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Chapter 9: The Judiciary

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Kentavian Brown

on 11 December 2013

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Transcript of Chapter 9: The Judiciary

After election, because there is nothing to stop gerrymandering
9.5 Judicial Philosophy and Decision Making
Judicial Philosophy, Original Intent and Ideology
Public Opinion

The Judiciary
9.1 Roots of the Federal Judiciary
9.4 The Supreme Court Today
9.2 The Federal Court System
Dual system
-federal court system
-judicial system
It has three Tiers
-Court of last Resort
-Appellate Courts
-Trial courts
Also called Constitutional courts

9.3 How Federal Court Judges are selected
9.6 Toward Reform: Power, Policy making, and Court
-Top Tier
-also know as the supreme court
-on top of federal and state court systems
-has original jurisdiction in cases involving state governments and public officials
Appellate Court
-Middle tier
-Court of Appeals
-review only findings of law made by trial courts

Trial Courts
-Bottom tier
-Also known as the District courts
-Litigation begins here
Court of last Resort
The Supreme court
Reviews U.S. court of appeals and state supreme courts and acts as final interpreter of the U.S. Constitution.
Center of highly controversial issues that the political process has yet to resolve successfully.
Appellate Courts
Tries to correct errors of law and procedures that have occurred in lower courts or administrative agencies.
No new testimony's, instead lawyers submit written arguments called a breif
Trial Court
-Currently 94 is the number of district courts
-every state has at least one federal district court
-Some of the most populous states like Cali, Texas, and New york each have four.

-Three case categories that are held in federal district courts
-they involve the federal government as a party
-questions based on a claims under the U.S. Constitution are, a treaty, a federal statue (also called federal question jurisdiction and can involve criminal and civil law)
-involve civil suits in which citizens are from different states, and amount of money is more than $75,000.
Senatorial Courtesy
A process the president uses to screen nominees.
-The president generally allows senators from the state in which a judicial vacancy occurs to block a nomination by simply registering an objection. - (Blue slip)
Judicial restraint:
A philosophy of judicial decision making that posits courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own principles
Judicial activism:
A philosophy of judicial decision making that posits judges should use their power to broadly further justice
Strict constructionist: An approach to constitutional interpretation that emphasizes interpreting the Constitution as it was originally written and intended by the founders
Who are the Federal Judges?
Judicial implementation: Refers to how and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit

Judicial Restraint vs. Judicial Activism
Judicial Restraint
Unelected judges make up the federal courts, which renders the judicial branch the least democratic broach of government
Consequently, the courts should defer to the policy making of other branches of government as much as possible
Judicial Activism
Judges should use their powers broadly to further justice
It is appropriate of courts to correct injustices committed by other branches of government
Implicit in this argument is the notion that courts need to protect oppressed minorities
Nomination Criteria
1. Experience
2. Ideology/Political Preferences
3. Rewards
4. Pursuit of Political Support
5. Religion
6. Race/Ethnicity/Gender


-Most nominees have had substantial judicial or governmental experience, either on the state or federal level. Many have law degrees or some other form of higher education.

* EX. John Jay - 1st Chief Justice (Author of The Federalist Papers) was active in NY Politics.

*Ex. 2012, all 9 sitting Supreme Court Judges have previous experience except former Solicitor General Elena Kagan.
Ideology/ Political Preferences

Franklin D. Roosevelt
Richard M. Nixon
Ronald Reagan
- All achieved success in molding the federal judiciary to this political belief.
Presidents usually appoint judges who seem to have a similar political ideology to their own. In other words, a president with a liberal ideology will usually appoint liberals to the courts. Likewise, conservative presidents tend to appoint conservatives.

A remarkably high percentage of a president's appointees belong to the president's political party. Although political favoritism is less common today than it was a few decades ago, presidents still appoint friends and loyal supporters to federal judgeships.
Pursuit of Political Support
Previously dominated by Traditional Protestant Faiths.
- President Obama nominated solicitor-general Elena Kagan to the US Supreme Court to fill the post vacated by Associate Justice John Paul Stevens. With her nomination to the US Senate, the US Supreme Court will no longer have any Protestants on its bench. It will, instead, be made up of six Catholics (Chief Justice John Roberts, Justice Antonin Scalia, Justice Anthony Kennedy, Justice Clarence Thomas, Justice Samuel Alito and Justice Sonia Sotomayor) and three Jews (Justice Stephen Breyer, Justice Ruth Bader Ginsburg, and the putative Justice Elena Kagan)
Race / Ethnicity / Gender
Until relatively recently, almost all federal judges were white males. Today, however, ethnicity and gender are important criteria for appointing judges. In 1967, Lyndon Johnson appointed the first African American Supreme Court justice, Thurgood Marshall. In 1981, Ronald Reagan appointed the first woman to the Supreme Court, Sandra Day O'Connor. All recent presidents have appointed African Americans, Latinos, members of other ethnic minority groups, and women to district courts and courts of appeal.
Overcoming obstacles that may affect a successful campaign.
* Ronald Reagan
- Gender gap - He was far less popular with female voters than male in voters population.
His nomination of Sandra Day O'Connor was a tactic to gain more female support.

-The personal and professional background is subject to FBI investigation.
-Formal nomination is sent to Senate Justice Committee, who then continues with its own investigation.
ExThe "Litmus Test" - Although most senators and presidents deny it, some observers believe that candidates must pass a "litmus test," or a test of ideological purity, before they may be nominated and/or confirmed to the Supreme Court. One recent litmus test supposedly has been the individual's attitude toward abortion rights. Nominees David Souter and Clarence Thomas both were grilled by the Senate Judiciary Committee about their opinions on prominent abortion cases.
Lobbying by Interest Groups
Judge Robert H. Bork ( His nomination to Supreme Court led a liberal group to launch an extensive radio, t.v., print media campaign against the nominee.
- 42-58 votes
The Senate Committee Hearing & Senate Vote
Supreme Judicial Committee usually makes a recommendation to the full senate.
Any rejections of presidential nominations to supreme court happen after the supreme judicial committee has recommended against nominated appointment.
* Few have come close.
- Supreme Court Justices Clarence Thomas & Samuel Alito confirmed by less than ten votes.
The Confirmation Process
1. Investigation
2. Lobbying by Interest groups.
3. The Senate Committee Hearings & Senate vote.
The Constitution provides broad parameters for the judicial nomination process. It gives the responsibility for nominating federal judges and justices to the president. It also requires nominations to be confirmed by the Senate.
Chapter 9: The Judiciary
1. Senatorial Courtesy
2. Who are the Judges?
3. Nomination Criteria
4. The Confirmation Process.
Pros and Cons of Strict Constructionist
The original constitution does not change
The founders created the basis of our current government, it makes sense that they might have foreseen some problems in the future
It’s open to interpretation what the founders wanted or were thinking
The constitution does not have language applicable to all cases; it does not say anything about an Air Force, for example
Times have changed in 200 years, what worked then may not work now
The founders owned slaves; relying on them to be right in all things is a foolhardy ideal
Public Opinion
Public opinion can also have an influence on how the court rules
The court’s decision may be influenced by recent events, polls, political actions, or other outside events
Conversely, a Supreme Court decision may also have a small impact on public opinion, usually in favor of the decision
Judicial Implementation
Once a case is decided, it must be determined who the ruling impacts: just those in the case, or a more broad number of people
The profile and reach of the case can determine the scope and difficulty of implementation
For an extreme example, Brown v. Board of Education (1954) outlawed racial segregation in schools, but it took until 1965 and sending in the National Guard to be fully implemented
How does this affect you personally?
Section 4-B of the Voting Rights Act, required pre-clearance in certain areas in the South that had a history of voter discrimination
The Supreme Court struck this section down in Shelby County v. Holder (2013)
One result of this was the newly created TX-35 district
Doggett's old district, TX#25, was redrawn to oust him from power, so Doggett ran in the new TX#35 instead
Doggett is an Austin representative, but thanks to gerrymandering, he now represents more people in San Antonio than in his home of Travis county
This is Texas District #35, Lloyd Doggett's district
Prior to section 4-B being struck down, a district like this would have been required to pass preclearance
Now, a lawsuit must be brought to prove the district is discriminatory, which may only be decided after the election in the district
This places the burden of proof on the people bringing up the lawsuit proving that a district is drawn in a discriminatory way, rather than the district being automatically evaluated for discrimination
If a district is proven to be discriminatory after an election occurs, the choice is to either redo the election, or accept the election's result
Draw up a discriminatory district
A lawsuit is brought up against the discriminatory district
If the district is proven in court to be discriminatory, a new district map is redrawn
Election occurs
Is the new map still discriminatory?
This cycle of voter discrimination and gerrymandering will repeat ad nauseum, until congress re-instates section 4B of the VRA
This requires a bill to pass both the Senate and the House of Representatives, and be signed by the President
Given the current state of Congress good luck with getting section 4B of the VRA re-instated
Until then, we're stuck with this thanks to the Supreme Court decision of Shelby County v. Holder (2013)
Writ of Certiorari - a request for the Supreme Court to order up the records from a lower court to review the case.
Statute - law enacted by legislature
Certiorari Process
9.6 Towards Reform: Power, Policy Making, and the Court
Policy Making
One of the main way the courts can exercise their policy-making power is the court's ability to declare laws unconstitutional
Another measure of policy-making power is the Supreme court's ability to overrule itself
For example, Brown v. Board of Education (1954) overruled Plessy v. Ferguson (1896) and reversed the almost 60 year precedent that racial segregation was not a violation of the Constitution
All petitions must meet two criteria:
1. Case must come from a U.S. court of appeals, a court of military appeals, district court, or a state court.
2. The case must involve a federal question. Meaning, the case must present questions of federal constitutional law or involve a federal statute, action, or treaty.
After meeting the criteria for writ of certiorari the clerk of the court transmits the petitions to the chief justice's office.
Certiorari process continued...
The chief justice's clerks then review the petitions before sending them to individual justice's offices.
Each justice's clerks review their assigned fraction of petitions and share notes. This is what is known as the "cert pool".
Certiorari Process cont..
After review in the "cert pool" cases deemed worthy by the justices go out onto the "discuss list"
Deciding to Hear a Case
Since 1988 nearly all cases that have gone to the Supreme Court arrived there on a petition for a "writ of certiorari"
Centiorari process cont...
The decision comes to an end when the justices vote after reviewing the "discuss list" at one of their weekly conference meetings.
Is there enough time before the election for another lawsuit?
The "discuss list" is prepared by the chief justice's clerks and are then circulated to the other justice's. All petitions that did not make it to the "discuss list" are "dead listed" and go no further.
Only about 30% of submitted petitions make it to the "discuss list".
The petitions are granted according to "rule of four".
Rule of four - when at least four justice's vote to hear a case.
Cases that typically survive the process involve:
The federal government being the party asking for review.
Conflict among the Court of Appeals.
A civil rights or civil liberties question.
Ideological or policy preferences of the justices.
Significant social or political interest.
Solicitor General - appointed by the president as the 4th ranking member of the Department of Justice. Responsible for handling nearly all appeals on behalf of the U.S. government to the Supreme Court.
The office of the solicitor general appears as a party or as an "amicus curiae" on behalf of the U.S. government in more than 50% of the cases heard by the Court each term.
Amicus Curiae - "friend of the court"; may file briefs or appear to argue their interests orally before the court.
Federal Government
Hearing and Deciding the Case
After the court accepts a case for review, lawyers on both sides of the case prepare written arguments for submission to the court. In these briefs, lawyers make arguments regarding why the court should be in favor of their client.
Oral Arguments
After the court accepts a case and both sides have submitted briefs an oral argument takes place.
Attorneys are allotted one half hour to present their cases. This includes the time required to answer questions from the justices.
The Conference and the Vote
The justices meet in closed conference twice a week when the Court is hearing oral arguments.

The chief justice presides over the conferences and presents each case. Then each individual justice discusses the case in order of his or her seniority.
Formal Opinion
After the Court reaches a decision in conference, the justices form a formal opinion of the Court.
If the chief justice is in the majority he must select a justice to write the opinion.
If the chief justice is in the minority, the most senior justice in the majority must write the opinion.
Formal Opinion cont...
Most decisions are reached by a majority opinion which is written by a single member of the court reflecting the views of at least five justices.
The opinion gives legal reasoning justifying the decision.
Informal caucusing and negotiation may take place due to slight modifications as a condition of a justices continued support of majority opinion.
Justices who do not agree with the outcome of the case can file disagreeing opinions although they do not have legal value, they can show a justice's personal and legal disagreements with other members of the court.
The Beginning
During the Constitutional Convention in Philadelphia James Madison notes proved that Framers put in little time in creating Article 3 which consist of the judicial branch. They believed we didn’t really need a judicial branch.

A final compromise
left the choice to
Congress that started
Article 3 Section 1
and began vesting
“The judicial Power
of the United
Cases The Supreme Court is involved in..
Chief Justice William Rehnquist in his book, The Supreme Court: How It Was, How It Is

1. If the decision is from one of the US Court of Appeals Circuit Courts, whether it is in conflict with the decisions of other Circuits;
2. whether the case is of national importance, or would have a significant impact on society; or
3. whether the lower court's decision is considered wrong in light of the U.S. Supreme Court's earlier opinions (precedents).
The Checks on The Judiciary
The Constitution gives Congress the authority to alter the Courts ability to hear certain cases. Congress can also propose constitutional amendments that, if ratified, can reverse judicial decisions, also can impeach and remove federal judges. The President with the “advice and consent” of the Senate, appoints all federal judges. The Court can check the presidency by presiding over presidential impeachment.
Judicial review-Power of the courts to review acts of other branches of government and the states.
Allowing the judiciary to review acts of the other branches of the government and the state.
Judiciary Act of 1789 & Creation of the Federal Judicial System
Judiciary Act of 1789- Legislative act that established the basic three-tiered structure of the federal court system.
From the bottom- The Federal district courts at least 1 in each state.
If people were unhappy with the verdict from the federal district courts they can go to the circuit courts(courts of appeals)-function as a trial court for important cases with 1 district court judge and 2 supreme court justices who met as a circuit court twice a year.
The Marshall Court: Marbury v. Madison (1803) and Judicial Review
John Marshall was appointed chief justice by President John Adams in 1800
He helped to establish the role and power of the court.
For example he helped the Court to take its place as an equal branch of government. He believed, the justices needed to speak as a court and not as 6 individuals.
Marshall court also est. the authority of the Supreme Court over the judiciaries of the various states.
The Court est. the supremacy of the federal government and Congress over state governments through a broad interpretation of the necessary and proper clause in McCulloch v. Maryland 1819
“was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.”
Marbury v. Madison 1803
Marbury became known as the midnight judge. Adam appointed him to Justice of the peace right as he was leaving office.
It then became the job of Secretary of State James Madison to deliver his commission
Under explicit instructions from Jefferson, Madison was to withhold Marbury’s commission.
The Jefferson administration wanted to put an end to the practice of appointing “midnight judges.”
The men wanted the Supreme court to force him to give his commission.
Current Supreme Court
The Warren Court (1953-1969)
Franklin D. Roosevelt
Richard M. Nixon

Ronald Reagan
Clarence Thomas
Full transcript