The Judicial System (cont d)

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1 The Judicial System (cont d) Alexander Hamilton in Federalist #78: Executive: Holds the sword of the community as commander-in-chief. Congress appropriates money ( commands the purse ) and decides the laws that govern. Judiciary was the least dangerous to political rights. No influence over either the sword or the purse. Hamilton did believe the court should have the power to determine a laws constitutionality but to confine the power of the legislature not expand the power of the courts

2 The DUAL COURT SYSTEM or Dual Sovereignty FEDERAL LAW Exclusive (Original) Jurisdiction: State Jurisdiction: STATE LAW 1 - Federal civil disputes heard in specific federal courts or federal district courts - Federal criminal cases are usually heard in federal district courts Two or more states (citizen or state) Diversity Case Counterfeiting The U.S. v a State Kidnapping Interstate trade Border Issues Civil Rights Patents/ Copyrights MARIJUANA - MOST civil disputes between citizens are settled in state civil courts - MOST criminal disputes settled in state criminal courts - Appeals go to State Supreme Court (court of last resort) Jurisdiction: right to hear a case States have their own laws so need own courts Concurrent Resolution: Federal and State law overlap can be heard at either level or BOTH. Civil Rights violation. $75,000 plus. Banks (Federally insured)

3 The Federal Court System 2 LAYER District Courts Court of Appeals (Circuit Courts) Supreme Court TYPE OF JURISDICTION Original Jurisdiction Appellate Jurisdiction Original (state v state) or Appellate (90%) DESCRIPTION 94 District Courts Lowest federal court / only federal trials 12 Courts No original jurisdiction Only if law applied correctly not a re-trial Only 1 has final say Only Federal court required by the Constitution (Article III) JUDICIARY ACT OF 1789: ESTABLISHED THE 3-TIERED STRUCTURE OF THE FEDERAL COURT SYSTEM

4 Justification Judgeship Term Constitutional Court Federal Court authorized by Article III Appointed by President and confirmed by Congress Life Good Behavior. Can be impeached WHY? Legislative Courts Created by Congress for a special purpose (TAX, MILITARY APPEALS) Appointed by President and confirmed by Congress Staffed for a fixed number of years, can be removed, and have salary reduced. Sovereign Immunity: Federal government can do no wrong and is immune from civil or criminal prosecution unless the government waives the right!!!! 3

5 On the federal level, the congressional authority to create courts is found in two parts of the U.S. Constitution. Under ArticleIII, Section 1, "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 I, Section 8, Clause 9, confers on Congress the power to "constitute Tribunals inferior to the supreme Court LEGISLATIVE COURTS The Supreme Court has Appellate Jurisdiction over Legislative court decisions 4

6 HEARING AND DECIDING A SUPREME COURT CASE 5 Steps in the Process Description 1. To take the case or Not? About 2% Conflicts btwn lower courts Civil Rights Public Interest ½ are in forma pauperis 2. Oral Arguments - Each side pays own way - Fee Shifting: allows plaintiffs to recover costs from defendent Obergefell v Hoges Petitioner files a petition for certiorari : a brief arguing why the lower court erred not a re-trial! RULE OF FOUR: 4 justices must agree to hear case (out of 9) Court then issues a writ of certiorari to the lower court informing it and to request the full trial transcripts. Each side gets 30 minutes to make their case includes questioning from the Justices! AMICUS CURIAE sometimes allowed to present oral arguments

7 HEARING AND DECIDING A SUPREME COURT CASE Steps in the Process 3. The Conference and Vote 4. Writing Opinions (if tie vote last ruling stays in place) Description Justices meet once a week (on Friday) when in session to discuss the case. The Chief Justice speaks first followed by the others in order of seniority They then vote in reverse order of seniority Chief justice has considerable influence referee Per Curiam: Brief, unsigned court opinion Opinion of the Court: Majority opinion written by Chief Justice if in the majority Concurring Opinion: a Justice will write if agree but for another reason Dissenting Opinion: a Justice writes to explain why they disagree with the majority opinion

8 The Judiciary and the political Spectrum Political Position Tend to Support Judicial Liberals Broad interpretation of Elastic Clause (necessary and proper) Pro-choice decisions (Roe v Wade) Strict interpretation of separation of Church and state Pro affirmative action and broad interpretation of civil rights legislation Judicial Conservatives Strict limits on Elastic and Commerce clauses Tend to let the states decide when possible (10 th Amendment) Pro-Life decisions (overturn Roe v Wade) Uphold community standards for free speech and obscenity less inclined to restrict Affirmative Action is a form of reverse discrimination

9 Judicial Activism When judges or courts make rulings that support a particular political agenda or have a direct impact on policy (re-write policy) - Court ruled Obamacare a tax but passed as a penalty in Congressional legislation. Unconstitutional if a penalty.constitutional if a tax. - Roe s use of right to privacy Judicial Conservatives (Strict Constructionists) (Judicial Restraint) Belief that policy decisions s/b left to the other two branches court s rule is to interpret not create law. Strict Constructionist: Limited judicial interpretation what does the constitution actually say Stare decisis: Let the decision stand. Judicial rulings based on earlier decisions for similar cases. Not absolute

10 Some Vocab. Legal Standing (Standing): - is the term for the ability of a party to demonstrate to the court sufficient connection to and harm from the law or action challenged to support that party's participation in the case - If the party cannot show harm, the party does not have standing and is not the right party to bring the case to court - Roe v Wade: Must be pregnant to challenge abortion law Class-Action suit: - A case brought forward on the behalf of a group of individuals - Tobacco case / Asbestos

11 Chief Justice Period Years Description John Marshall years Established many powers of the court and expanded the powers of Congress - Marbury v Madison (Judicial Review) - McCulloch v Maryland (necessary and proper / supremacy clause Roger Taney years At odds with Lincoln: - Dred Scott decision - Civil war habeas corpus: only Congress, not the President, could suspend Earl Warren (Civil Rights era) * Power back to t he states years Activist court expanded rights of accused and racial and religious minorities - Brown v Board - Miranda - Gideon v Wainwright - Engel v Vitale - Griswold

12 Chief Justice Period Years Description William Rehnquist years Major Conservative influence - Hazelwood v. Kuhlmeier - Texas v. Johnson - Shaw v. Reno

13 Legislative The Government s Influence on the Judiciary Senate House and Senate The Senate confirms Presidential appointments to the Federal bench Senatorial Courtesy: Senator from the state in which the Federal District judge is to serve is given the power of recommending the judge. Senate will not confirm if opposes. House impeaches Senate convicts House and Senate House and Senate House and Senate Pay judges salaries Sets the jurisdiction of the LEGISLATIVE courts Create new seats as needed Number of seats has doubled over the past 50 years

14 Executive The Government s Influence on the Judiciary President Department of Justice Department of Justice The President appoint judges with consent of Senate - 60 Votes at first - NUCLEAR OPTION: Simple majority Attorney General prosecute Federal crimes and defends the U.S. in court Senate convicts Solicitor General: - Appointed by President (confirmed by Senate) - Determines the cases to be appealed to the Supreme Court - Represents the U.S. at the Supreme Court - File amicus curie briefs on behalf of the U.S.

15 INFLUENCE Amicus Curie Briefs Harvard and Yale Law Reviews Clerks Public Opinion DESCRIPTION Interest Groups and interested parties (the government) are allowed to write briefs explaining their viewpoint and reasoning on a particular case Must submit a request to do so Sometimes allowed to present an oral argument before the court Influential publications Most justices went to Ivy-League schools Assist justices by handling/reviewing briefs Work closely with justices and can greatly influence their decisions Think of as a sub-committee It shouldn t but judges are human and have personal opinions

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