American Court System. Lisa Soronen State and Local Legal Center

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1 American Court System Lisa Soronen State and Local Legal Center

2 Presentation Overview American legal system overview Supreme Court Amicus briefs Miscellaneous information

3 To Learn More American Legal Systems: A Resource and Reference Guide By: Toni M. Fine Chapter 1 is available free online!

4 Federal and State Court System Dual court system in the United States Federal courts State courts Pull out your pocket constitution Article III of the Constitution describes the power of the federal courts

5 What do Federal Courts Decide? Federal constitutional issues Federal statutory issues Diversity (parties from different states; $75K+) US party Special topics: (admiralty, antitrust, maritime) Removal

6 What do State Courts Decide? Any other case (including those where federal courts have jurisdiction) with a few exceptions

7 Court Structure Federal and state courts Lower court trial/fact finding court Intermediate court appeals from the lower court High court appeals from the intermediate court

8 Bring Case to the Lowest Court First Generally the case Some exceptions In seven instances challenges to the Clean Water Act must first be brought in a U.S. Court of Appeals (intermediate court) Constitutional challenges to redistricting must be bought to a three-judge panel of federal district court judges

9 Federal Court Structure Lower court district court (about 2,700 judges) 94 in the US 2 in my home state of Wisconsin Intermediate court Court of Appeals (about 700 judges) 13 in the US WI, IL, and IN are in the 7 th Circuit High court Supreme Court (9 Justices)

10 Map of the Federal Courts of Appeals

11 D.C. Circuit While it has the smallest geographic jurisdiction of any of the United States courts of appeals, the D.C. Circuit, with eleven active judgeships, is arguably the most important inferior appellate court. The court is given the responsibility of directly reviewing the decisions and rulemaking of many federal independent agencies of the United States government based in the national capital, often without prior hearing by a district court. Aside from the agencies whose statutes explicitly direct review by the D.C. Circuit, the court typically hears cases from other agencies under the more general jurisdiction granted to the Courts of Appeals under the Administrative Procedure Act.

12 Specialize Federal Court Federal Circuit--hears cases based on subject matter most notably patent cases Bankruptcy courts U.S. Court of Appeals for Veterans Claims Court of International Trade U.S. Court of Appeals for the Armed Forces Military Court of Inquiry

13 State Court Structure Wisconsin Lower court circuit courts organized by county Intermediate court Wisconsin Court of Appeals 4 courts organized by district High court Wisconsin Supreme Court Specialized courts at the trial court level Family Probate Juvenile

14 What do Courts Decide? Decide live cases or controversies Issue opinions

15 What do Courts Not Decide? Standing Exhaustion Finality Ripeness Mootness Political questions

16 Have You Ever Wanted to Read an Opinion? Riley v. California (2014) Justice Roberts opinion Issue: whether police need a warrant to search a cell phone of someone arrested

17 How Do Courts Decide Cases? Rely on the law Much of the law is precedent Precedent previous opinions Common law system in the United States Relies on past opinions (precedent) Judge-made law English roots

18 Types of Case Law Pure case law torts, property Can you sue a police officer for emotional distress if he or she shoots your dog? Who gets an engagement ring if the wedding is called off? Case law based on statutory provisions Can a person sue for discrimination on the basis of sexual orientation under Title VII of the Civil Rights Act? Case law based on constitutional provisions Is there a constitutional liberty interest in same-sex marriage?

19 What is the Law? In order of importance Constitution Statutes Agency regulations Executive orders Case law/common law

20 Where Does it Come From? Constitution Founding fathers Statutes legislatures Rules and regulations administrative agencies Executive orders President/Governor Case law/common law judges

21 How Does the Law Develop? Through an expanding body of case law (precedent) Precedent has rules Rules of law established by the same or higher level courts in the same jurisdiction must be followed Courts don t change their mind on legal principles All lower courts must follow US Supreme Court rulings Called stare decisis (let it stand)

22 Why Stare Decisis? Judicial economy Fairness to parties Predictability Check on arbitrary behavior

23 When Does the Supreme Court Abandon Precedent? Need some special reason over and above the belief that a prior case was wrongly decided: the workability of the rule the extent to which the public has relied on the rule relevant changes in legal doctrine changes in facts or perceptions of facts Roberts Court is famous for not abandoning precedent (at least not explicitly)

24 Abandoning Precedent Last time I can remember the Court explicitly abandoning precedent Citizens United v. FEC (2008) Predicted to do it twice this term Janus v. AFSCME are fair share laws constitutional? South Dakota v. Wayfair--may states and local governments require retailers with no instate physical presence to collect sales tax?

25 What if No Precedent is a Perfect Fit? Adopt reasoning of another court in a similar case by analogy Jurisdiction Court hierarchy Factual similarity Attractiveness of reasoning Date of analogous case Decriminalizing sodomy to dumping DOMA to recognizing a constitutional right to same-sex marriage what s next?

26 Special Rules for Statutes Read statutes for plain meaning What if the statute is ambiguous? Statute as a whole Context Cannons of statutory interpretation punctuation, dictionary definition, may v. shall, specific provisions trump general provisions Legislative history

27 Presidential Power Administrative agency regulations Other agency guidance Executive orders

28 Administrative Agencies Fourth branch of government Issue regulations interpreting statutes and other guidance Advantages of agencies is they have technical expertise Disadvantages of agencies is they may aren t elected and may be politically motivated Regulations must go through a lengthy notice and comment process

29 Administrative Agencies Not easy to get rid of regulations Next administration must go through the same lengthy notice and comment process and be able to defend changes in regulations as not arbitrary and capricious Waters of the United States definitional regulations provide a great example Trump administration started work on this in March of 2017 Step one: issue a final rule putting back in place the pre-2015 WOTUS definitional rule (proposal issued; not final) Step two: finalize a new definition of WOTUS (nothing done here yet)

30 Administrative Agencies Courts generally defer to agency regulations interpreting a statute Chevron v. NRDC (1984) Statute must be unclear Agency interpretation must be reasonable

31 Agency Deference in Trouble? Why? Gives federal agencies rather than court a lot of authority Justice Gorsuch has indicated he isn t a fan of Chevron deference Auer v. Robbins (1997) deference may be in trouble as well (courts defer to an agency s interpretation of its regulations)

32 Executive Orders Used to direct the work of administrative agencies and implement authority granted to the President by a federal statute or the U.S. Constitution Controversial No provision of the Constitution explicitly authorizes them Every President (except one) since George Washington has issued them President Obama and President Trump have both tried to accomplish a lot through executive orders and regulations

33 Executive Orders Can be easily reversed by the next President Can t be used to overturn laws and can be overturned by Congress Youngstown Sheet & Tube Co. v. Sawyer: Supreme Court struck down President Truman s executive order directing the Secretary of Commerce to seize and control all the United States steel mills

34 President Obama Executive Agenda Clean Power Plan (regulations) Waters of the United States (regulations) Deferred Action for Parents of Americans and Deferred Action for Childhood Arrivals (executive orders) Transgender student guidance (letter) Fair Labor Standard Act overtime rule (regulations)

35 President Trump Executive Agenda Travel ban (executive order) Sanctuary cities (executive order) WOTUS definition (regulations) Pulled or in the process of pulling many Obama executive orders and regulations

36 Supreme Court

37 Why is SCOTUS Important? Last word on the interpretation of the U.S. Constitution can strike down any law as unconstitutional or rule a law or policy is constitutional Unless the Court reverses itself Or the Constitution is amended All lower courts in all 50 states must follow its rulings

38 When is the Supreme Court not so Supreme? If it interprets a statute in a way Congress does not like Congress may simply rewrite the statute Americans with Disabilities Act Amendments Act Lily Ledbetter Fair Pay Act Can t decide whether or when a particular issue will be brought to it to decide

39 Why Is the Supreme Court So Powerful? Only 9 people Not elected Appointed for life Somewhat homogenous, not average, never young Decide many of the most important issues of the day Final say on constitutional matters (practically speaking) Pick and choose what they decide and when they decide it

40 What is the Role of the Supreme Court? Article III of the Constitution says very little about the Supreme Court other than it exists and that it has jurisdiction in particular cases

41 Over Which Cases Does SCOTUS have Jurisdiction? Original jurisdiction Brought by one state against another, or between states and the federal government All Cases affecting Ambassadors, other public Ministers and Consuls State courts that have decided a federal question Decisions from the federal appellate or district courts

42 Supreme Court has Defined its Own Role Marbury v. Madison Confirms judicial review Supreme Court may declare legislation unconstitutional Through the rules it makes

43 Court Defines it Job to Resolve circuit splits Decide important questions of federal law Rarely accepts cases to correct factual errors or errors in how the law is applied Court can take any case it wants as long as the losing party files an petition and the Court has jurisdiction to hear the case

44 How to Get SCOTUS to Take Your Case File a petition to the Court if you lose below Court generally takes cases to reverse lower courts If you lose below and the Court takes your case you have about an 80% chance of winning!

45 Can t Go to SCOTUS Right Away Generally you must file your case first at the lowest level possible and wait for it to work its way through the lower court On average it takes about 10 years from the incident happening to the case being reviewed by the Supreme Court Trump administration tried to appeal a federal district s court (rather than a federal appeals court) ruling on DACA SCOTUS rules say that certiorari before judgment will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court

46 Supreme Court Review is Discretionary Takes 4 Justices to agree to hear a case Accept or deny review for any reason or no reason at all usually because there is not circuit split Famous examples of waiting for circuit split Same-sex marriage cases Famous examples of not waiting for a circuit split ACA exchange case (ACA was declared unconstitutional)

47 Supreme Court Review is Discretionary Receives between 7,000-8,000 petitions a year Decides about 70 cases a year

48 Supreme Court and the States About 2/3 of the docket impacts states in some way Almost all the blockbuster cases each term impact the states directly No limit to potential issues: takings, Fourth Amendment searches, First Amendment free speech, tribal issues, qualified immunity, public employment, etc.

49 What Does the Docket Really Look Like? Lots boring, narrow cases on topics like patents and bankruptcy Yates v. United States: is a fish a tangible object for purposes of a provision of Sarbanes Oxley titled DESTRUCTION OR REMOVAL OF PROPERTY TO PREVENT SEIZURE T-Mobile v. City of Roswell : the SLLC filed an amicus brief in this case where the question was do you have to state the reasons for denying a cell tower application in the denial letter or can you just tell the cell company to read the minutes

50 Green Light or Red Light Why would the Court want to decide an important issue right away? Why would it want to wait? Supreme Court can do a lot by doing nothing at all

51 When is the Supreme Court Going to Do Anything About Guns? They are right now but you just might not realize it Not taking cases where the lower courts have upheld gun restrictions In DC v. Heller the Supreme Court held that people have a Second Amendment right to have a gun in their home for traditional lawful purposes The following information is from Protecting Strong Gun Laws: The Supreme Court Leaves Lower Court Victories Untouched, Giffords Law Center (December 5, 2017)

52 Gun, Guns, and More Guns In the last nine years, the U.S. Supreme Court has rejected at least 82 cases that sought to expand D.C. v. Heller Since 2008, there have been over 1,230 Second Amendment cases challenging gun laws nationwide, with an overwhelming majority 93% of the lower court decisions upholding those laws Side note: DC Circuit struck down DC s good reason in order to carry a concealed handgun law; DC didn t appeal to the Supreme Court because it was afraid it would lose

53 Supreme Court has Refused to Hear Challenge restrictions on concealed and open carrying of firearms in public Challenge the constitutionality of laws prohibiting felons, domestic abusers, and/or certain misdemeanants from possessing firearms Challenge restrictions on the possession of machine guns and other types of military-style weapons Challenge firearm registration requirements and related fees Challenge restrictions of firearms in national parks and other publicly owned places

54 Why Won t They Take A Case Only my opinion here It takes four votes to get a petition granted Roberts and Kennedy (like Justices Alito, Thomas, and Gorsuch) believe the (as a legal matter) the Second Amendment should be read broadly to protect near absolute gun ownership But Roberts and Kennedy wonder whether ruling this way is really in the best interests of our country (for all the obvious reasons)

55 SCOTUS Justices Conservative Chief Justice Roberts Kennedy* Thomas Alito Liberal Ginsburg Breyer Sotomayor Kagan Gorsuch

56 How Do the Justices Vote? Perception: 5-4 conservative Court with Justice Kennedy in the middle Particularly more recently, Justice Kennedy has joined the liberals in cases involving social issues Reality: this is true only for the BIG cases

57 Lots of Agreement on the Court Looking at data from the last 10 years About 45% of cases are unanimous About 20% are 5-4 About 60% of the 5-4 cases have had conservative outcomes

58 About the Justices Generally All attended Harvard or Yale Law School All are Catholic (maybe one Episcopalian) or Jewish Most worked for the federal government at some point Most were lower court judges Ages range from (Gorsuch-Ginsburg)

59 Why Nine? Constitution is silent on the number The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices have occurred A switch in the saves nine

60 Can I Be a Judge or Better Yet a Justice? Supreme Court Justices, federal court of appeals judges, federal district court judge There are no qualifications! President must nominate you; Senate must confirm you by a majority vote All of these judges are appointed for LIFE! Practices vary significantly for state judges

61 Justice Gorsuch is a Coup President Trump s (second?) biggest accomplishment to date: Justice Gorsuch Impeccable credentials, young, already proving to be a reliable conservative Not a reflection of any of Trumps idiosyncrasies

62 Future Supreme Court Nominations If Trump gets a second (third or fourth) nominee through, the Court could really change Average retirement age for Supreme Court Justices is 79 Oldest Justices are liberals and Justice Kennedy Justice Ginsburg (85) Justice Breyer (79) Justice Kennedy (81)

63 Future Supreme Court Nominations Big change with Justice Gorsuch As a practical matter it now only takes 51 votes (rather than 60) to get a Justice on the Supreme Court 51 Democrats in the Senate in 2018 will limit Trump s choices

64 Supreme Court schedule Term runs first Monday in October until about June 30 Court hears oral argument in cases October-April Issues decisions December-June When do you usually here about the Supreme Court? Opinions in most of the *big* cases come down in June

65 SCOTUSblog Best resource on the Supreme Court Summaries of every case before and after oral argument and after the cases are decided Written for non-lawyer Symposiums on important cases Live blog on opinion days

66 Amicus Briefs

67 How Do Judges Decide Cases? Beyond the trial court level they rely on legal briefs written by the parties and (sometimes) amicus briefs Merits briefs are written by the two parties to the case Focus heavily on why the law is in their favor Oral argument Independent/clerk research

68 Judicial Perspective Conservative/liberal Judicial philosophy Judicial activism v. judicial restraint Loose constructionist v. strict constructionist Living document v. original intent Legal realism

69 What Are Amicus Briefs? Submitted by non-parties that typically represent the interests of a group whose members will be affected by the case Explain how ruling one way or the other will affect all group members Make policy arguments rather than legal arguments

70 Are Amicus Briefs Important? Amicus briefs play a special role in cases The attorney for the party we support will be trying to win for his or her client; an amicus brief discusses the impact of a case more broadly Amicus briefs help the Court understand the practical implications of their decision (which the Justices do care about) The other side will likely have amici support too

71 The State and Local Legal Center Is the voice of state and local government before the Supreme Court Files amicus briefs in the U.S. Supreme Court in cases affecting state and local government 13 this term! Receives funding from NCSL, the other Big Seven organizations representing elected and appointed state and local government officials, and IMLA and GFOA

72 Court Notices SLLC Briefs Court typically cites to an SLLC brief once a term Guess which Justice is most likely to cite to an SLLC brief

73 Gorsuch Cited to an SLLC Amicus Brief Generously The Court s approach will require state courts to entertain state law claims that state law deems untimely not only by weeks or months but by many years, as 24 States, the National Conference of State Legislatures, and the Council of State Governments warn us. At the time of section 1367(d) s enactment, it appears at least 31 of 36 States that provided tolling of some kind guaranteed a grace period. See also Brief for National Conference of State Legislatures et al. as Amici Curiae 1a 25a (discussing current state statutes). To be sure, the Court suggests that its approach will help the States. See ante, at 19. But a great many States have suggested the opposite, complaining to us that the Court s approach will regularly relegate to the dustbin their own state limitations policy choices. See Brief for State of Wisconsin et al. as Amici Curiae 22 27; Brief for National Conference of State Legislatures et al. as Amici Curiae Given all this, it s no wonder that 24 States, the National Conference of State Legislatures, and the Council of State Governments complain that the result the Court reaches today flies in the face of federalism.

74 Other Interesting Information about the US Judicial System

75 How Many Cases Settle? Almost all of them! Why? Expense Time commitment Fear of losing Prevent further damaging a continuing relationship

76 What is the Role of An Attorney General? Chief legal officer of a state Bring cases in areas such as child enforcement, consumer protections, and antitrust Enforce federal and state environmental laws Represent the state and state agencies before the state and federal courts Handle criminal appeals and serious statewide criminal prosecutions Institute civil suits on behalf of the state

77 Where Can You Find the Law? The law Lexis, Westlaw State law library About the law summaries of the law Treatises Restatements American Law Reports Law review articles

78 Terminology En banc Summary judgment Preliminary injunction Qualified immunity

79 Questions? Thanks for attending and keep in touch!

THE JUDICIAL BRANCH: THE FEDERAL COURTS

THE JUDICIAL BRANCH: THE FEDERAL COURTS DUAL COURT SYSTEM There are really two court systems in the United States National judiciary that extends over all 50 States Court systems found in each State (most