE SETTLED PRIOR TO A TRIAL THROUGH THE PROCESSS CALLED A PLEA BARGAIN.

9. (CON.) • THE U.S. MILITARY OPERATES ITS OWN COURT SYSTEM UNDER THE UNIFORM CODE OF MILITARY JUSTICE, WHICH GOVERNS BEHAVIOR OF MEN AND WOMEN IN THE ARMED SERVICES. • ON RARE INSTANCES THE GOVERNMENT HAS CONSTITUTED SPECIAL MILITARY TRIBUNALS TO HEAR CASES DEEMED INAPPROPRIATE FOR THE CIVIL COURTS. • NAZI WAR CRIMINALS, TERRORISTS

10. FEDERAL JURISDICTION • CASES ARE HEARD IN FEDERAL COURTS IF THEY INVOLVE FEDERAL LAW, TREATIES WITH OTHER NATIONS OR THE U.S. CONSTITUTION. • THESE AREAS CONSTITUTE JURISDICTION OF THE FEDERAL COURTS. • IN ADDITION ANY CASE IN WHICH THE U.S. GOVERNMENT IS A PARTY.

11. (CON.) • HEARING APPEALS FROM STATE-LEVEL COURTS. • AN APPEAL FROM A COURT MAY BE HEARD IF THOSE CONVICTED FEEL THAT THE CONVICTION WAS REACHED BASED UPON AN UNCONSTITUTIONAL ACTION BY THE STATE. • APPEALS ARE HEARD IF IT IS DETERMINED THAT THE CASE HAS MERIT AND ALL OTHER POSSIBLE REMEDIES WITHIN THE STATE COURTS HAVE BEEN EXHAUSTED. • STATE SUPREME COURT RULINGS MAY BE APPEALED TO THE U.S. SUPREME COURT.

12. (CON.) • LESS THAN 1% OF THE COURTS BUSINESS ARE CASES HEARD IN THE FEDERAL DISTRICT COURTS. • THIS IS A SUBSTANTIAL INCREASE OVER THE LAST 40 YEARS, IN LIGHT OF THE FACT THAT CONGRESS HAS MADE MANY CRIMES FEDERAL OFFENCES.

13. THE IMPORTANCE OF FEDERAL COURT CASES. • ALTHOUGH FEW CASES ARE HEARD BY THE FEDERAL COURTS, THEY ARE IMPORTANT BECAUSE: • THE POWERS AND LIMITATIONS OF THE NATIONAL GOVERNMENT ARE TESTED • THEIR POWER TO REVIEW THE DECISIONS OF THE STATE COURTS,THE FEDERAL LAWS THAT GOVERN ALL AMERICANS ARE INTERPRETED AND THEIR MEANING AND SIGNIFICANCE ARE ESTABLISHED.

14. THE LOWER FEDERAL COURTS • THE FEDERAL DISTRICT COURTS ARE TRIAL COURTS OF GENERAL JURISDICTION. • THEIR CASES ARE INDISTINGUISHABLE FROM CASES IN THE STATE TRIAL COURTS. • 89 DISTRICT COURTS IN THE 50 STATES PLUS ONE IN D.C.AND ONE IN PUERTO RICO AND THREE TERRITORIES. • DISTRICT JUDGES ARE ASSIGNED TO DISTRICT COURTS ACCORDING TO THE WORKLOAD.

15. LOWER FEDERAL COURTS (CON.) • FEDERAL DISTRICT COURTS ARE ESSENTIALLY THE SAME AS LOWER STATE COURTS EXCEPT PROCEDURES ARE STRICTER. • GRAND JURY • TWELVE MEMBER TRIAL JURY • UNANIMOUS VERDICT

16. THE APPELLATE COURTS • 10% OF LOWER COURT CASES ARE ACCEPTED FOR REVIEW BY THE FEDERAL APPEALS COURTS AND BY THE SUPREME COURT. • 12 JUDICIAL CIRCUITS • EACH HAS A U.S. COURT OF APPEALS. • EXCEPT FOR CASES SELECTED BY THE SUPREME COURT, DECISIONS MADE BY THE APPEALS COURT ARE FINAL. • EACH COURT OF APPEALS HAS FROM THREE TO FIFTEEN PERMANENT JUDGESHIPS, DEPENDING ON THE WORKLOAD OF THE CIRCUIT. • THREE JUDGES NORMALLY DECIDE APPEALS.

17. THE SUPREME COURT • ONE CHIEF JUSTICE • EIGHT ASSOCIATE JUSTICES • ALL JUSTICES ARE EQUAL IN POWER

18. JUDGES: HOW JUDGES ARE APPROVED • FEDERAL JUDGES ARE APPOINTED BY THE PRESIDENT AND ARE GENERALLY SELECTED FROM AMONG THE MORE PROMINENT OR POLITICALLY ACTIVE MEMBERS OF THE LEGAL PROFESSION. • FREQUENTLY, APPOINTMENT OF DISTRICT JUDGESHIPS IS CONTINGENT ON RECOMMENDATIONS BY SENATORS OR GOVENORS FROM A PARTICULAR STATE.

19. (CON.) • PRESIDENTS ENDEAVOR TO APPOINT JUDGES WHO POSSESS LEGAL EXPERIENCE, GOOD CHARACTER, AND WHOSE PARTISAN AND IDEOLOGICAL VIEWS ARE SIMILAR TO THE PRESIDENT’S OWN. • ONCE NOMINATED, THE NOMINEE MUST BE CONSIDERED BY THE SENATE JUDICIARY COMMITTEE AND CONFIRMED BY A MAJORITY VOTE IN THE FULL SENATE. • SENATORIAL COURTESY • PLAYS A ROLE IN THE DISTRICT COURTS, BUT LESS SO IN THE APPELATE COURTS SINCE THESE COURTS JURISDICTIONS INCLUDE SEVERAL STATES.

20. SUPREME COURT APPOINTEES • REAGAN AND BUSH SOUGHT APPOINTEES WHO BELIEVED IN REDUCING GOVERNMENT INTERVENTION IN THE ECONOMY AND WHO SUPPORTED THE MORAL POSITIONS TAKEN BY THE REPUBLICAN PARTY IN RECENT YEARS SUCH AS OPPOSITION TO ABORTION. • *THE 2000 ELECTION

21. COURTS AS POLITCAL INSTITUTIONS: DISPUTE RESOLUTION • COURTS EXIST AS INSTITUTIONS THAT ENGAGE IN FACT-FINDING AND JUDGEMENT. • THE COURT ALSO PROVIDES THE SERVICES FOR DISPUTE RESOLUTION • CRIMINAL LAW INVOLVES THE RESOLUTION NOT ONLY OF A PRIVATE DISPUTE, BUT ALSO WHETHER OR NOT A VIOLATION OF A PUBLIC ALW HAS TAKEN PLACE.

22. COORDINATION • THE COURT SYSTEM COORDINATES PRIVATE BEHAVIOR BY PROVIDING INCENTIVES AND DISINCENTIVES FOR SPECIFIC ACTIONS. • TO THE EXTENT IN WHICH THESE WORK, THERE IS LESS AFTER-THE –FACT RESOLUTION FOR COURTS AND JUDGES TO ENGAGE IN.

23. RULES INTERPRETATION • IN MATCHING FACTS OF A SPECIFIC CASE TO JUDICIAL PRINCIPLES AND STATUTORY GUIDELINES, JUDGES MUST ENGAGE IN INTERPRETIVE ACTIVITY.WHICH STATUTES OR JUDICIAL PRINCIPLES FIT THE FACTS OF A PARTICULAR CASE. • INTERPRETING RULES IS THE SINGLE MOST IMPORTANT ACTIVITY IN WHICH HIGHER COURTS ENGAGE. (COURTS ARE HIERARCHICAL)

24. (CON.) • JUDGES ENGAGE IN NOT ONLY STATUTORY INTERPRETATION, BUT CONSTITUTIONAL INTERPRETATION AS WELL. • JUDGES ARE CONTINUALLY ENGAGED IN ELABORATING, EMBELLISHING OR REWRITING THE RULES BY WHICH PRIVATE AND PUBLIC LIFE ARE ORGANZIED. • STATUTORY AND CONSTITUTIONAL INTERPRETATIONS HAVE AUTHORITY OVER SUBSEQUENT DELIBERATIONS. • THE ONLY WAY CONGRESS CAN ABROGATE THIS TYPE OF RULING IS THROUGH A CONSTITUTIONAL AMENDMENT.

25. THE POWER OF JUDICIAL REVIEW • THE AUTHORITY AND OBLIGATION TO REVIEW ANY LOWER COURT DECISION WHERE A SUBSTANTIAL ISSUE OF PUBLIC LAW IS INVOLVED. • HENCE THE SUPREME COURT IS MORE THAN A JUDICIAL AGENCY, IT IS ALSO A LAWMAKING BODY.

26. JUDICIAL REVIEW OF ACTS OF CONGRESS • THE FRAMERS DID NOT ESTABLISH THE PRINCIPLE OF JUDICIAL REVIEW. • IT EVOLVED OUT OF THE CASE OF MARBURY v. MADISON (1803)

27. JUDICIAL REVIEW OF STATE ACTIONS • THIS POWER IS GRANTED BY THE SUPREMACY CLAUSE OF ARTICLE VI OF THE CONSTITUTION. • THE SUPREME COURT HAS OVERTURNED STATE CONSTITUTIONAL PROVISIONS OR STATUTES AND STATE COURT DECISIONS IF THEY ARE DEEMED TO CONTRAVENE RIGHTS OR PRIVILEGES GUARANTEED UNDER THE FEDERAL CONSTITUTIONS OR FEDERAL LAWS. • BROWN v. BOARD OF EDUCATION

28. JUDICIAL REVIEW AND LAWMAKING • WHEN COURTS OF ORIGINAL JURISDICTION APPLY EXISTING STATUTES OR PAST CASES DIRECTLY, THE EFFECT IS THE SAME AS LEGISLATION. • APPELLATE COURTS ARE IN ANOTHER REALM. • THEIR RULINGS ARE LAWS, BUT LAWS GOVERNING THE BEHAVIOR OF THE JUDICIARY. • EXAMPLES: RESTRICTIVE COVENANTS, GIDEON v. WAINWRIGHT • APPELLATE COURTS CANNOT CHANGE PEOPLES BEHAVIOR, BUT THEY CAN MAKE IT EASIER FOR MISTREATED PERSONS TO GAIN REDRESS.

29. (CON.) • DOES THE SUPREME COURT INVOLVE ITSELF IN CASES PREMATURELY? • THE COURT IS FACED WITH THE DILEMMA OF WEIGHING THE RISK OF TWO OPTIONS: • OPENNING NEW OPTIONS • EMBRACING THE STATUS QUO

30. THE SUPREME COURT IN ACTION • HOW CASES REACH THE SUPREME COURT • ORIGINAL JURISDICTION • CASES BETWEEN THE U.S. AND ONE OF THE FIFTY STATES • CASES BETWEEN TWO OR MORE STATES • CASES INVOLVING FOREIGN AMBASSADORS OR MINISTERS • CASES BROUGHT BY ONE STATE AGAINST CITIZENS OF ANOTHER STATE OR AGAINST A FOREIGN COUNTRY • MOST CASES BETWEEN STATES ARE HEARD BY A “SPECIAL MASTER”

31. RULES OF ACCESS • CAN BE BROKEN DOWN INTO THREE CATEGORIES: • CASE OR CONTROVERSY • CASE BEFORE A COURT MUST BE REAL AND NOT HYPOTHETICAL • STANDING • PARTIES MUST SHOW THEY HAVE A SUBSTANTIAL STAKE IN THE OUTCOME OF THE CASE. • MOOTNESS • SHOULD CASES BE DISQUALIFIED BECAUSE THE RELEVANT FACTS HAVE CHANGED OR THE PROBLEM HAS BEEN RESOLVED BY OTHER MEANS.

32. (CON.) • ASIDE FROM FORMAL CRITERIA, PREVIOUS SLIDE, THE SUPREME COURT MAY ACCEPT CERTAIN CASES IF THEY DESIRE TO PURSUE IF THAT IS THE PREFERENCE OF A MAJORITY OF THE JUSTICES.

33. WRITS • A COURT ORDER CONVEYING AN ORDER OF SOME SORT • DECISIONS HANDED DOWN BY LOWER COURTS CAN REACH THE SUPREME COURT IN ONE OF TWO WAYS: • WRIT OF CERTIORARI • WHENEVER FOUR OF THE NINE JUSTICES AGREE TO HEAR A CASE • *NOTE p. 338 FOR REASONS OF WRITS OF CERTIORARI IN RULE 10 OF THE SUPREME COURT • WRIT OF HABEAS CORPUS • IT IS DISCRETIONARY • UTILIZED IN ANY CASES INVOLVING CONVICTED STATE PRISONERS

34. CONTROLING THE FLOW OF CASES • SOLICITOR GENERAL • FEDERAL BUREAU OF INVESTIGATION AND OTHER AGENCIES • FEDERAL LAW CLERKS

35. THE SOLICITOR GENERAL • THIRD IN STATUS IN THE JUSTICE DEPARTMENT BEHIND THE ATTORNEY GENERAL AND THE DEPUTY ATTORNEY GENERAL • TOP GOVERNMENT ATTORNEY IN APPELLATE COURTS CASES WHERE THE U.S. GOVERNMENT IS A PARTY. • MORE THAN HALF THE SUPREME COURT CASES ARE DESIGNATED BY THE SOLICITOR GENERAL • HE SCREENS CASES LONG BEFORE THEY REACH THE COURT. • GOVERNMENT CASES THAT DESERVE CONSIDERATION. • THOSE THAT APPROACH THE COURT WITHOUT THE SOLICITOR GENERAL’S APPROVAL ARE GENREALLY REJECTED PER CURIAM. • AMICUS CURIAE IS A BRIEF WRITTEN BY AN INDIVIDUAL NOT DIRECTLY INVOLVED IN THE CASE YET HAS A VITAL INTEREST IN THE CASE.

36. THE FBI AND OTHER FEDERAL AGENCIES • PROVIDING INFORMATION FOR GOVERNMENT CASES AGAINST BUSINESSES, INDIVIDUALS AND STATE AND LOCAL GOVERNMENT OFFICIALS. • SOLICITOR GENERAL OFTEN ACTS AS AN AMICUS CURIAE OF THE COURT. • TREASURY DEPARTMENT AND BUREAU OF ALCOHOL, TOBACCO AND FIREARMS • IMMIGRATION AND NATURALIZATION SERVICE

37. LAW CLERKS • FOUR CLERKS PER JUSTICE • SCREENS THE THOUSANDS OF PETITIONS FOR WRITS OF CERTORARI • GIVE ADVICE IN WRITING OPINIONS AND DESIGN WHETHER AN INDIVIDUAL CASE OUGHT TO BE HEARD BY THE COURT. • SOME HAVE MAINTAINED THAT CLERKS HAVE ACTUALLY WRITTEN OPINIONS.

38. THE CASE PATTERN • APPELLATE COURTS MAY RESIST TRYING CASES BY ORDERING THEM REMANDED (RETURNED)TO THE COURT OF ORIGINAL JURISDICTION FOR FURTHER RETRIAL. • THEY MAY REJECT SOME CASES WITHOUT GIVING ANY REASON: CERTORARI DENIED PER CURIAM.

39. (CON.) • INTEREST GROUPS TRY TO SET A PATTERN AS A STRATEGY FOR EXPEDITING THEIR CASE. • CHOOSE THE PROPER CLIENT AND THE PROPER CASE, SO THAT THE ISSUES IN QUESTION ARE MOST DRAMATICALLY AND APPROPRIATELY PORTRAYED. • CHOOSE THE RIGHT DISTRICT • THE PROPER POLITICAL CLIMATE. • BRINGING SUIT IN MORE THAN ONE CIRCUIT, HOPING FOR TWO DIFFERENT TREATMENTS LEADING TO A SUPREME COURT REVIEW. • TEXAS CASE OF RIGHT TO FREE PUBLIC EDUCATION FOR CHILDREN OF ILLEGAL IMMIGRANTS.

40. SUPREME COURT PROCEDURES • THE PREPARATION • ORAL ARGUMENT • THE CONFERENCE • OPINION WRITING • DISSENT

41. THE PREPARATION • ATTORNEYS FILE BRIEFS CITING PRECEDENTS TO SUPPORT THEIR ARGUMENTS. • FREQUENTLY AMICUS CURIAE BRIEFS ARE FILED TO HELP STRENGTHEN ARGUMENTS.

42. ORAL ARGUMENT • EACH ATTORNEY HAS 30 MINUTES IN WHICH TO PRESENT THEIR ORAL ARGUMENT. • THIS TIME INCLUDES INTERRUPTIONS BY THE JUSTICES REGARDING QUESTIONS.

43. THE CONFERENCE • CHIEF JUSTICE SPEAKS FIRST • JUSTICES THEN FOLLOW IN ORDER OF SENIORITY • COMPROMISE IS OFTEN THE KEY TO RENDERING A DECISION

44. OPINION WRITING • CHIEF JUSTICE ASSIGNS THE WRITING OF OPINIONS • UNLESS HE IS IN THE MINORITY, THEN THE TASK IS HANDLED BY THE MOST SENIOR JUSTICE IN THE MAJORITY. • CONCURRENT OPINIONS ARE OFTEN WRITTEN • AGREE WITH THE MAJORITY, HOWEVER FOR DIFFERENT REASONS

45. DISSENT • DISSENTING OPINIONS ARE OFTEN MORE INFLUENTIAL OR MEMORABLE MANNER IN WHICH JUSTICES MAY INFLUENCE THE COURT

46. JUDICIAL DECISION MAKING • THE JUDICIARY IS GENERALLY CONSERVATIVE IN ITS PRODEDURES, HOWEVER IT MAY HAVE A RADICAL EFFECT THROUGH TWO INFLUENCES: • INDIVIDUAL JUSTICES • RELATIONSHIPS WITH CONGRESS

47. THE SUPREME COURT JUSTICES • THE COURT’S TENDENCIES HAVE SHIFTED OVER THE YEARS BECAUSE OF CHANGES IN THE COURT’S COMPOSITION AND THE POLICY GOALS OF THE PRESIDENT WHO APPOINTED THEM.

48. ACTIVISM AND RESTRAINT • PROPONENTS OF “JUDICIAL RESTRAINT” ARE GENERALLY STRICT CONSTRUCTIONISTS. • PROPONENTS OF JUDICIAL ACTIVISM ARE GENERALLY INDIVIDUALS WHO BELIEVE THE COURT SHOULD GO BEYOND THE WORDS OF THE CONSTITUTION, OR A LAW, AND CONSIDER THE BROADER IMPLICATIONS OF ITS DECISIONS.

49. POLITICAL IDEOLOGY • ACTIVISM VERSUS RESTRAINT IS OFTEN A SMOKESCREEN FOR POLITICAL IDEOLOGY • IN RECENT YEARS, CONSERVATIVE JUSTICES HAVE BEEN MORE ACTIVE IN ORDER TO OVERTURN MUCH OF THE LIBERAL ACTIVISM OF THE 60s. • WITH JUSTICES INCREASINGLY VOTING IN BLOCS, MANY OF THE COURT DECISIONS HAVE BEEN 5-4.

50. OTHER INSTITUTIONS OF GOVERNMENT • CONGRESS • THE COURT MAY BE INFLUENCED BY CONGRESS BY NOT VOTING THEIR TRUE PREFERENCES, IF THEY FEEL THAT BY DOING SO WILL PROVOKE CONGRESS TO INACT LEGISLATION MOVING STATUTES FURTHER AWAY FROM THE INTENDED POSITION THE COURT WOULD LIKE. • EXAMPLE: NEW DEAL LEGISLATION • PRESIDENT • NOMINATION OF JUDGES