The American Legal System and the Courts

1. The American Legal System and the Courts Chapter 10

2. In this chapter we will learn about The notion of law and the role that it plays in democratic society The constitutional basis for the American judicial system The dual system of state and federal courts in the United States The Supreme Court and the politics that surround and support it The relationship of citizens to courts in America

3. The role of law in democratic societies Provide security Provide predictability Resolve conflict Through the courts Reflect and enforce conformity to society’s values Distribute benefits and rewards society has to offer and allocate the costs of those good things

4. Characteristics of theAmerican legal tradition Based on common law instead of civil law Judges have discretion and follow stare decisis (past precedents) Adversarial instead of inquisitorial Reveal the truth through competing view points vs. “who did it?”, judge as fact finder Litigious 44 lawsuits per 1,000 people annually

5. Kinds of law Substantive laws vs. procedural laws What you can/can’t do…vs. how it’s applied and enforced Criminal laws vs. civil laws Prohibit actions harmful to society vs. interactions between individuals, “torts” Constitutional laws Stated in document, or past decisions on the meaning of it Statutory laws Made by legislative bodies Administrative laws bureaucracy Executive orders

6. The development of judicial review Hamilton and Federalist No. 78 Least dangerous branch of government Court had power of neither the purse nor the sword Approved of judicial review because it would check the momentary passions of the people Constitution as true will of people

7. The development of judicial review, cont’d. Marbury v. Madison “Midnight judges” John Marshall and the expansion of the power of the Supreme Court 4th chief Justice, Federalist, Secretary of State under Adams Used sparingly to strike down federal law (158 times); more frequently to strike down state law (1,261 times)

8. Understanding jurisdiction Courts with original jurisdiction U.S. district courts State trial courts Courts with appellate jurisdiction U.S. courts of appeals State intermediate appellate courts State supreme courts Court with both original and appellate jurisdiction U.S. Supreme Court

10. U.S. district courts Lowest level of federal court system 94 district courts (each state has at least one) Hear both criminal and civil cases Juries responsible for verdict

11. U.S. courts of appeals Arranged into 12 circuits Solely appellate jurisdiction No new evidence or witnesses Panel of three judges makes ruling, not a jury

12. Selection of judges States Method varies by state -Appointment -Nonpartisan election -Partisan election Federal All federal judges are nominated by the president and confirmed by the Senate Senatorial courtesy is often invoked for lower level federal courts

13. The U.S. Supreme Court Nine justices Has varied from 6 to 10 Appointed by the president, confirmed by the Senate Senate—”advice and consent” No Senatorial courtesy for the high court Serve during good behavior What is “good behavior”? Can be impeached

14. Four criteria considered forSupreme Court appointments Merit ABA ratings, FBI background check Reagan nominee Ginsburg (pot smoking) Bush 41 nominee Thomas (sexual harassment case), plus lack of judicial exp. and low ABA score Political ideology Traditional liberal vs. conservative labels Strict constructionist vs. judicial interpretivism These two ideas don’t necessarily fall on each side of the spectrum Reward Sometimes friends, acquaintances, political allies Representation demographics

15. Choosing which cases to hear Petitioning the Supreme Court The role of law clerks The Rule of Four Other influences, including whether U.S. government is a party in the case

16. How many cert petitions are considered? • In recent terms, there have been between 8,000 and 10,000 cases appealed to the Supreme Court each year • Out of approx. 9,000 petitions in the average year, about 70-75 are granted (0.8%)

17. Cert: Cases Disposed in 2008-09 77 cases decided after arguments 0.98% of all petitions! 6,209 IFP Petitions 1,612 paid Petitions + 7822 total Petitions + an additional 1,097 the didn’t get to yet

18. Cert: The Justices’ Role With 9,000 petitions per year: If a Justice spent 40 hours per week, 50 weeks per year ONLY reading cert petitions, they would be able to allocate approximately 13 minutes to each petition (which may include the petition itself, the brief in opposition, a reply brief, and amicus briefs). The Justices cannot possibly read all the cert petitions. They just don’t have the time.

19. The Role of Law Clerks • Heavy-duty research assistants • 1972: “certpool” • Memo summarizing facts of case, questions of law, recommended course of action • Prepare bench memos for oral arguments • Help draft opinions

20. Cert Pool IN the pool NOT in the pool Roberts Scalia Kennedy Souter Thomas Ginsburg Breyer 4 clerks x 7 justices = 28 law clerks read 9,000 petitions Each clerk reads and writes a memo on 320 petitions/yr Stevens Alito 4 clerks x 1 justice = 4 law clerks read 9,000 petitions Each clerk reads 2,250 petitions/yr = =

21. Advantages of the Pool • Saves time • Someone is more thoroughly going over each petition • Clerks from other chambers can mark up pool memos and give to their justice

22. Disadvantages of the Pool • Reduces independence if seven of the nine justices are in the pool and they’re relying on one writer for each memo • The pool gives clerks - generally one year out of law school and only at the Court for one year - too much responsibility for setting the Court’s agenda

23. “Discuss List” • The Chief Justice generates a discuss list, based on memos prepared by clerks. Other justices may add to the list. • All cases generated by Solicitor General (head Supreme Court lawyer for federal government) are automatically discussed • All Capital Cases discussed (no such thing as a “frivolous case” here)

24. The Rule of Four • If four justices vote to grant cert, it is granted • Designed to prevent tyranny of the majority • If a case does not gain four votes, a justice may write a “dissent from denial,” but this is extremely rare • All votes are secret

25. More “cert-worthy” criteria • Conflict in lower courts • Important • Multiple amicus briefs at cert stage • Affects large number of people • Unique/one of a kind case this Court must decide

26. More reasons to deny than to grant! • The issue hasn’t “percolated” enough • A petition that raises too many questions (prefer focusing on one issue) • Bad vehicle for reaching this legal issue • A better case “in the pipeline” • Case is deemed “frivolous”

27. Cases are fungible! • What’s important is the legal issue raised, not the parties or facts • Assumption is: a better case will come along if the issue is important • Don’t want to risk producing a fractured opinion (4-4-1 or 4-2-3 splits)

28. Petitions filed by individuals are less likely to be granted Ranking tends to be: #1 - U.S. government #2 - Corporations #3 - States #4 - Organized groups #5 - Individuals

29. Deciding cases Judicial activism vs. judicial restraint The court as a policymaker vs stare decisis, rejection of lawmaking External factors Public opinion Executive branch Amicus briefs

30. Writing opinions Opinion Chief justice, if in the majority, will assign this opinion to someone in the majority If chief justice is in the minority, senior-most justice in the majority assigns the opinion Concurring opinion Dissenting opinion

31. The citizens and the courts Equal treatment by the criminal justice system Equal access to the civil justice system