The Federal CourtsThe Federal Courts

Chapter 16Chapter 16

The Adversarial SystemThe Adversarial System

The Courts provide an arena for two parties The Courts provide an arena for two parties to bring their conflict to an impartial arbiter.to bring their conflict to an impartial arbiter. Criminal Law Cases- the government charges an Criminal Law Cases- the government charges an

individual with violating specific lawsindividual with violating specific laws Involve grand juries and trial juriesInvolve grand juries and trial juries

Civil Law Cases- a dispute between two parties Civil Law Cases- a dispute between two parties where one claims to have been “wronged” by where one claims to have been “wronged” by the otherthe other

Civil law cases often involve a “tort.”Civil law cases often involve a “tort.” Civil law cases do not decide guilt or innocence, but Civil law cases do not decide guilt or innocence, but

whether or not monetary compensation is justified.whether or not monetary compensation is justified.

Participants in the Judicial SystemParticipants in the Judicial System

Litigants- the two parties involvedLitigants- the two parties involved Plaintiff- person who brings the suitPlaintiff- person who brings the suit

Plaintiffs must have “standing to sue.” Plaintiffs must have “standing to sue.” Defendant- person who is being suedDefendant- person who is being sued

Judges- judicial power is “passive.” Judges- judicial power is “passive.” Judges cannot actively seek out cases; Judges cannot actively seek out cases; they must wait for cases to be brought they must wait for cases to be brought to themto them Disputes must be “justiciable,” meaning Disputes must be “justiciable,” meaning

they must be able to be decided by legal they must be able to be decided by legal methods or knowledgemethods or knowledge

Participants, continued…Participants, continued… Outside Groups- groups often seek out Outside Groups- groups often seek out

litigants whose cases seem likely to warrant litigants whose cases seem likely to warrant court attention and result in broad statements court attention and result in broad statements about civil liberties or public policy. about civil liberties or public policy. (Examples: ACLU, NAACP)(Examples: ACLU, NAACP) Class Action Lawsuits- a small number of people Class Action Lawsuits- a small number of people

may sue on behalf of those similarly situated. may sue on behalf of those similarly situated. Lawyers- Lawyers-

In many criminal cases, the defendant is too poor In many criminal cases, the defendant is too poor to afford an attorney so they are appointed one by to afford an attorney so they are appointed one by the state- these are referred to as public defenders.the state- these are referred to as public defenders.

Solicitor General- lawyer for the U.S., argues cases Solicitor General- lawyer for the U.S., argues cases before the Supreme Court when the U.S. is a before the Supreme Court when the U.S. is a litigantlitigant

Structure of the Federal JudiciaryStructure of the Federal Judiciary

District Court

Court of Appeals

Supreme Court

91 1

12 3

1 9

Courts Judges

The Structure of the Federal The Structure of the Federal JudiciaryJudiciary

Federal District CourtsFederal District Courts 9191 Judges and JuriesJudges and Juries original jurisdiction in almost all federal original jurisdiction in almost all federal

casescases appellate jurisdiction in death penalty appellate jurisdiction in death penalty

cases from statescases from states Employ the U.S. Attorneys and the U.S. Employ the U.S. Attorneys and the U.S.

MarshallsMarshalls

The Structure of the Federal The Structure of the Federal Judiciary, cont…Judiciary, cont…

The Circuit Courts of AppealThe Circuit Courts of Appeal 1212 Anywhere from 6-27 judges, no juriesAnywhere from 6-27 judges, no juries Decide cases in panels of 3, but may sit Decide cases in panels of 3, but may sit en bancen banc Only appellate jurisdictionOnly appellate jurisdiction

The Supreme CourtThe Supreme Court 11 9 judges, no juries9 judges, no juries

The number of justices on the Supreme Court is set by The number of justices on the Supreme Court is set by Congress.Congress.

original and appellate jurisdictionoriginal and appellate jurisdiction

The Politics of Judicial SelectionThe Politics of Judicial Selection

Presidents can have long lasting effects Presidents can have long lasting effects more so through court appointments than more so through court appointments than almost anything else. almost anything else. The Lower Federal Courts- many entities have The Lower Federal Courts- many entities have

input.input. The President through the Justice DepartmentThe President through the Justice Department The Senate- Senatorial Courtesy and ConfirmationThe Senate- Senatorial Courtesy and Confirmation The American Bar Association- ratings systemThe American Bar Association- ratings system

The Supreme Court- appointments have become The Supreme Court- appointments have become highly political in recent years.highly political in recent years.

Historically, only 29 of 151 nominees have not been Historically, only 29 of 151 nominees have not been confirmed.confirmed.

The Politics of Judicial Selection, The Politics of Judicial Selection, cont…cont…

Recent Controversies:Recent Controversies: Robert Bork 1987- Justice Kennedy finally Robert Bork 1987- Justice Kennedy finally

confirmed.confirmed. Clarence Thomas- 1991- Anita Hill Clarence Thomas- 1991- Anita Hill

hearingshearings Ruth Bader Ginsburg- 1993- Clinton Ruth Bader Ginsburg- 1993- Clinton

wavered until last second nominationwavered until last second nomination Harriet Miers- 2005- withdrew her Harriet Miers- 2005- withdrew her

nomination after a firestorm of opposition nomination after a firestorm of opposition from the right.from the right.

And, here they are…And, here they are…

The Current CourtThe Current Court

Current Supreme Court JusticesCurrent Supreme Court Justices

Chief Justice Chief Justice John RobertsJohn Roberts

Appointed: Appointed: Bush, 2005Bush, 2005

Age: 57Age: 57 ConservativeConservative

Current Supreme Court JusticesCurrent Supreme Court Justices

Antonin ScaliaAntonin Scalia Appointed: Appointed:

Reagan, 1986Reagan, 1986 Age: 76Age: 76 Strong Strong

ConservativeConservative

Current Supreme Court JusticesCurrent Supreme Court Justices

Anthony Anthony KennedyKennedy

Appointed: Appointed: Reagan, 1988Reagan, 1988

Age: 75Age: 75 Swing Vote Swing Vote

(Usually (Usually Conservative)Conservative)

Current Supreme Court JusticesCurrent Supreme Court Justices

Clarence Clarence ThomasThomas

Appointed: Appointed: Bush, 1991Bush, 1991

Age: 63Age: 63 Strong Strong

ConservativeConservative

Current Supreme Court JusticesCurrent Supreme Court Justices

Ruth Bader Ruth Bader GinsburgGinsburg

Appointed: Appointed: Clinton, 1993Clinton, 1993

Age: 79Age: 79 Strong LiberalStrong Liberal

Current Supreme Court JusticesCurrent Supreme Court Justices

Stephen Stephen BreyerBreyer

Appointed: Appointed: Clinton, 1994Clinton, 1994

Age: 73Age: 73 LiberalLiberal

Current Supreme Court JusticesCurrent Supreme Court Justices

Samuel AlitoSamuel Alito Appointed: Appointed:

Bush, 2006Bush, 2006 Age: 62Age: 62 ConservativeConservative

Current Supreme Court JusticesCurrent Supreme Court Justices

Sonia Sonia SotomayorSotomayor

Appointed: Appointed: Obama, 2009Obama, 2009

Age: 57Age: 57 Strong Strong

LiberalLiberal

Current Supreme Court JusticesCurrent Supreme Court Justices

Elena KaganElena Kagan Appointed: Appointed:

Obama, 2010Obama, 2010 Age: 52Age: 52 LiberalLiberal

A Historical Review of the CourtsA Historical Review of the Courts

1789-early 1900s- the growth of 1789-early 1900s- the growth of national supremacy and judicial review.national supremacy and judicial review. Two notable instances where the court’s Two notable instances where the court’s

prestige was weakenedprestige was weakened Cherokee Nation v. Georgia (1832) and Dred Cherokee Nation v. Georgia (1832) and Dred

Scot v. Sanford (1857)Scot v. Sanford (1857) The Nine Old Men- conservative judges The Nine Old Men- conservative judges

during the New Deal struck down during the New Deal struck down program after program as program after program as unconstitutionalunconstitutional FDR and the Court Packing schemeFDR and the Court Packing scheme

Historical Review, cont…Historical Review, cont… The Warren Court (1953-1969)- the The Warren Court (1953-1969)- the

highwater mark of liberal activismhighwater mark of liberal activism The Burger Court (1969-1986)- more The Burger Court (1969-1986)- more

conservative leaning, with some notable conservative leaning, with some notable exceptions- Roe v. Wade, NY Times v U.S.exceptions- Roe v. Wade, NY Times v U.S.

The Rehnquist Court (1986-2005)- often The Rehnquist Court (1986-2005)- often known as the “states rights” court, except known as the “states rights” court, except for one glaring exception- Bush v. Gorefor one glaring exception- Bush v. Gore

The Roberts Court (2005-)- most noted so The Roberts Court (2005-)- most noted so far for taking extremely technical cases far for taking extremely technical cases that rule on narrow points of law, but we’ll that rule on narrow points of law, but we’ll see…see…

The Nature of Judicial Power and The Nature of Judicial Power and Philosophy of JudgesPhilosophy of Judges

Original Intent- a.k.a. Original Intent- a.k.a. strict constructionism- strict constructionism- believe founders believe founders intent should be intent should be paramount in paramount in interpreting the interpreting the ConstitutionConstitution

Loose Loose Constructionism- Constructionism- believe Constitution believe Constitution should be interpreted should be interpreted to fit contemporary to fit contemporary needs and situationsneeds and situations

Judicial Activism- Judicial Activism- Judges make bold Judges make bold policy decisions, chart policy decisions, chart new Constitutional new Constitutional ground, overturn ground, overturn precedents and do not precedents and do not hesitate to overturn hesitate to overturn the policymaking the policymaking decisions of Congress decisions of Congress and the Presidentand the President

Judicial Restraint- Judicial Restraint- judges adhere to judges adhere to precedent and precedent and minimally overturn the minimally overturn the policymaking policymaking decisions of Congress decisions of Congress and the Presidentand the President

What is the assumption?What is the assumption? That “conservative” judges always believe That “conservative” judges always believe

in strict constructionism and judicial in strict constructionism and judicial restraint, and that “liberal” judges always restraint, and that “liberal” judges always believe in loose constructionism and judicial believe in loose constructionism and judicial activism.activism.

Although this is partially true, the reality is Although this is partially true, the reality is far more complicated. These terms are far more complicated. These terms are mainly used today by both sides to rile up mainly used today by both sides to rile up discontent over judicial decisions and discontent over judicial decisions and judicial nominees.judicial nominees. Example: New Deal- conservative judges were Example: New Deal- conservative judges were

“activist” by overturning policy made by “activist” by overturning policy made by Congress based on a “strict” interpretation of the Congress based on a “strict” interpretation of the commerce clause.commerce clause.

SummarySummary

The unelected and powerful federal courts The unelected and powerful federal courts raise important questions about democracy raise important questions about democracy and the scope of judicial power. Yet court and the scope of judicial power. Yet court decisions are usually consistent with public decisions are usually consistent with public opinion and justices often use their power to opinion and justices often use their power to protect those rendered powerless by protect those rendered powerless by majoritarian democracy. The role of the majoritarian democracy. The role of the courts as active policymakers or restrained courts as active policymakers or restrained adherents to original intent will remain a adherents to original intent will remain a matter of continued debate as the interest matter of continued debate as the interest groups continues to use the courts to push groups continues to use the courts to push their own policy agendas. their own policy agendas.

How cases reach the Supreme How cases reach the Supreme CourtCourt

Step 1:Step 1: Litigant files for a Litigant files for a writ of certiorari-writ of certiorari- a formal a formal

order used to bring a case to courtorder used to bring a case to court The decision to “grant cert” is based on the The decision to “grant cert” is based on the

rule of four-rule of four- if four justices want to review the if four justices want to review the case, then it will be granted cert.case, then it will be granted cert.

The court gets an average of 1500-2000 cert The court gets an average of 1500-2000 cert petitions per year, and grants less than 10%petitions per year, and grants less than 10%

Potentially, the Supreme Court will deny cert, Potentially, the Supreme Court will deny cert, but but remandremand the case back to the lower court. the case back to the lower court.

Step 2:Step 2:

Once cert has been granted, the case is Once cert has been granted, the case is put on the put on the docketdocket- the formal schedule of - the formal schedule of cases to be heard during that term (Oct-cases to be heard during that term (Oct-June)June)

At this time, both parties begin submitting At this time, both parties begin submitting briefs briefs - written summaries of the legal - written summaries of the legal arguments for both sides.arguments for both sides.

Interested outside parties can also submit Interested outside parties can also submit briefs- these are called briefs- these are called amicus curiaeamicus curiae (or, (or, friend of the court) briefs.friend of the court) briefs.

Step 3:Step 3:

Law clerks review the briefs and present Law clerks review the briefs and present summaries of the cases to the justices.summaries of the cases to the justices. The law clerk role is very important- not only The law clerk role is very important- not only

do they review all cert petitions, but they do they review all cert petitions, but they also prepare information for the justices on also prepare information for the justices on the cases they will actually “hear.”the cases they will actually “hear.”

Each justice has 3 clerks, except for the Each justice has 3 clerks, except for the chief, who gets 4.chief, who gets 4.

Once the clerks prepare summaries, the Once the clerks prepare summaries, the justices review all the relevant information.justices review all the relevant information.

Step 4:Step 4:

Oral Arguments:Oral Arguments: This is the only part of the process open This is the only part of the process open

to the public/media. NO CAMERASto the public/media. NO CAMERAS Each lawyer gets 30 minutes to present Each lawyer gets 30 minutes to present

their case to the justices, at which time their case to the justices, at which time the justices can interrupt with questions, the justices can interrupt with questions, etc…etc…

This is where the media pays attention This is where the media pays attention to try to get a feel for how each justice to try to get a feel for how each justice is leaning.is leaning.

Step 5:Step 5:

Conference- one or Conference- one or two days per week, two days per week, the justices meet in the justices meet in secret to discuss the secret to discuss the cases they’ve recently cases they’ve recently heard.heard.

At this time, they take At this time, they take a preliminary vote and a preliminary vote and decide who will write decide who will write the opinions in the the opinions in the case. case.

Step 6:Step 6:

The Opinions- what did they decide?The Opinions- what did they decide? The Majority Opinion- this becomes the The Majority Opinion- this becomes the

precedent-precedent- the settled law by which all future the settled law by which all future cases are decided.cases are decided.

Who writes it?Who writes it? If the chief is in the majority, he decides. If the chief If the chief is in the majority, he decides. If the chief

is in the minority, the ranking justice in the majority is in the minority, the ranking justice in the majority decides.decides.

Why is this significant?Why is this significant? The opinion sets the “tone” and contains important The opinion sets the “tone” and contains important

language. (i.e. Sandra Day O’Connor and undue language. (i.e. Sandra Day O’Connor and undue burdenburden

The Dissenting Opinion- this is The Dissenting Opinion- this is important as it can potentially important as it can potentially become the reason to overturn become the reason to overturn precedent.precedent. Plessey v. Ferguson had one dissenting Plessey v. Ferguson had one dissenting

opinion.opinion. The Concurring Opinion- the opinion The Concurring Opinion- the opinion

of those agreeing with majority, but of those agreeing with majority, but for different legal reasons. for different legal reasons.