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GOVT 2302
The Judiciary Constitutional Design
In the last set of power points we looked at the general features of the judiciary and walked briefly
through it’s historical development.
This involved coming to terms with the development of common law
and the courts as independent institutions.
Recall that many of the grievances against George III regarding the
judiciary were about his attempts to control it.
We briefly pointed out that there was no national judiciary under the
Articles of Confederation. Having one would subject the states to
lawsuits by other states, or people in other states.
That was a no-no.
But the lack of a national judiciary was one of the many factors
leading to dissatisfaction with the Articles and the calling of the
national convention.
In this set of power points we read through the constitutional articles which establish the design of the
U.S. and Texas Constitutions.
As we know, these articles are:
Article 3 of the U.S. Constitution (Wikipedia Page)
and Article 5 of the Texas Constitution
(Texas Judicial System)
The Constitutional Convention considered the national judiciary
on the following days:
June 4June 5
June 13July 18July 21
August 15September 15
From the Federal Judicial Center:
Constitutional Origins of the Federal Judiciary—Talking Points
The judiciary proved to be far less controversial than other matters
faced by the members of the convention.
The resulting article was very short
3 Sections375 words
that’s it
Here’s a quick overview, with comments.
Section One, Clause One
Comments from Findlaw and Wikipedia.
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
As with the other institutions, a judicial power is acknowledged to exist separate from the legislative and executive, and it is given to an
institution established for that purpose.
By the way, a quick word on titles. Member of the Supreme Court are called “justices,” members of the lower courts are called “judges.”
This is worth a comment. Were the executive to design the judiciary, a dangerous intermingling of power
would be likely to occur. Police and prosecutors, if you recall, work for the executive. The courts must be neutral in how they treat them as
opposed to the defense.
The judiciary has been designed and redesigned in various Judiciary Acts over the course of American history. The current design was
established in 1993. Click here for a history of the court system.
And click here for the current map of the U.S. Courts: Map
(Wikipedia)
Congress also establishes the size of the Supreme Court. This can
become controversial whenever there is a move to increase the size
of the court.
There have been nine members on the court since 1869.
Congress has actually established two types of tribunals. What we
normally consider to be the courts are Article III courts. These are the
institutional responsible for adjudicating the law.
Article III Courts:
U.S. Supreme Court (wikipedia)U.S. Courts of Appeals (wikipedia)
U.S. District Courts (wikipedia) Bankruptcy Courts (wikipedia)
FYI: We are in the Southern District of Texas, U.S. District and
Bankruptcy Court.
That court is in the Fifth Circuit Court of Appeals.
The Interior of the 5th Circuit Court
Congress has also established legislative courts, Article I courts,
which have limited ability to adjudicate matters within their
jurisdiction. These include military courts.
Article I Courts
legislative courts that do not have full judicial power
U.S. Court of Military AppealsU.S. Tax Court
U.S. Court of Veterans' Appeals
Section One Clause Two
The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Both parts of this clause are meant to ensure judicial independence.
“shall hold their Offices during good Behaviour”
The meaning can be loose: “Orderly and lawful action;
conduct that is deemed proper for a peaceful and law-abiding
individual.”
“during good behavior” is generally taken to mean that judges have lifetime tenure, unless they do something that can lead to their removal. They cannot be pressured by the entity that appointed them to the
office.
This is a major component of judicial independence.
Hamilton argued that this was necessary to ensure that the courts would be powerful. As we will see,
he was concerned about the weakness of the courts.
Lifetime tenure has become controversial. Does it allow judges
too much discretion? Should judges serve for limited terms?
Rethinking Life Tenure for Judges
Some related stories:
- Term limits for Supreme Court justices. - No Supreme Court Term Limits.
- Term limits for Supreme Court justices?- Supreme Court term limits.
Who were the longest serving Supreme Court Justices?
William O. DouglasStephen Field
John Paul StevensJohn Marshall
Recall that the appointment and confirmation of judges and justices
is covered in Article II.
The President makes the appointment and the Senate can
confirm then if they choose.
CRS Report: Supreme Court Appointment Process: Roles of
the President, Judiciary Committee, and Senate
Senatorial Courtesy is practiced when appointing judges to the
federal district courts.
Presidents generally seek the advice of Senators of their own
party before appointing judges in that Senator’s state.
This rule doesn’t apply to appellate courts since they straddle many
states.
The President has a degree of influence over who gets on the court, but the selection has to
limited by whoever is likely to be confirmed by the Senate.
Some are successful:
- Elena Kagan Supreme Court nomination- Sonia Sotomayor Supreme Court nomination
- Samuel Alito Supreme Court nomination - John Roberts Supreme Court nomination
Successful nominationsTotal List
Some Are Not:
- Robert Bork Supreme Court nomination- Harriet Miers Supreme Court nomination
Unsuccessful nominations
A party that is able to dominate presidential elections for a lengthy
period of time can influence the nature of Supreme Court decisions.
Democratic success between 1932 and 1948 gave Democratic
Presidents the ability to pack the courts with liberals.
Republican success between 1968 and 1988 gave Republican
Presidents the ability to pack the court with conservatives.
Is the current Supreme Court the most conservative in recent
decades? Is so, why?
Why does this matter?
Liberal justices are more likely to expand the rights of criminal
defendants while conservatives tend to side with law enforcement.
Liberal justices are more likely to side with people who bring civil rights claims against employers
while conservatives have a tendency to side with employers and other accused of violations.
The power of appointment does have an impact on the decisions
the court makes.
Presidents have their best opportunity to have a long-lasting impact on governing by how they
shape the judiciary – who they put on the courts-while they are
president.
Presidential appointments to the Court of Appeals, and especially
the Supreme Court, allow Presidents to influence future court decisions, but only if a
President can successfully predict how a judge or justice is likely to
act on the court.
Dwight Eisenhower was quoted as stating the two worst decisions he
made as President were the nominations of Earl Warren and William Brennan to the Supreme
Court. Both began as conservatives but help drive a series of liberal
decisions.
Many conservatives were also unhappy with the selection of
David Souter who was sold as a conservative, but allied with the
liberals once on the court.
Efforts have been made since to ideologically mold future Supreme Court justices early on so that they aren’t wildcards once they are on
the bench.
The conservative Federalist Society was developed to promote a conservative view
of the Constitution and has helped mold law students into future judges and
justices committed to that viewpoint. Three current members of the court have
been affiliated with the movement: Antonin Scalia, John G. Roberts and
Samuel Alito.
Liberals have recently attempted to match this effort by establishing the American Constitution Society,
which attempts to ensure that liberal judges are placed on the
courts.
What is the current ideological breakdown of the court?
It is commonly argued that the current court (as of the October 2011 term) is composed of four
conservatives, four liberals and a swing vote.
More detail on this to follow.
“shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished
during their Continuance in Office.”
Judges cannot be punished (controlled) by the legislature
through the power of the purse.
Section Two, Clause One
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
This lengthy passage establishes the court’s jurisdiction, that is,
what it has the authority to decide on, that is, what cases it can hear.
First Point:
The sections mentions that the court can hear cases in “Law and Equity.”
Law refers to the common and statutory law. Equity (translegal,
findlaw) refers to Equity is commonly said to "mitigate the rigor of common
law", allowing courts to use their discretion and apply justice in accordance with natural law.
The court seldom hears cases regarding equity.
Second Point:
A factor limiting the court’s jurisdiction:
Cases and Controversies (wikipedia)
The courts can only rule on cases brought before it.
As a consequence: The Judiciary is a reactive institution. It does not
set its own agenda, it responds to cases that are brought before it. It responds to disputes about specific
cases that present controversies that have a solution the courts can
offer.
The judiciary does not deal in hypotheticals, it has jurisdiction
over matters that involve the actual application of a law. This
gives a real world example of the consequence of the law.
It restricts the court from being an advisory institution. John Jay
denied Washington’s request for them to send advice about the
constitutionality of a law as being a violation of the separation of
powers.
Third Point:
People who bring cases before the courts must prove they have
standing before the court.
Standing
“The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case
or controversy that can be resolved by legal action.”
The courts sometimes refuse to rule on cases brought before it because they decided that the
petitioner lacked standing to sue.
Example: Elk Grove v. Newdow
The case was a challenge to the phrase “under God” in the Pledge of
Allegiance. The father did not want his daughter to be made to say the
pledge, but: “On June 14, 2004, the Supreme Court held Michael Newdow, as a non-custodial parent, did not have
standing to bring the suit on his daughter's behalf.”
The court also limits cases based on whether the case is ripe (the
controversy has not arisen yet), or moot (the controversy has already
been resolved).
Fourth point:
The jurisdiction of the court was narrowed very quickly when the Eleventh Amendment overrode this section: “The judicial Power
shall extend to all Cases. . . between a State and Citizens of
another State.”
This allowed the citizens of one state to sue a different state in
federal courts. This did not recognize a state’s sovereign
immunity.
As a consequence, a South Carolinian sued Georgia for
payments due for good supplied during the Revolutionary War.
Georgia claimed sovereign immunity, but lost.
States don’t like to be sued.
Georgia challenged the decision in a case called Chisholm v Georgia.
The Eleventh Amendment was ratified in order to overturn the
decision.
Eleventh Amendment: The Judicial power of the United States shall
not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Fifth Point:
The courts like to avoid political questions.
They do not rule on whether a law is good or bad, but whether it is
constitutional or unconstitutional.
The Political Question Doctrine from the Free Dictionary.
An example from a case involving health care reform:
"That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.
The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins,"
- the US Court of Appeals, DC Circuit
Section Two Clause Two
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
This establishes the job description of the Supreme Court. There are two types of court procedures.
Original Jurisdiction – the trialAppellate Jurisdiction – the appeal
The Supreme Court is primarily an appellate court.
We will see next week that the case of Marbury v. Madison was based on the terminology in this
part of the Constitution. The Judiciary Act of 1789 allowed the
Supreme Court to act as a court of original jurisdiction where the
Constitution did not allow it to.
Section Two Clause Three
The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
This is very similar to the 6th Amendment
It mandates jury trials, and implies that Federal Courts must
exist in each state.
Section Three, Clause One
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
This section seems out of place, unless one remembers the
complaints the British had against the Star Chamber.
The judiciary cannot be used as a tool of oppression.
Accusations of treason are limited and very difficult to prove.
Accusations of treason were commonly made against powerful opponents of the king and were
prosecuted in the Star Chamber in order to guarantee convictions.
By tightening up the definition of treason, the courts were less able to be used in a similar manner by
the national government.
Section Three, Clause Two
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.
This limited the punishment that could be issued to traitors, which against limited the incentive to
aggressively prosecute such accusations.
What is not mentioned?
At least two major factors associated with the judiciary are not mentioned
in the Constitution.
Judicial ReviewInterpretation
The court assumes these powers, though they are not explicitly granted
to the institution.
We will cover the development of judicial review in the next section,
as well as the issues associated with how the Constitution ought to
be interpreted.
Texas Judiciary
Article V of the TexasConstitution
31 Sections8,534 Words
The Structure of the Texas Courts
Map
As with the articles establishing legislative and executive powers,
the Texas Constitution provides far more detail about the judiciary
than the U.S. Constitution.
This places limits on judicial powers.
A few highlights
Article 1
The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.
The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.
The design of the Texas judiciary is spelled out in the Constitution.
Map of Texas Appellate Courts
Judges and Justices elected to six year terms.
The governor can appoint judges to office when there is a vacancy.
It has become customary for judges and justices to resign prior
to an election to provide governors the opportunity to appoint
replacements.
Key consequence of judicial elections:
The judiciary is in fact a democratic institution in Texas. Judges have to
run for office, meaning that they must raise campaign funds, often this comes from interested parties
Can justice be bought in Texas?
Contributions for - high court races.
- appellate court races.
Texas Supreme Court and the Texas Business Alliance
Section 1a creates the State Commission on Judicial
Conduct
Section 7a creates the Judicial Districts Board which is responsible for drawing judicial
districts when they are reapportioned.
Most of the Constitution establishes the design, jurisdiction,
qualifications, and electoral processes for all Texas courts and
court officials.
The Federalist Papers
Topics: - permanent tenure
- compensation- jurisdiction
Six of the Federalist Papers discuss aspects of the Judiciary
The Judiciary Department
Text: Federalist #78Wikipedia
Anti-Federalist #78
The Judiciary Continued
Text: Federalist #79Wikipedia
Anti-Federalist #79
The Powers of the Judiciary
Text: Federalist #80Wikipedia
Anti-Federalist #80
The Judiciary Continued, and the Distribution of the Judicial
Authority
Text: Federalist #81Wikipedia
Anti-Federalist #81
The Judiciary Continued
Text: Federalist #82Wikipedia
Anti-Federalist #82
The Judiciary Continued in Relation to Trial by Jury
Text: Federalist #83Wikipedia
Anti-Federalist #83