Chapter 10: The Judiciary

Chapter 10: The Judiciary

Constitution and Creation of the Federal Judiciary Read Article III and answer: Discuss justices/judges: terms, appointments, remuneration What powers and jurisdiction does the judiciary have? What was the structure of the judiciary as set up by the Constitution? What limitations does the Constitution create in its handling of the crime of treason?

Types of Cases Constitution gives judiciary the power to decide Cases in law (1) and equity (2) distinction no longer made 1. cases with punishment (fines, imprisonment, execution) 2. cases that seek action to redress the issue (i.e. desegregate schools)

The Judiciary takes shape Federalist 78 Hamilton Least dangerous branch: possesses neither the purse, nor the sword Judiciary has power to interpret Constitution and laws to be sure they conform to the Constitution (judicial review) Anti-Federalists feared life terms and ability to interpret the supreme law of the land gave it too much power Judiciary Act of 1789 Set number of Supreme Court Justices (six then; today it is nine) Created lower courts district courts, and circuit courts (for appeals) Supreme Court Justices rode circuit! Chisholm v. Georgia (1793) Georgia was sued by a citizen residing in another state; perceived by states righters as an attack Amendment 11 prevented lawsuits against a state by citizens of another state or of a foreign country

The Marshall Court Marbury v Madison (1803) judicial review of federal laws/acts Martin vs. Hunter s s Lessee (1816) Judicial review of state law McCulloch v. Maryland (1819) established supremacy of federal government and Congress over states; broad interpretation of elastic clause Discontinued practice of seriatim justices giving individual opinions in order

Examining Marbury v Madison (1803) Using the handouts from the Bill of Rights Institute: Read the documents and answer the questions Write a position statement in which you take a stand on whether the Court should have the power to overturn unconstitutional federal laws. Cite information from the documents to support your position Discuss

American Legal System: Dual system federal court system and the states court systems Federal Court System Supreme Court: original (as defined in Constitution) and appellate jurisdiction US Courts of Appeals (formerly circuit courts) 13 courts: appellate jurisdiction review legal procedures and application of the law; does not review the facts US District Courts 94 courts: original jurisdiction (hear facts of a case) Set up by Judiciary Act New York State Court System Court of Appeals State Supreme Court: Appellate Division State Supreme Court Local/Specialized Courts (Town, Village, City, County, Family, Surrogate Courts, etc.)

New York is divided into four judicial districts that are referred to as the Northern, Southern, Eastern, and Western Districts of New York. In the Northern District, court is held in Syracuse, Albany, Auburn, Binghamton, Malone, Utica and Watertown

Article III courts courts of the Judicial branch Article I courts courts set up by Congress for special purposes (i.e. FISA court) under implied powers Article I Judges are appointed by President, confirmed by the Senate Fixed, limited terms

The Supreme Court heard a challenge to this act in December 2007 (Boumediene v. Bush). What are your thoughts on the Summer 2008 decision? In response the Hamdan v. Rumsfeld decision, the Congress passed the Military Commissions Act which authorized trial by military commission for violations of the law of war, and for other purposes. The bill limits captives' access to habeas corpus and has been suggested to be unconstitutional. What does the cartoonist think? Explain.

Laws Legislative: Laws passed by legislatures are called statutes Executive: Rules made by the executive/bureaucracy are called regulations Judicial: Common law or case law is based on precedents set by earlier decisions of judges or practices that may date back to England! The principle of basing decisions on precedents or past decisions is called stare decisis. The US is considered a common law country (as opposed to a civil law country in which laws are all based on codes and judges apply those codes). US judges decide cases based on statutory law, as well as case law/precedents.

Criminal cases Concern crimes committed; are brought by the state in the name of the people. Graded as follows: Felonies ex murder, rape (most severe) Misdemeanors ex robbery (under a certain value), possession of drug paraphernalia (usually lesser crimes punishable by less than a year in jail Infraction/violation/ offense least severe Punishment may be fines, imprisonment, community service, probation, or capital punishment

Civil cases Usually brought by citizens against other citizens (or businesses). Question is not guilt or innocence, but responsibility Burden of proof is lesser: preponderance of evidence as opposed to guilty beyond a reasonable doubt Remedy may be money paid as a punitive measure or for damages Equity measures, such an injunction that orders a party to stop something, or an order to take a certain action

District Courts Cases heard fall into the following categories: Involve federal government as a party Are based on Constitution, international treaty, or federal statute (civil or criminal) Are civil suits involving citizens of different states or amounts over $75,000 Chief law enforcement officer in each District is the US attorney (similar to a district attorney) Decide whether to pursue criminal or civil investigations or charges

Courts of Appeals 13 Courts -- 11 numbered, 1 DC (hears most regulatory cases) and 1 Federal Circuit (patents, etc.) Close to 300 judges at the appeals level Cases decided by 3-judge 3 panels In rare important cases, all judges in a district may sit together to decide a case based on majority vote ( en( banc ) Appellate jurisdiction Decision is final if Supreme Court refuses to hear a case Decisions are based on precedent, and this reliance on precedent is called stare decisis

Selection of Federal Judges Presidents seek to appoint well-qualified, but also those who are politically/ philosophically compatible with the President, yet confirmable by the Senate Senatorial courtesy Presidents defer to selections made by Senators of their own party from the State in question. Appointments were held up to an unprecedented degree by the Republican Senate during the Clinton Administration. Democrats returned the favor under the G.W. Bush administration.

Supreme Court Relatively unknown to the public Hearing not televised; only recently allowed photos, media files. Original and appellate jurisdiction Currently 9 Justices number set in 1869 by the Judiciary Act of 1869 Remember FDR s s court packing plan failed Justices are assisted by 3-43 4 law clerks Top graduates of prestigious law schools Help whittle down the cert pool so the number of cases heard by the Court is manageable Tasks include drafting memos, writing rough drafts of opinions and communicating with other Justices chambers 400 Staff member of the Supreme Court

Appointments to the Supreme Nomination criteria Competence Ideology/policy preferences Rewards Presidential pursuit of political support Religion Race, ethnicity and gender Court

Confirmation process Investigation FBI background check Role of American Bar Association (ABA) Ratings (Well-Qualified, Qualified, Not-Qualified) Under G.W. Bush, no longer given this role; rather, he uses the more conservative Federalist Society Nomination sent of Senate Judiciary Committee Questionnaire and investigation Hearings set up Lobbying by interest groups Senate Committee hearings and Senate vote

Bringing Cases to the Supreme Court In original jurisdiction, a plaintiff brings a case against a defendant (only 3% of Supreme Court cases) In appellate jurisdiction a petitioner brings the appeal and the respondent is the other side Petition for a Writ of Certiorari requests the Supreme Court to hear a case. Almost 10,000 in 2006 term. Writ of Certiorari. A decision by the Supreme Court to hear an appeal from a lower court. Rule of Four if four Justices agree to hear the case, certiorari is granted Briefs submitted by each party outlining their case Amicus curiae briefs submitted by interested parties (often interest groups!) to argue for a certain interpretation and persuade/inform Justices; may be submitted at cert petition and case stages. Can help determine both whether a case is heard, and the decision in the case Docket -- a formal abridged record of the proceedings in a legal action, or a register of such records; a list of legal causes to be heard

When does a case get certiorari? Factors include: Federal government is asking for review Solicitor General 4 th ranking member of Justice Department Handles appeals for the Federal government Appears in 50%+ of cases as an amicus curiae Conflict among the Circuits (Courts of Appeals) Interest Group Participation Lots of amicus briefs will make it more likely that a case gets heard NB: interest groups also sponsor cases and prepare lawyers for Supreme Court arguments Involves a civil rights or civil liberties question Involves ideological or policy preferences of the Justices

Hearing and Deciding a Case Term usually goes from October to July Cases are accepted and scheduled October until late April with alternating two-week week sittings and recesses. Oral arguments are held Mondays through Wednesdays, and follow unique traditions (p. 377-379) 379) Judges meet in closed conference once a week, discuss and make preliminary votes. After a decision is made in conference, opinions are written Majority opinion Dissenting opinion Concurrent opinion shares outcome of majority but for different reasons Plurality opinion no majority Swing voter usually a moderate justice that sometimes sides with the liberals, other times with the conservatives.

Judicial Philosophy Judicial restraint Court should not make policy but defer to other branches Often strict constructionists a limited interpretation that does not allow for leeway from the Constitution s s text Conservative Judicial activism Court should use its power broadly to advance justice, especially in areas of personal liberty and equality Loose constructionists Liberal Originalism -- Constitution (or statute) te) has a fixed and knowable meaning which is established at the time of passage or ratification Neoconservative activism is often associated with this view, since it jumps back earlier than stare decisis (settled law/precedent) to what is viewed as the original intent

Factors influencing judicial decision-making Judicial philosophy Behavioral characteristics (childhood, experiences, values, beliefs, personality) Attitude/Ideology (liberal, conservative, party affiliation) Strategy (vis-à-vis other justices, or other branches of government Public opinion (can be an energizing factor)

Policy Making and Implementation Over-rule rule federal and state laws Over-rule rule itself Hearing political cases Since Baker v Carr (1962) (redistricting)) the floodgates have opened Implementation depends on: the implementing population (lawyers, agencies, police, etc.) Do they understand the decision? Do they follow the Court policy? the consumer population (those affected by the decision) Do they know their rights Do they use the courts to obtain them? Ex. Brown v BOE court mandated desegregation was largely ignored, and follow-up was necessary

What is the cartoonist s view of the case of Kelo v. City of New London? Lanahan # 46 (p. 308-314) What is the majority s view, as expressed by Justice Stevens? What was the dissenting view, as expressed by Justice O Connor? Which view does the cartoon support?