G-14: The Courts

1. G-14: The Courts The U.S. Supreme Court

2. Chapter 14- The Courts • (1). Examine roles of the Constitution & Congress in creating the Federal Courts. • (2). Discuss the structure of theFederal Court System at its various levels, including: District Courts, Courts of Appeal, and contrastoriginalvs.appellate jurisdiction. • (3). Examine the origins of Judicial Review and the role of Marbury v. Madison. • (4). Contrast judicial activismwith judicial restraint, and define stare decisis. • (5). Discuss the various limitations placed on the Federal Courts. • (6). Examine the characteristics of the Supreme Court and discuss its make up. • (7). Discuss the politics of selection, and explain how judges are nominated & confirmed. • (8). Discuss the judicial & ideological impact of Presidential appointments on the Court. • (9). Explain the decision process used by the Supreme Court to determine cases, and define & explain: Rule of four, amicus curiae, andstare decisis. • (10). Examine the different types of Supreme Court opinions, and contrast majority, concurring, and dissenting opinion, and explain how & why they are different. • (11). Analyze member voting patterns and discuss who usually wins before the Court. • (12). Examine the role of the lower Federal Courts, and discuss the key role played by the Senate during the nomination and confirmation process. • (13). Discuss the State Court system, its diverse organizations, and its judicial selection

3. The Federal Courts • Judiciary: The Third Branch of Government • Joint creation of the Constitution & Congress • Courts established & abolished as required w/times (by who?)

4. The Constitution and the Federal Courts • Founders: independent court system crucial to success • Article III: • “judicial power … vested in one supreme Court” • also lists Court’s jurisdiction (Original vs. Appellate) • Article II: presidential appointment power => judges • With Senate’s “advice & consent” (vote to confirm?) • Congressional impeachmentand removal power • Organization & structure (any blueprint details?) • Details left to who? How? • Article III’s role?

5. Congress and the Federal Courts • Judiciary Act of 1789 • Established Chief Justice & 5 associated justices • Basic levels of Federal Court Systemto consist of: • Supreme Court • Circuit Courts • District Courts • Modified throughout US History=> (# of justices) • Court of Appeals Act of 1891 => established: • Supreme Court, Appeals Courts,*& District Courts* • *Number of Courts increased by Congress w/population +

6. Congress and Federal Courts (Types) • Type of Federal Courtdepends on its source: • Those created or stemming from Article III => • Referred to as: constitutional courts (or Article III Courts) • These Federal Court Judges appointed & confirmed for life • Federal Courts created by Congress (Article I) => • legislative courts(Article I Courtsor Tribunals)* • Judges for these courts serve fixed terms (14-15 years)

7. Two Types of Federal Court Groups ?___________ Courts ?___________ Courts • The three-tiered system of Federal District courts, Courts of Appeal (originallycircuit courts), and theSupreme Court. • Article IIIof the Constitution provides for the creation of these courts. • Judges serve for life • Various Administrative CourtsandTribunalsthat Congress establishes • Created by Congress asneed arises by power established inArticle Iof the Constitution. • Judges serve fixed terms

8. Federal Court System (Article III)Three Tier Configuration ?___________ (Both kinds of Jurisdiction*) ?___________ (Appellant Jurisdiction) ?___________ (Original Jurisdiction)

9. Federal Court System (Article I Courts)AKA: ?_______ Courts Tribunals Appeals & others Administrative

10. US Federal Court System Article ? Which Courts are Article III & which are Article I? State ?_________ Courts Article ? Article ? Article ? Article ? Article ? VA Appeals

11. US Circuit Courts

12. Federal Courts as Policy Makers • Judicial Reviewversus Judicial Activism • Courts role in Policy Making • Constitution’s broad outline => open to interpretation • Evolution & status of Supreme Court’s power • Role of precedence: • Article VIand establishment of National Supremacy • Based on Court’s decision inMcCulloch v. Maryland • Marbury v. Madison& establishment of key precedence • Key role of Chief Justice John Marshall • Marshall’s decision established what key Court power?* • Judicial ?___________* (significance?) • New power of the Court established – what power? • Court’s power to declarelaws ?____________ (Fig 14-3)

13. ?_______ Review • ?___________ review is the doctrine allowing the Supreme Court to review and overturn lawsmade by Congress and decisions made by the president. What happens when Judicial Review is taken to extreme? Judicial ?___________ • ?__________?___________ • is the vigorous use of judicial review to overturn laws and make public policy from the federal bench.

14. Limitations on the Courts • Limitations constraining Judicial Actions: • Reactive nature of the Courts • Inability to enforce Court rulings (depends on who?) • Ability Of Congress to ?____ new?______ (or modify) • Or President to modify executive ?___________ • Public Opinion (gradual impact) • Trend toward moderate decisions (Figure 14-4)* • Narrow interpretation of the law the norm=> narrow rulings • Court’s need to maintain Public’s perception of Legitimacy • Avoid sweeping changes to precedence (O’Connor vs. Scalia)

15. Supreme Court as a Political Institution Who serves on the Court? The Characteristics of the Court Different paths to taken the Supreme Court (Box 14-1)

16. Supreme Court Ideological Direction Civil & Criminal Rights (Miranda) Roe v. Wade

17. Chief Justice of the United States • Role of the Chief Justice of the United States • Position vaguely described in Article I/Sect. 3’s ref. • (“When president is tried the Chief Justice shall preside…” • Tradition: first among equals (but with definite limits) • Presides over Court and Impeachment of President • Potential impact on Court’s direction • Assigns Justice who drafts the Court’s opinion when in the majority • Warren Court vs. Burger Court vs. Rehnquist Court vs. Roberts • Rewards for service to the Court: • Socio-economic status & salary: $208,100/year & $217.400 for Chief • Prestige and Job satisfaction & fulfillment: nation’s business • Have lasting influence on future Court Rulings=> set Precedence • Service lasts far beyond that of their appointing President*

18. Presidential Impact on The Supreme Court G. W. Bush John Roberts Samuel Alito 2010

19. Politics of Nomination and Confirmation • Inherently politically process – why? • Presidential ?_______ => impact of choice long after confirmation • Reasons for contested nominations: • Perception of presidential weakness • President’s party in minority in Senate • Lack of credentials or weak character of nominee • Legal views clash w/powerful members of Senate & IGs • Robert Bork’s paper trail of controversial opinions at Harvard • Rejected by influential special interests of own party members (Miers) • Recent trends: increased blocking of nominations • Judicial philosophy “Litmus test” on key moral issues • GOP threat to change the Senate rules on confirmation • Reason: High stakes involved=> future make up of the Court (5/4) • Future Court majority & its judicial philosophy=> How the Court rules

20. Presidential Legacies on the Supreme Court • President’s theoretical impact as shown by slide 18 • Legacy left after departure • NTL voting consistency with the President not guaranteed • Sometimes Justices take unexpected positions • O’Connor (appointed by Reagan) voted moderate on sex discrimination cases • David Souter (Bush I appointment) votes routinely with the Liberal side – why?*

21. Judicial & Ideological Leanings • Justices’ legal views may change over time • Ike appointed Earl Warren (Conservative California Governor) • But Chief Justice Warren ended up leading a very liberal Court • Numerous rulings of the Warren Court expanded Civil Liberties& Civil Rights (Miranda Rights & Gideon, and Brown v. Ed.) • Judicial & Ideological leanings of previous Rehnquist Court illustrate how new members can change the Court: current Roberts’ Thomas Kennedy Stevens Souter Ginsburg & Breyer Scalia Rehnquist Alito O’Connor Roberts Result: Narrow Rulings Often 5 to 4 split

22. Next Assignment • Chapter 14 Learning Objectives 9-14 • Quiz on Key Terms Chapters 11-14 (Part III) • (Immediately following Chapter 14b discussion) Questions?

23. Decision Making at the Supreme Court • Hearing a Case: • writ of certiorari* (versus those cases appealed- Figure 14-6) • Role of law clerks (screening) & the Rule of Four* • Amicus curiae* briefs • Number of cases appealed to the Supreme Court: In 2008: 10,000 Compare with number actually heard by Supreme Court & lower courts

24. Appeals versus Cases Heard (10,000 appealed)

25. Decision to Hear a Case- Key Terms Writ of ?_________ Rule of ?_________ A Supreme Court order for a lower court to send it the records of a case–the first step in reviewing a lower court case The Supreme Court rule that at least ?_____ justices must decide that a case merits a review before it goes on the Court's schedule

26. Factors Affecting Case- Key Term amicus ?_________ Literally, friend of the court. A brief filed with the court by a person or group who is not directly involved in the legal action but who has views on the matter.

27. Factors Affecting Court Decisions • Individual Decision Making: • The role of life experience (Justice O’Connor) • The role of Precedence => stare decisis* *Doctrine that previous Court Decision should be allowed to ?_________ – Precedence

28. Supreme Court Opinions- Different Types? • Three different types of Court Decisions: • 1. ?_________ opinions • 2. ?_________ opinions • 3. ?_________ opinions • Examine more closely*

29. Supreme Court Opinions ?_________Opinion ?_________ Opinion ?__________ Opinion The document announcing and usually explaining the Supreme Court's decision in a case. A statement from one or more Supreme Court justices agreeing with a decision in a case, but giving an alternative explanation for it. A statement from one or more Supreme Court justices explaining why they disagree with a decision in a case. • Voting Patterns: • Predictable positions of Supreme Court justices • “5-4” Decisions & the role of Justice Kennedy

30. Who Wins Before the Supreme Court? • ?___________ General • ?___________ General’strack record (67%) • Experience & frequency before the Court • Only strong cases only need apply • Court’s political independence (Nixon tapes) • Unanimous agreement to turnover tapes • Do rich do better than the poor before the Court? • Deciding on the merits (Lower levels vs. top level)

31. The Lower Federal Courts - District Courts • Created by Congress (based on Article III) • Political appointment process (strong Congressional influence) • District Courts(DC): • Purpose & focus: establish the facts of the case • In most cases => decide fate (end of trial or appeals) • Most DCcases are civil cases (80+%) vs. criminal (mostly state) • Statutory actions & Petitions from prisoners • Civil rights complaints & Tax suits • Bankruptcies & Contract enforcement & Liability claims • Main DC job: Apply the law as defined by Congress • Little flexibility (w/some limited opportunities)

32. Courts of Appeal • Decide cases appealed fromDistrict courts • Appellate Jurisdiction (aka:Appellate courts) • Focus: legal issues tried in district or state: • Courts of Appeal determine if trial was fair • Examine if the Judge applied law correctly • (Do not determine facts of case =>who does?) • ?________ courts • Result: Appellate courts given: • more flexibility to interpret & extend the law

33. Nomination and Confirmation • Nominees to District & Appeals Courts • Are also nominated by the President & confirmed by the Senate • Senate has greater say at District & Appeal Court levels • Role of Senatorial Courtesy?* • By tradition, the president selects a nominee from a list supplied by the senator of the president’s party from the state or region where the vacancy occurs.

34. Partisan Politics of Nominations • Partisan politics alive & well in selection process • (Table 14-1)* => breakdown of partisan politics • Note Presidents Reagan’s & Clinton’s legacies

35. State Courts • Get the majority of all cases heard (100M vs. 265K): • State Courts also operate differently from Federal Courts • Primary State Court focus: • Criminal trials (versus Civil) • States vary in organization from state to state • Also vary in selection of judges & term limits • State CourtOrganization: • Broad range of variety of forms, structures, & names • All have Supreme Courts or courts of last resort • All vary in the extent they protect citizens’ rights • Many go beyond US Constitution • Some act as legal “path finders” for nation

36. Judicial Selection to State Courts • Method of selection varies from state to state • Model used follows own state (vice Federal) selection model: • 1. State legislature chooses • 2. Voters elect => both in partisan & non-partisan elections • 3. Some in variations & combinations of above • Missouri Plan • Appointment (by Governor) & election combination • Seven member commission submits list to Governor for selection • Appointed for 1 year term => then must stand for reelection • Merit System • Variation of Missouri Plan • Goal: reduce partisan politics • Selection method used & its impact on Justice: unclear

37. Length of Service for State Judges • Most state judges serve for fixed terms • In contrast to Federal Judges: removal easier: • 1. Reelection defeat • 2. Recall (by the voters) • 3. Disciplinary commission action for wrong doing • Elected judges must raise campaign funding • Results in a Trade off: • Judicial independence vs. political Responsiveness* • *Special interest or at least perception of obligation • (Especially to Trial Lawyers who contribute and present cases before them)

38. State Laws & their variance • Laws & punishment vary state to state: • Death penalty (38 versus 12 states) • Abortion rights • Social or Morality oriented laws (Nevada vs. NC) • Gun control laws (Figure 14-7)* • National uniformity & the Bill of Rights • Supreme Court’s interpretation of US Constitution • Apply “equal protection” of liberties to all • In other cases leave judicial discretion to the States

39. States Allowing Concealed Weapons

40. Regulating Paramilitary Groups

41. Next Week’s Assignment (Week 12) • Class 12a: Test II (Part 3 Key Terms) • Review all Key Termspresented in Chapters 11-14 • Both their definitions and how there are applied • Understand their application in context to Los • Review Class Notes for Chapters 11-14 • Questions asked and discussed in class are good examples • Power point presentations available for download (DRich 113) • Class 12b: Chapter 16a- The Federal Budget • Learning Objectives 1-7 • Review Test II results • Today: Quiz on Part 3 Key Terms& Review

42. Chapter 14: The Courts-KEY TERMS • Amicus curiae: Literally, friend of the court. A person or group that files a legal brief in a case they are not directly involved in. • Concurring opinion: A statement from one or more Supreme Court justices agreeing w/decision in a case, but giving an alternative explanation for it. • Constitutional courts: The three-tiered system of federal district courts, courts of appeal (originally circuit courts), and the Supreme Court. Article III of the Constitution provides for the creation of these courts. • Dissenting opinion: A statement from one or more Supreme Court justices explaining why they disagree with a decision in a case. • Judicial activism: The vigorous use of judicial review to overturn laws and make public policy from the federal bench. • Judicial review: The doctrine allowing the Supreme Court to review and overturn decisions made by Congress and the president. • Legislative courts: Various administrative courts and tribunals that Congress establishes, as Article I of the Constitution provides.

43. Chapter 14: The Courts-KEY TERMS (2) • Majority opinion: The document announcing and usually explaining the Supreme Court’s decision in a case. • Marbury v. Madison: The Supreme Court decision in 1803 that established the principle of judicial review. • Missouri Plan/Merit System: The system some states use to select judges, appointing them but requiring them to stand for periodic reelection. • Rule of Four: The Supreme Court rule that at least four justices must decide that a case merits a review before it goes on the Court’s schedule. • Senatorial courtesy: The practice a president follows in choosing a nominee for a district or appeals court judgeship. The president selects a nominee from a list supplied by the senator of the president’s party from the state or region where the vacancy occurs. • Stare decisis: The doctrine that previous Supreme Court decisions should be allowed to stand. • Writ of certiorari: A Supreme Court order for a lower court to send it the records of a case—the first step in reviewing a lower court case.

44. Back-up Slides

45. Laws Declared Unconstitutional (1799-1999)

46. The Justices’ Caseload The Court’s caseload has increased steadily to a current total of more than 10,000 cases on the docket per Term. The increase has been rapid in recent years. In 1960, only 2,313 cases were on the docket, and in 1945, only 1,460. Plenary review, with oral arguments by attorneys, is granted in about 100 cases per Term. Formal written opinions are delivered in 80 to 90 cases. Approximately 50 to 60 additional cases are disposed of without granting plenary review. The publication of a Term’s written opinions, including concurring opinions, dissenting opinions, and orders, approaches 5,000 pages. Some opinions are revised a dozen or more times before they are announced. [The foregoing was taken from a booklet prepared by the Supreme Court of the United States, and published with funding from the Supreme Court Historical Society.]

47. Justice Who Replaced Sandra Day O’Connor • President Bush picked Alito for Supreme Court— President Bush, stung by the rejection of his first choice, nominated Samuel Alito to the Supreme Court, selecting a conservative federal judge to replace retiring Justice Sandra Day O'Connor, a moderate.