The Judicial Branch

1. The Judicial Branch

3. The Judicial Branch • At 375 words, Article III provides the shortest description of any of the three branches of government. It reads, in part: • 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. • The Court’s most important power—that of judicialreview—is never explicitly mentioned in the Constitution.

4. The Power of Judicial Review • Alexander Hamilton’s essay, Federalist #78, makes it clear that the framers intended the Courts to have the power of judicial review. He writes that “the interpretation of the laws is the proper and peculiar province of the courts.” • Hamilton also calls the judiciary “the least dangerous branch” • Marbury v. Madison (1803), which asserted (created) and solidified that power. • Between 1803 and 2009, 162 acts of Congress have been held unconstitutional in whole or in part If this power is not found in the Constitution, where does it come from? There are two early sources:

5. This is the very essence of judicial duty… “It is emphatically the duty of the Judicial Department to say what the law is,” wrote Chief Justice John Marshall in Marbury v. Madison (1803). John Marshall Notice he does not say “sole or exclusive duty”

6. Authoritativeness of Supreme Court • Three theories: • Judiciary final word • No final interpreter – each branch considers constitutionality on its own • Each branch definitive in its sphere

7. S.Ct. concludes it is the final arbiter • Cooper v. Aaron (1958) • States cannot nullify decisions of the federal courts. • Several government officials in southern states, including the governor and legislature of Alabama, refused to follow the Supreme Court's Brown v. Board of Education decision. They argued that the states could nullify federal court decisions if they felt that the federal courts were violating the Constitution. The Court unanimously rejected this argument • City of Boerne v. Flores (1997) • “When the Court has interpreted the Constitution, it has acted within the province of the Judicial Branch, which embraces the duty to say what the law is. Marbury v. Madison, 1 Cranch, at 177. When the political branches of the Government act against the background of a judicial interpretation of the Constitution already issued, it must be understood that in later cases and controversies the Court will treat its precedents with the respect due them under settled principles, including stare decisis, and contrary expectations must be disappointed.”

8. Article III CourtsConstitutional Courts • Supreme Court - One court with national jurisdiction; • Courts of Appeals – 12 geographic-based and one for the Federal Circuit (generally patent cases); • District Courts - 94 in 50 states, District of Columbia, Puerto Rico, the Virgin Islands, Guam, and the Northern Mariana Islands. • Court of International Trade. • United States Court of Federal Claims Article III Judges serve during good behavior and salaries may not be reduced while in office

9. Circuit Courts of Appeal

10. Clarence Thomas (G.H.W. Bush 1991) Antonin Scalia (Reagan 1986) Anthony Kennedy (Reagan 1988) Ruth Bader Ginsburg (Clinton 1993) John Roberts (G.W. Bush 2005) Stephen Breyer (Clinton 1994) Samuel Alito (G.W. Bush 2006) Sonia Sotomayor (Obama 2009) Elena Kagen Obama 2010)

11. Special Federal Courts Created by Congress • Magistrate judges: These judges handle certain criminal and civil matters, often with the consent of the parties. • Bankruptcy courts: These courts handle cases arising under the Bankruptcy Code. • U.S. Court of Military Appeals: This court is the final appellate court for cases arising under the Uniform Code of Military Justice. • U.S. Tax Court: This court handles cases arising over alleged tax deficiencies. • U.S. Court of Veterans' Appeals: This court handles certain cases arising from the denial of veterans' benefits.

12. 2011 Federal Judicial Pay • Chief Justice, Supreme Court: $223,500 • Associate Justice Supreme Court: $213,900 • Circuit CourtJudge: $175,300 • District Court Judge: $174,000 U.S. Senator & U.S. Representative: $174,000

13. Supreme Court Workload • Most cases come to the Supreme Court on Petitions for Writs of Certiorari (from the Latin "to be informed") • Judiciary Act of 1925 (also known as the Judge’s Bill) made the overwhelming bulk of Supreme Court caseload discretionary • To be accepted, a “Cert” petition needs only 4 Justices to vote yes (“The Rule of Four”)

14. Certiorari "Whether or not to vote to grant certiorari strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment. One factor that plays a large part with every member of the Court is whether the case sought to be reviewed has been decided differently from a very similar case coming from another lower court: If it has, its chances for being reviewed are much greater than if it hasn't." • Chief Justice Rehnquist

15. Supreme Court Workload • Term runs from first Monday in October to June of following year • During the 2010 Term, 86 cases were argued and 83 were disposed of in 77 signed opinions (slightly up from the previous term) • That out of a total 7,857 filings (most of which were in forma pauperis petitions (6,299)) • Paid filing actually decreased by 1.5% 2011 Year-End Report on the Federal Judiciary

16. Process in Supreme Court • Briefs • Parties: petitioner and respondent • amicus curiae (“friend of the court”) • Solicitor General (argues cases on behalf of the U.S.) • Oral arguments • Initial vote on the merits and opinion assignment • Opinion drafted and circulated • dissenting or concurring opinions

17. Getting into Federal Court • Federal Courts are courts of limited jurisdiction • That is, there are only certain cases the courts may decide AND there are cases that the courts technically may decide, but determine not to. • Federal courts can hear “cases and controversies”“arising under the Constitution, the laws of the United States, and treaties” (federal-question cases) and cases between citizens of different states (diversity cases). • Original jurisdiction vs. Appellate jurisdiction

18. JusticiabilityIssues: Textual (found in the text of Constitution) • “Case or controversy” requirement • Judges decide only real cases---No advisory opinions • Standing: guidelines • Personal harm must be demonstrated • Sierra Club v. Morton (1972) relaxed standard—“enjoyment of the environment” • Lujan v. Defenders of Wildlife (1992) shift in analysis with shift in court – more required than the Sierra Club standard. • “a litigant must show that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that a favorable decision will likely redress that injury.” • Most recent: Hein v. Freedom from Religion Foundation (2007) (taxpayer may not challenge under Establishment Clause expenditures by the Executive from general funds allocated to Executive branch by Congress • Arizona Christian School Tuition Organization V. Winn (2011) (taxpayer cannot challenge under Establishment Clause program of tax credits for religious purposes rather than expenditures

19. Justiciability Issues Textual • Mootness: will not decide cases when the question will have no impact on the parties • Exception: where nature of the issue is such that judicial review will likely never occur if standard mootness rules applied; e.g. Roe v. Wade: • Adequate and Independent State-law basis for the decision

20. Justiciability Issues Prudential • Political Question Doctrine • Where the issue before the court has been textually committed to another branch of government • Powell v. McCormick (1969)—refusal to seat a congressman because he acted “unethically” is not textually committed to Congress under Article I • Nixon v. U.S. (1992) – refused to decide the scope of the power of the Senate to “try” impeachment charges (federal judge) • Where there is a lack of judicially manageable standards to decide the case on the merits • Baker v. Carr– apportionment– SC battle over manageable standards • Foreign policy/national security

21. Getting into Federal Court • General Deterrents • Costs are very high • But these can be lowered • In forma pauperis: plaintiff heard as pauper, with costs paid by the government • Payment by interest groups who have something to gain (American Civil Liberties Union) • Each party must pay its own way: the “American Rule” • Losing party will pay (fee shifting) only by statute (such as Section 1983 suits and only defendants) or by contract (plaintiff or defendant):

22. Constitutional Interpretation “[i]t is a constitution we are expounding. . . [A] constitution, intended to endure for the ages to come, and consequently, to be adapted to the various crises of human affairs.”Marbury v. Madison • Originalism • Pragmatism

23. Originalism • Original Meaning – Constitution to be interpreted with reference to the meaning of the words in the world of the founders • "Oh, how I hate the phrase we have—a 'living document.‘ "We now have a Constitution that means whatever we want it to mean. The Constitution is not a living organism, for Pete's sake." • Justice Antonin Scalia

24. Pragmatism • Attempts to solve a current problem by placing that problem within the organized whole of past interpretations of the Constitution as they relate to specific problems • Significant reliance on the doctrine of stare decisis (“let the decision stand”) • Lessens significance of the text itself; giving near-constitutional significance to commentary on the text

25. Pragmatism • A non-originalist who gives substantial weight to judicial precedent or the consequences of alternative interpretations, so as to sometimes favor a decision "wrong" on originalist terms because it promotes stability or in some other way promotes the public good.

26. Checks on judicial power • Selecting judges • Party background has some effect on judicial behavior but ideology does not determine behavior • Justice Souter • “Senatorial courtesy” • Protocol, recently ignored, that judges to fill a vacancy in a U.S. District Court should have the approval of the state's senators • The “litmus test” • Concern this may downplay professional qualifications • Greatest effect on Supreme Court

27. Checks on judicial power • Congress and the courts • Confirmation and impeachment proceedings alter the composition of the courts • Only 11 nominees have been rejected by the full Senate (last in 1987—Robert Bork) • Impeachment power most often used against federal judges

28. Checks on judicial power • Congress and the courts • Changing the number of judges (1866 reduce number to 7 so that Pres. Johnson could not make appointments) • Altering jurisdiction of the courts and restricting remedies • E.g. Military Commissions Act (MCA) of 2006 • Revising legislation declared unconstitutional • But see City of Boerne v. Flores • Constitutional amendment (e.g.11th Amendment, 14th Amendment and 16th Amendment)

29. Judicial Policymaking • Each time a court reaches a judgment on a case involving a federal question, it makes policy. This can occur when: • Judges interpret prior judicial decisions (common, or judge-made law) • Judges interpret legislation– statutory construction • Judges interpret the Constitution

30. Public perception of the Supreme Court BUSH V. GORE&CITIZENS UNITED V. FEC

31. Pending Health Care Law Cases Should the Supreme Court Justices be subject to conflict of interest rules?