The Judicial Branch
U.S. Chapter 6
The Highly Political Non-Political Courts
Americans generally feel that everyone should be treated equally by the lawAmericans like the idea of fair play and justice through the
court systemAmericans like the idea of separating law from politics
But, as you have learned laws are created through the political process
And, as we will cover in this chapter, politics plays a role in how judges are appointed and how they reach their decisions
Writing the Constitution: States concerned about giving up power to National Court System
Alexander Hamilton argued in Federalist #78: “…the judiciary is beyond comparison the weakest of the three departments of power.”
He argued the judiciary had:
1. Neither the power of the sword (Executive)
2. Nor the purse (Congress)
States (esp. NY) demanded
additional rights (Bill of Rights)
Judiciary and the Constitution – very brief
Article III Section 1: Supreme Court;
Congress can set up lower courts; hold office for “good behavior” (life)
Section 2: Jurisdiction (original and appellate)
Section 3: Treason
Judiciary Act of 1789 – set up District and Appellate courts, a national system of courts
Jurisdiction of Federal CourtsThe jurisdiction of a court is the types of cases it
can hearThe Supreme Court hears national casesOriginal jurisdiction are cases heard directly by the Supreme
Court (basically none today)Appellate jurisdiction are cases heard by a lower court
before being heard by the Supreme Court
In 1925 Congress passed a law to allow the Supreme Court to determine which cases it will hearIn practice, today, the Supreme Court only hears appellate
cases
Size of the Supreme Court
The constitution does not list the number of justices on the Supreme Court
Congress determines the number of justices on the Supreme CourtOriginally 6As country grew, increased to 10Then in controversy with Andrew Johnson decreased to 9Franklin Roosevelt attempted to increase the size of the
court in his court packing plan to intimidate the court to approve his New Deal programs
Organization of Federal Courts
Federal cases are first heard in Federal trial courts called District Courts
Los Angeles county is in the Central District of California
Intermediate federal U.S. Appellate Courts are called Circuits; each circuit includes several states
The state of California is in the9th Circuit
The final appellate court in the federal system is the US Supreme Court
The US Supreme Court hasthe final say about what laws
and the U.S. Constitution means
Organization of the Federal CourtsAbout 10 percent of cases in district court and federal agencies are accepted by higher courts for appeals
The U.S. Courts of Appeals are divided into 13 Judicial Circuits (11 circuits cover states, one
covers D.C. and one is a nationwide intermediate court of appeals)
Congress has also created other specialized courts to covers specific issues (Article I courts)
Circuit Court decisions can be appealed to the Supreme Court, but the Supreme Court hears very few cases, so Circuit Court decisions are often the final decision for that Circuit
Key Historical Development of the Supreme Court: Assertion of Judicial Review (Judiciary co-equal branch with Congress & Executive)
In Marbury v. Madison (1803) the Court asserted the power of judicial review – the Court claimed the power to determine whether legislation passed by Congress or actions by Executive are constitutional
Based on the supremacy clause the Supreme Court clearly has the power to determine if state laws are constitutional (i.e. the Supreme Court has the power of judicial review over state laws in those areas where the national government has power)
Development of Judicial ReviewThe use of Judicial Review to strike down laws
passed by Congress developed slowly The Supreme Court did not strike down a law passed
by Congress between Marbury in 1803 and the Dred Scott decision in 1857
Judicial review was not fully established the way we think of it today until the late 1800’s
The Dred Scott decision said that African-Americans could not be treated as people before the law – inflamed passions leading up to the Civil War
2008-2009
Types of Cases Supreme Court is likely to hear
Out of 7,000 requests Supreme Court usually hears less than 100Likely to hear cases that raise major
constitutional issueIf lower court overturned Supreme Court opinionIf two lower courts or circuits reach a different
outcome on the same issueIf the Solicitor General (lawyer representing the
US government) appeals a case
Political Influences on the Court
Presidents have influence through nomination of all federal judgesBut, presidents can be surprised:
Eisenhower unhappy with WarrenBlackmun (appointed by Nixon) was
conservative to start with, but was most liberal judge when retired
Souter was more liberal than Bush, Sr hopedFDR threat to pack court influenced the
court’s decisions
Political Influences on the Court
Senate can influence the courtSenate approves or rejects nominations, minority
party can filibusterSenators are influential on District Court
appointments to their states (“Senatorial Courtesy”)Senators from President’s party have a lot of influence
over federal court appointments in their stateCongress can impeach federal judges, but very
rare; done for criminal misbehavior, not political
Interest groups lobby President and Senate on appointments of judges, especially Supreme Court
How the Supreme Court Decides CasesThe Supreme Court produces a written decision
for each caseThis always includes a majority opinion, which
states the interpretation of the majority of the court on the issue
Cases can also includeConcurring opinion(s), which agree with the outcome of
the majority opinion, but follow different reasoning to reach that outcome
Dissenting opinion(s), which disagree with the majority opinion, sometimes vigorously
How the Supreme Court Decides CasesSupreme Court opinions (whether majority, concurring
or dissenting) all look pretty much the sameThey usually will cite the Constitution and a number of previous
Supreme Court decisions in a way that supports the opinion writers reasoning
As we know the Constitution is purposefully vague and can support many different positions, so what matters is how the Constitution is interpreted
Also, when the Constitution is clear on an issue, the lower courts will decide the case correctly and issue will not rise to the Supreme Court
Therefore the Supreme Court get’s the tough cases
How the Supreme Court Decides CasesWhen it comes to interpreting the Constitution the
concepts we learned in Chapter 2 are useful (review these concepts from Chapter 2):Loose Construction and Living Constitution (liberal): the
meaning of the constitution should evolve as new needs ariseStrict Construction and Originalists (conservative): the
meaning of the constitution should be as close to what the founders intended as possible
Judicial Activism: Court should stand up to other two branches if they fail to protect rights
Judicial Restraint: Court should tend towards narrow interpretations, rather than challenge the other two branches
How the Supreme Court Decides CasesSupreme Court opinions and precedent
Precedent is the concept that the courts should follow the same reasoning in similar casesTherefore if there is a case similar to the one before the
Supreme Court, then they should make the same decision in this case
But, when precedent is clear on an issue, the lower courts will decide the case correctly and issue will not rise to the Supreme Court
Again, the cases that the Supreme Court hears are the tough cases where precedent is not obvious
How the Supreme Court Decides CasesWould be nice if reading the Constitution or
following precedent was enough to decide Supreme Court cases, but it rarely is
Other factors come into play, particularly a judges political and personal experiences
According to one study of the Supreme Court about 90% of the time party and ideology will explain how a Supreme Court justice will vote
This is why Presidents, Senators and interest groups work hard to influence the individuals who are appointed to the Court
Roberts Court – from 2005 to present
John Roberts is the Chief JusticeThe other 8 are called Associate JusticesCourt has 4 conservatives
Scalia, Thomas, Alito, Roberts
And 4 liberalsKagan, Ginsberg, Sotomayor, Breyer
Justice Kennedy is the one in the middleA moderate conservativeHis opinion is important in determining the outcome of
many cases
The Supreme Court is moving, slowly, in a more conservative direction
Supreme Court Process
Usually in session October 1 to June 30The “rule of four”
If 4 or more justices agree a case will be heard
Clerks assist with requests and writing decisionsServing as a clerk to Supreme Court is one of
most prestigious positions any law school graduate can get
Supreme Court ProcessWritten Briefs
The Court requests written material from both sides in the lawsuit
The Court may allow interested parties to submit written material, called amicus curiae briefs (friend of the court briefs)
Oral ArgumentsAfter studying the written material the nine
justices listen to arguments from the lawyers on each side of a case (usually 30 minutes each) and ask the lawyers questions
Supreme Court Process
Judicial Conference (in secret)The 9 justices usually meet on Friday to
discuss and deliberate over the cases they heard in oral arguments earlier in the week
They take a tentative vote on each case If the Chief Justice is in the majority he or she
assigns a justice to write the opinion, if not, the senior justice in the majority assigns a justice to write the opinion
Supreme Court ProcessOpinion Writing (in secret)
This stage is like a competitive writing contestThe justice assigned to write the majority opinion tries to write
an opinion that will attract a majorityOther justices may also write opinions to try and sway justices
to their point of view (to try and create a majority opinion with a different outcome or reasoning)All the justices writing opinions send them around to their colleagues
When a majority of justices join one opinion that becomes the majority opinion of the Court Usually the majority opinion is written by the person who was
assigned to write the decision, but not always
Supreme Court ProcessAnnouncement
The justice who wrote the majority opinion then reads the opinion in open court
Usually justices who write dissenting opinions do not read their opinions afterwards, but if the justice is particularly unhappy with the majority decision a dissenting justice my read their dissent
EnforcementIf the Supreme Court overturns a lower court ruling then they
state that the case is remanded back to the lower courtThis means the lower court should rehear the case taking into
account the new decision by the Supreme Court
Nation of Laws AND PeopleThe Supreme Court has developed into an
institution with a great deal of power in our political system because the law is so important
Still, if the Supreme Court strays too far from public opinion its decisions may not be enforcedThe Supreme Court cannot overwhelm a solid majority
of the peopleThe Supreme Court relies on the other branches,
especially the Executive branch to carry out its decisions
Nation of Laws AND PeopleLincoln was able to ignore the Supreme Court’s
decision in Dred Scott because majority opinion opposed the Court’s decision
Andrew Jackson was able to ignore the Supreme Court’s decision protecting the Cherokee, leading to 1000’s of deathsJackson had popular support to carry this out
Nixon agreed to turn over the Watergate tapes, even when they showed him engaging in illegal behaviorWhen public backs Court, can bring down President
Nation of Laws AND People
These examples show that even though the Federal court system, with life appointments, may seem like an anti-democratic part of the government, it still must respect popular opinion to some extent