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The Judiciary

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Ms. Wroth

on 29 January 2018

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Transcript of The Judiciary

The Judiciary
Roots of the Federal Judiciary
Supreme Court: Est. in the Constitution: Article III, Section 2

Lower federal courts: Est. by the Judiciary Act of 1789. district courts > circuit courts > Supreme Court

Marbury v. Madison: Justice John Marshall claimed the authority of
judicial review
, implied by the supremacy clause.
Criminal and Civil Law
The Federal Court System
District Courts
Courts of Appeal
The Supreme Court
Federal Appointments
In order to hear a case, federal
courts must have jurisdiction,
the authority to decide the issues
of the case.

original jurisdiction
: court's ability to hear the case first (90% of cases

appellate jurisdiction
: court's ability to review/revise the decision of a lower court.
Criminal law: Law to protect property and individual safety
Felonies and misdemeanors
Society is the victim, the injured person is the plaintiff, the government prosecutes
Traditionally belong to state courts (unless federal courts have jurisdiction)
Civil law: regulates conduct and relationships between individuals or groups
Involve lawsuits seeking judicial relief and recover something of value (i.e. right to vote, fair treatment, monetary compensation)
Most are settled out of court
Plaintiff can be individual, group, or the government (on behalf of the citizens)
Federal courts are called
, as Article III establishes or authorizes Congress to establish them..
Federal judges are appointed by the president, confirmed by the Senate, and serve lifetime terms
District Courts are federal trial courts. They have original jurisdiction over generally three categories:
Federal government involved as a party
Case presenting a federal question based on the Constitution, international treaty, or federal statute
Civil suits between citizens from different states where the amount of money at issue is more than $75,000

Each DC has has a U.S. Attorney, who is that district's chief law enforcement and has discretion over investigations and charges.
Intermediate courts that hear appeals from the district courts (have only appellate jurisdiction).
Number of judges ranges from 6 to 29, rotated on 3-judge panels (in important cases, all judges may preside together,
en banc
Cases can be appealed to SCOTUS, but the request is rarely granted
Try to correct errors of law and procedure, not hear new testimony. Lawyers submit briefs and argue orally.
Binding only within district
Reviews cases from appellate courts and state supreme courts
Establishes national
(rules for settling future cases of a similar nature)
stare decisis
= let the decision stand
Eight justices and a chief justice (number has varied from 6 to 10)
4 clerks per justice and
400 total staff members
Senatorial courtesy
: Presidents often defer
selection of DC judges to the Senators of his party of that state. In higher positions, the President may already have a list or an individual in mind.

There are generally six important criteria to be considered:
Pursuit of Political Support
Race, Ethnicity, & Gender
Most nominees have some judicial, legal, or governmental experience.

Only one of the current justices, Elena Kagan, was not previously a judge.
Presidents seek to choose nominees who share their policy preferences.

President Reagan was especially successful, nominating 4 justices with similar political beliefs.
Many presidents nominate individuals who are of their party, have worked in their administrations (typically the DoJ), and even personal friends.
Most have been Protestant.
Only twelve have been Catholic (5 on current Court)
Eight Jewish justices.

No other religions have been represented, and no professed atheists.
President Reagan promised to nominate the first female justice when campaigning for female voters.
President Obama sought popularity with Hispanic voters when appointing the first Hispanic justice
Only two African Americans and four women have served on the Court.

George H.W. Bush was careful to replace the first black justice, Thurgood Marshall, with another black justice, Clarence Thomas.

Sandra Day O'Connor was displeased to have been replaced with male nominees, and both of President Obama's nominees* were women.
The Senate has the authority to approve all
nominees to the federal bench.

The Senate Judiciary Committee is responsible
for investigating nominees, holding hearings, and recommends action to the rest of the Senate.

In the Senate, a majority vote means confirmation.
Before nominating, WH staff investigate. They refer to the American Bar Association, who rate candidates as "Well Qualified," "Qualified," or "Not Qualified"
After a name is put forward, the SJC begins its own investigation including witness statements and a detailed questionnaire:
Previous written opinions
work (dating back to college and even HS)
judicial philosophy
speeches and interviews given
Interest groups take interest in the nomination process, for SCOTUS nominees as well as lower federal court positions.

media campaigns for or against a nominee (ex: Robert Bork)
televangelists promoting conservative nominees
Senate Committee Hearings
Since the 1980s, senators publicly question nominees.
Most nominees refuse to answer many questions on the grounds that they may preside over the issue.

Rejections of nominees generally take place only after a negative recommendation from the committee.
Deciding to Hear a Case
writ of certiorari
is a petition for the Supreme Court to review the records of a case from a lower court.
must come from court of appeals, court of military appeals, district court, or state supreme court.
must involve a federal question (involve federal statute, action, or treaty)

Rule of Four: The case is added to the docket when four of the nine justices agree to hear it.
Characteristics for Reaching SCOTUS
SCOTUS: Oral Arguments
SCOTUS: Conference and Vote
SCOTUS: Opinions
Judicial Philosophies
The Court and Policy Making
Implementing Court Decisions
There are several cues as to whether SCOTUS will agree to hear a case:
the federal government is asking for review
there is conflict between circuit courts
there is a civil rights/liberties question
the case involves the ideology of the justices
there is social or political interest (evidenced by multiple amicus curiae briefs)
Federal Government
Conflict in Lower Courts
Interest Group Participation
The solicitor general is the fourth-ranking member of the DOJ, and handles nearly all SCOTUS appeals on behalf of the U.S. govt.
has offices in Supreme Court building
sometimes called "ninth-and-a-half justice"
also files amicus curiae briefs

The Court accepts 70-80% of cases petitioned by the government (compared to 5% of all other cases).
Justices want consistency in interpretations of federal or constitutional law.

Conflict often occurs when dealing with civil rights or civil liberties questions.
Interest groups provide
briefs to the court, as well as information not in either party's briefs.

They may also provide assistance to counsel in writing briefs, oral arguments, and practice in mock trials.

It is expensive to reach the Court, so interest groups may join a similar, ongoing case through an
brief. Research has found that the more briefs, the more likely to reach
Once SCOTUS accepts a case, and after
briefs are submitted, oral argument takes place.
SCOTUS term runs from October and June, last oral arguments heard in April
alternates between sittings (arguments), and recesses

Limited to the immediate parties, who are given 30 minutes to present. During this time they are questioned by the justices.
During oral arguments, justices meet in closed conference twice a week.
The Chief Justice presides and presents each case.
Each justice discusses the case in order of seniority.
They sometimes try to convince each other, but in most cases each enters conference with their mind made up.
Conference votes are not final.
If the Chief Justice is of the majority opinion, he will appoint justice to write the formal opinion. If he is not, it goes to the most senior majority voter.

Majority opinions:

written by one member to reflect the views of at least five justices.
sets out the legal reasoning used in the decision and sets precedent.

Plurality opinions:

justices agree on outcome, but not on reasoning
lack the same value as precedent
Dissenting opinions:

written by justices who disagree with the outcome of the case
little direct legal value
judicial restraint: decisions of other branches
should stand even when they offend a judge's own principles
judicial activism: judges should use their power broadly to further justice
strict constructionist: Constitution should be interpreted as it was intended by the Framers (changes should be made by Congress, not the Courts).
loose constructionist: Constitution should be interpreted using the views of today's society (Constitution is a "living document")
More than 100 federal laws have been declared unconstitutional. The Court also has the ability to overrule itself (and has in 200+ cases).

More recently, the Court has also taken on political questions previously left to the other branches (ex: size of congressional districts)
SCOTUS rulings carry legal authority, but they must rely on the other units of govt. to carry them out (ex: Brown v. Board was unenforced for years).

For effective implementation, the
implementing population
(people responsible for carrying out a decision) must understand and follow the court policy, and the
consumer population
(people directly affected by a decision) must be aware of the rights that the decision grants or denies them.
Full transcript