Judiciary

1. Judicial Branch: the job of interpreting the Constitution Judiciary

2. 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. -Article III section 1- Source

3. Explain what “judicial review” is, and trace its origin in this country to Marbury v. Madison Objective 1

4. Original jurisdiction: where the case is heard first, usually in a trial. Appellate jurisdiction: cases brought on appeal from a lower court. Jurisdiction

5. Judicial review: the right of the federal courts to rule on the constitutionality of laws, executive actions, and lower court rulings • It is the chief judicial weapon in the checks and balances system. • Not directly expressed in the Constitution Judicial Review

6. In the final days of John Adams’ presidency the outgoing president tried to stack the federal government with Federalist judges One of the 42 “midnight judges”, William Marbury’s commission was not signed before the new Democratic-Republican administration took over James Madison, Secretary of State, had to decide whether or not he would sign it. He did not, and he would not release them Marbury v. Madison

7. After months of delays the case came before the Supreme Court Madison did not even send a lawyer to argue his case because he thought it was sure he would lose Marbury demands the SCOTUS issue a writ of mandamus (forcing a public official do something) which would force Madison to release the commission The court led by Chief Justice John Marshall ruled that a portion of the Judiciary Act of 1789 was unconstitutional This established the doctrine of judicial review Marbury v. Madison

9. The Marbury decision depended on the Supreme Court having their ruling enforced. By ruling against Marbury Marshall was able to establish Judicial Review without offending Jefferson • Expanded to lower court rulings in Cohens v. Virginia • Worcester v. Georgia (Indian removal) • Jackson “John Marshall has made his decision; now let him enforce it.” Enforcement

10. SCOTUS has used Judicial Review over 164times against national laws SCOTUS has used Judicial Review to invalidate 1,303 state laws If the court has final say, who checks the court? Judicial Review

11. Explain what is meant by a “dual” court system and describe the effects it has on how cases are handled and appealed Objective 2

12. Criminal case results when an individual violates a law and is prosecuted by the government (national or state) Civil cases stem from disputed claims of something of value (can be something tangible like family assets or more abstract like rights to equal accommodations). Criminal vs. Civil

15. When does a crime go to a federal court instead of a state court? Many times depending on how high profile the case is, a federal prosecutor will step in and press charges Also if the penalty is higher in either the state or federal law that may be sought by the prosecutor Federal vs. State

17. 94 federal district courts Each state has at least one district 665 federal judges split among the districts Most federal cases begin here District courts look like the courtrooms in movies, with a judge, lawyers and juries Federal District Courts

18. Federal criminal cases • Robbing a federally insured bank, blowing up a federal building, killing a federal employee • Civil cases – brought by individuals, groups, or the government alleging violation of national law • Brown v. Board, failure of a city to implement pollution control regulations mandated by the EPA • Civil cases brought against the national government • Boeing sues the DOD for not taking delivery of the B3 bomber • Civil cases between citizens of different states (diversity of citizenship) when the controversy exceeds $70K What cases go to District-level courts?

19. 167 judgeships No juries, no witnesses, no cross-examinations, sometimes no oral arguments (briefs are very important) Appeals courts do not retry a whole case, they deal with one issue. Think of them like a hearing. For example, was it proper for a district court judge to allow blood evidence to be admitted as evidence. You are not guaranteed an appeal. Decisions of one circuit do not apply to other circuits but are precedent for their circuit Federal Courts of Appeal – Circuit Courts

21. Women on the bench

22. Blacks on the bench

23. Hispanics

24. With the court split Right vs. Left who actually has the power on this “Supreme Court”? Elena Kagan Samuel Alito Ruth Bader Ginsberg Sonia Sotomayor Anthony Kennedy John Paul Stevens John Roberts Anthony Kennedy Antonin Scalia Clarence Thomas

25. POTUS appoints federal judges • Constitution lists no requirements for those who serve as Supreme Court Justices (age, education, job history) • Senate must confirm all nominees “advice and consent” (Article II Sec. 2 Clause 2) • Shall serve during “good behavior” (Article III Sec. 1) Appointment

26. List the various steps that cases go through to be appealed to the Supreme Court and explain the considerations involved at each level (this will be expanded upon in the Civil Liberties Lecture too) Objective 3

27. Original Jurisdiction – Very rare • “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a party.” Article III, Section 2 • Appellate Jurisdiction • Congress has given the Courts the right to hear appeals (they could take it away!) • Litigants in state cases must show their case raises a federal question & have exhausted appeals • Most appeals are denied (they decide less than 100 out of 8,000 appeals a year) • Solicitor General (in the DOJ) represents the US in front of the SCOTUS and which federal cases the government should appeal • Writ of Certiorari are the most common way to the court Sources

28. The Rule of Four: Writ of Certiorari

29. 1. Rule of Four – 4 Justices must agree to hear the case (writ of certiorari) • 2. Case placed on docket (schedule) • 3. Briefs are submitted • Including briefs from people other than those named in the case, amicus curiae (friend of the court) • 4. Oral Arguments • 30 minutes per side – Justices may question at any time • October – April How it is argued

30. Need video Clip Boston1.mpg

31. 5. Conference • Super-secret meetings on Wednesdays and Fridays • Chief presents each case and each justice announces his/her vote. The judgment is tentative and remains a secret until the opinions are released (often months later). Justices can change their vote at any time until the judgment is announced – often on ‘Decision Monday’ How it is argued

32. Need video clip judicial conferencing process.mpg

33. 6. Opinion is written – it often takes many months and many drafts • Majority Opinion – Justices in the majority must draft an opinion setting out the reasons for their decision. If the Chief is in the majority he gets to decide who writes the opinion. • Concurring Opinion – Justices who agree with the judgment, but for other reasons than those articulated in the majority opinion. • Dissenting Opinion – Justices who disagree with the opinion write a dissenting opinion • Per Curiam Opinion – An opinion that announces the judgment and is not intended to carry value as precedent – used when time is of the essence How it is argued

36. Discuss the dimensions of power exercised today by the Supreme Court and the opposing viewpoints on the desirability of activism of that court Develop arguments for and against an activist Supreme Court Objective 4 & 5

37. Judicial activism: judges should look to the underlying principles of the Constitution, and this can result in new policy. • Philosophy that the courts should take an active role in solving social, economic and political problems. • Examples • Protecting privacy (Griswold v. Connecticut, Roe v. Wade) • Requires state to provide legal aid for the poor (Gideon v. Wainwright) Constitutional Interpretation

38. Strict construction/judicial restraint: judges are bound by the wording of the Constitution Other two branches of the federal government to solve social, economic and political problems Courts should merely interpret the law rather than make law Constitutional Interpretation

39. List and comment on the three eras of varying Supreme Court influences on national policy in the later half of the twentieth century Objective 6

40. Warren Court (1954-1969): Heavily judicially active • Gideon v. Wainwright, Mapp v. Ohio, Griswold v. Connecticut, Brown v. Board of Education • Burger Court (1969-1986): Less activist that Warren • Roe v. Wade • Rehnquist Court (1986-2005): Accused by liberals of being too activist, excessively active on: • Overturned: Gun Free Zones Act, Line-Item Veto, Florida Supreme Court decision (Bush v. Gore) Constitutional Interpretation

41. Need roberts.mpg video clip

42. Today: most activists tend to be liberal, most strict constructionists tend to be conservative Which way is the Robert’s Court going? Due next class a one page explanation of which way the court is going. Three reasons (cite one court case) Constitutional Interpretation