Judiciary Branch

1. Judiciary Branch AP Government

2. I. Intro • In comparison to the other two branches of government, the Judiciary was by far the weakest branch when the Constitution was written • Article III, as written, didn’t give any enumerated or implied powers to the judiciary branch

3. I. Intro • In its early years of existence, the judiciary was called the “least dangerous branch” for a reason - it was limited in size and had not yet developed its power of judicial review • It had no enforcement powers and could not raise or spend money

4. I. Intro • Why is the Court so powerful today? • First, the Court has the power of judicial review, which is the chief weapon the Court uses in our system of checks and balances • Second, the Court is constantly ruling on the most important constitutional issues of the day, making decisions involving millions of dollars and affecting millions of people

5. I. Intro • It’s important not to think of the Court only as a legal entity: it is a political institution that makes both policy and law

6. II. In the Beginning A. Creation of the National Judiciary • Because the Founders saw the judiciary as the weakest branch, they decided to place federal justices above the fray of politics by giving them life tenures and did not require them to run for office

7. II. In the Beginning A. Creation of the National Judiciary • The third branch of government began to take shape in 1789 with the passage of the Judiciary Act of 1789 • This act created the basic three-tiered structure of the federal court system: • The district courts that exist in every state • The circuit courts which served as appellate courts beginning in 1891 • The highest court in the land, the Supreme Court

8. II. In the Beginning B. The Marshall Court • John Marshall is considered to be the most important chief justice to ever serve on the Supreme Court for two main reasons: 1. His length of service on the Court - gave the Court the stability and respect it needed 2. His influence - implementation of judicial review which strengthened the federal government (cases like Marbury; McCulloch; Fletcher v. Peck)

9. III. Common Law Traditions • The Court’s decisions are called precedents (d) - Decisions that will serve as a guide for future cases • This reliance on precedent derives itself from English Common Law that emerged in 12th century England • Back in medieval England, judges would or the king would make law that would become common throughout the land

10. III. Common Law Traditions • Common law then, operates under the principle of stare decisis(d) - “Let the decision stand” • Gives our American Legal system both predictability and stability • The principle of stare decisis is crucial because without it, laws could be constantly changing - making life chaotic • Common law, then, is judge-made laws that over time, becomes common to all of society

11. IV. American Legal System A. Dual Court System • There is one federal court system and 50 state court systems that exist concurrently • Cases may be heard in either system and both systems are basically three-tiered, as established by the Judiciary Act of 1789 • Before a state or federal court can hear a case, it must have jurisdiction-that is, the power to hear a case

12. IV. American Legal System • Jurisdiction Terms Original Jurisdiction (d) - Where a case is first heard. The court decides the facts of the case (usually trial court with jury) Appellate Jurisdiction (d) - Hears an appeal from the party that LOST at the first level. This court does not concern itself with the facts of the case but whether or not the trial was fair. In other words, was due process followed?

13. IV. American Legal System C. State Jurisdiction • State courts can have both original and appellate jurisdiction. • State Supreme Courts (AKA Superior Courts) has the final word in state system. These courts can do one of two things: • Affirm (approve) the lower court’s ruling • Reverse the lower court’s ruling and grant a new trial

14. IV. American Legal System D. Federal Jurisdiction • The federal courts has jurisdiction in all cases involving: 1. Hears cases involving federal laws, treaties or the US Constitution. All issues beyond the scope of the states 2. Lawsuits between citizens of different states; foreign countries where the money involved exceeds $75,000

15. V. Sources of American Law D. Federal Jurisdiction • The body of American law includes: • Federal and state constitutions • Statutes passed by legislative bodies • Aadministrative law and case law – the legal principles expressed in court decisions

16. V. Sources of American Law A. Constitutions • The constitutions of the federal government and the states set forth the general organization, powers and limits of government • The U.S. Constitution is the supreme law of the land • A law in violation of the Constitution, no matter what its source, may be declared unconstitutional and thereafter cannot be enforced

17. V. Sources of American Law A. Constitutions • Similarly, the state constitutions are supreme within their respective borders (unless they conflict with the U.S. Constitution or federal laws and treaties made in accordance with it)

18. V. Sources of American Law B. Statutes and Administrative Regulations • Statutes (laws enacted by legislatures) increasingly have become more important in defining the rights and obligations of individuals • Federal statutes may relate to any subject that is a concern of the federal government and may cover areas ranging from hazardous waste to federal taxation

19. V. Sources of American Law B. Statutes and Administrative Regulations • State statutes include criminal codes, commercial laws and laws relating to other matters • Cities, counties and other local political bodies also pass statutes, which are called ordinances • These ordinances may deal with such issues as zoning proposals and public safety

20. V. Sources of American Law B. Statutes and Administrative Regulations • Rules and regulations issued by administrative agencies are another source of law • Today, much of the work of the courts consists of interpreting these laws and regulations and applying them to circumstances in cases before the courts

21. V. Sources of American Law C. Case Law • The decisions rendered by the courts also form an important body of law, collectively referred to as case law • Case law includes judicial interpretations of the types of law just mentioned – constitutional provisions, statutes and administrative agency regulations

22. V. Sources of American Law C. Case Law • It is up to the courts, particularly the Supreme Court, to decide what a constitutional provision or a statutory phrase means • In doing so, the courts, in effect, establish law • Remember, the Constitution means whatever the Supreme Court decides it says!

23. VI. Federal Court System B. Types of Federal Courts 1. US District Courts • District Courts (94) - where 90% of all federal cases end • Each state has at least one district court and some states (California, Texas and New York) have four  • California’s 9th circuit is huge: it covers an area from the Arctic Circle to the Mexican border - with rulings affecting almost 50 million people

24. VI. Federal Court System B. Types of Federal Courts 1. US District Courts • This is where the majority of federal cases are heard and decided with original jurisdiction

25. VI. Federal Court System B. Types of Federal Courts 1. US District Courts •  Federal jurisdiction at the district level involves one of the following: • The federal government is named as a plaintiff or defendant • There is a federal question to be decided (treaty ; federal statute; violation of federal criminal or civil law) • There is a civil suit involving citizens from different states that is more than $50,000

27. VI. Federal Court System B. Types of Federal Courts 2. US Court of Appeals •   There are a total of 13 Court of Appeals, also known as Circuit Courts • Has only appellate jurisdiction • The losing party at the district level can appeal the decision to the appropriate court of appeals

28. VI. Federal Court System B. Types of Federal Courts 2. US Court of Appeals •  Court of Appeals has two types of jurisdiction: • Only have appellate jurisdiction. Will hear criminal and civil cases from district court • Appeals from administrative agencies (called the DC Circuit Court of Appeals-very important court)

29. VI. Federal Court System B. Types of Federal Courts 2. US Court of Appeals •  The appellate courts do not look at the facts of the original decision nor do they hear evidence or witnesses • They simply decide if the original court’s trial was fair and if the judge was correct in his/her rulings. •  The Court of Appeals hears are usually the court of last resort because the Supreme Court accepts very few cases

30. VI. Federal Court System B. Types of Federal Courts 2. US Court of Appeals •   Courts of Appeals never hear new evidence and never have juries • They try and correct errors of law and procedure that happened in the district courts • The Court of Appeal decision is only binding in their area of jurisdiction • For example, Hopwood v. Texas is only valid in the 5th Circuit

31. VI. Federal Court System B. Types of Federal Courts 3. US Supreme Court •  In our system, the Constitution is the highest law in the land and the Supreme Court is the last word on what is constitutional or not • In the words of Justice Charles Evans Hughes, “(The Court) is under the Constitution, but the constitution is what we say it is”

32. VI. Federal Court System B. Types of Federal Courts 3. US Supreme Court •  The Supreme Court’s decisions are binding on the whole nation and cannot be appealed or reversed except by the Court itself or by congressional statute or amendment • The Court’s decisions are called precedents - decisions that will serve as a guide for future cases

33. VII. Supreme Court At Work A. Which Cases Reach the SC?  • Most of the cases the Court hears involves appellate jurisdiction (94%), appeals from lower federal courts or from the state supreme courts

34. VII. Supreme Court At Work A. Which Cases Reach the SC?  • The Court gets asked to hear cases from thousands of litigants every year - almost 8,000; of which the Court will only grant 80-90 writs of certiorari (made more certain) • (d) - A common law writ issued by a superior court to one of inferior jurisdiction demanding the record of a particular case

35. VII. Supreme Court At Work A. Which Cases Reach the SC?  • The Court will look at two criteria’s in deciding whether or not to grant cert: 1. The case must come from the US Court of Appeals or State Supreme Court. (Might have been decided differently by different courts of appeals or a lower court’s ruling disagrees with the Supreme Court’s views) 2. The case must involve an important federal question. (Wider constitutional implications beyond the two parties involved)

36. VII. Supreme Court At Work A. Which Cases Reach the SC?  • All cases that the Justices might consider are placed on the discuss list; then if four (Rule of Four) Justices agree to hear the case, the court will “grant cert”

37. VII. Supreme Court At Work A. Which Cases Reach the SC?  • Sometimes the Court, in rare instances, will hear cases involving original jurisdiction (is actually in Article III): 1. Cases involving disputes between two or more states. As was the case of Bush v. Gore, 2000 2. The United States and a state 3. Foreign ambassadors and other diplomats 4. A state and a citizen of that state

38. VII. Supreme Court At Work B. Deciding Cases • The Supreme Court’s term lasts from the first Monday in October through July •   The Court first will hear from interested parties in the case - mostly interest groups that will write amicus curiae briefs that try and lobby the Justices before oral arguments are even delivered in Court

39. VII. Supreme Court At Work C. Decisions and Opinions • There are basically four types of opinions that can be delivered: • Majority Opinion • Concurring Opinion • Dissenting Opinion • Per Curiam Opinion

40. VII. Supreme Court At Work C. Decisions and Opinions • Majority opinion (the official opinion of the court): is written by one member of the Court and reflects the majority of the justice’s views • Concurring opinion: written by a justice who agrees with the majority decision but for a different reason (usually done for future precedents)

41. VII. Supreme Court At Work C. Decisions and Opinions • Dissenting opinion: one that is written by one or more justices who disagree with the majority • Per Curiam opinion: an unsigned opinion issued by the Court

42. VII. Supreme Court At Work C. Decisions and Opinions • If the Chief Justice is in the majority, he/she will assign the job of writing the decision • If the Chief Justice is in dissent, the most senior judge in the majority will assign the decision

43. VII. Supreme Court At Work C. Decisions and Opinions • In issuing an opinion, the Court must provide legal reasons for its positions • These published opinions are very important because they will be used as precedents for the lower courts • After the opinion is decided, the Court will “remand” the case back to the lower courts, sometimes for a new trial

44. VIII. Selection of Federal Judges A. Judicial Appointments • Presidents generally will only nominate judges of their own party to the federal bench (litmus test) • During the Reagan-Bush era, 553 basically conservative Republican judges were appointed to the lower federal bench • Led many liberal groups like the ACLU to limit their practice of bringing civil liberties cases to the federal courts.

45. VIII. Selection of Federal Judges A. Judicial Appointments • All presidents want to leave their ideological legacy on the federal bench after they retire • Some scholars say that the “Supreme Court follows the election returns” • Some federal justices who dislike a sitting president will wait until the President is gone, even if they are very old or sick, in order for the next president to have a chance at nominating a more liberal or conservative judge

46. VIII. Selection of Federal Judges A. Judicial Appointments • In the last 20 years, the average time taken to fill a federal judgeship was 464 days- compared to a week or two in Europe • This has created a situation that has severely burdened the caseload of the other district courts • Average federal case is now taking almost three years to complete

47. VIII. Selection of Federal Judges A. Judicial Appointments • Supreme Court nominations have always been controversial to one degree or another • The difference between the 19th century and the 20th is that in the former, nominations were always done in secret, often times without judiciary hearings • Result: senators could oppose a president’s choice with little fear of the consequences for their reelection

48. VIII. Selection of Federal Judges A. Judicial Appointments • Presidents generally defer selection of district court judges to senators of their own party who represent the state in which a vacancy occurs on the federal bench - a practice known as senatorial courtesy • By tradition, the Senate Judiciary Committee will not confirm a presidential nominee until the senator of that nominee’s home state has said it’s Okay

49. VIII. Selection of Federal Judges A. Judicial Appointments • Steps in nominating process: • Investigation: Both the FBI and the ABA will analyze a president’s short list for the federal courts • The FBI will do background checks to make sure the nominee has not been in legal trouble that could embarrass the president • Since the Truman administration, the ABA has been asked to rate the nominees (Well Qualified-Qualified-Not Qualified)

50. VIII. Selection of Federal Judges • Judicial Appointments • ABA Involvement discontinued during Bush II Administration • After these preliminary investigations, the Senate Judiciary Committee will also do its own investigation and hearings