THE JUDICIARY-chapter 10 AP Book

www.supremecourtus.gov

http://docket.medill.northwestern.edu/archives/004607.php

What are the qualifications per the Constitution to be on the Supreme

Court?• Discuss the nomination process.

• Page 369

• What part does the FBI play in this process?

• What part does the American Bar Association play?

• What is the Federalist Society?

The Constitution and the National Judiciary

• Article III of the Constitution establishes:– a Supreme Court in which the judicial power of the United

States is vested– life tenure with ‘good behavior’ for judges– judges receive compensation that cannot be diminished

during their service– such inferior courts as Congress may choose to establish– the original jurisdiction of the Supreme Court

• The intent of Article III was to remedy the failings of the Articles of Confederation which left judicial matters to the states.

Article III - Supreme Court

President appoints

Senate confirms

Generally speaking, the Court will hear cases

• involves a basic constitutional principle

• an important question of federal law• conflict between state and federal

laws• Handout: How well do you know

your U.S. Supreme Court?

• John Paul Stevens – Ford-retired• Samuel Alito-George W. Bush• *John Roberts-George W. Bush (chief justice)• Antonio Scalia - Reagan• Anthony Kennedy - Reagan• David Souter – Bush-retired• Clarence Thomas - Bush• Ruth Bader Ginsburg - Clinton• Stephen Breyer – Clinton• Sonia Sotomayor-Obama• Elena Kagan-Obama• http://supremecourt.c-span.org/

Supreme Court 2011

Nomination and Confirmation

• The president usually tries to nominate a justice whose political philosophy is similar to his/her own

• The nominee must win approval of the Senate

• We refer to periods by the Chief Justice (Berger Court, Warren Court, Rehnquist Court, Roberts Court)

• Solicitor General-nine and a half member

Political Philosophy

Court - an ever changing political institution that fluctuates between liberalism and conservatism as well as activism and restraint.

Judicial Review• Judicial review is the power of a court to decide

if a law or other legal issue contravenes the Constitution, and overturn it.

• This power is not mentioned in the Constitution. • Judicial review was established by the Marshall

Court for itself and posterity in Marbury v. Madison (1803).

• Marbury's long-term effect has been to allow the Court to have the final say in what the Constitution means.

Judicial Review• Judges have used this power

sparingly. • The power has only been used

about 140 times to strike down acts of Congress.

• Although more frequently (over 1200 times) to invalidate acts of state legislatures.

http://sunnylandsclassroom.org/Asset.aspx?id=1468

• The American legal system is a dual system:– state courts--actually 50 different 'systems'

– federal courts

• Both systems have three tiers: JUDICIARY ACT OF 1789 Annenberg classroom-How a trial works video.– trial courts--litigation begins and courts hear the facts of the

case at hand (original jurisdiction)

– appellate courts--decide questions of law, not fact (appellate jurisdiction)

– high or supreme courts- FIGURE 10.1 PG. 357

Judicial Activism

The Court should take an active role in using its powers to check the actions of Congress, legislatures, the executive branch and agencies.Examples: Roe v. Wade-1973Brown v. Board of Education-1954

Judicial Restraint

The Supreme Court should defer to the decisions made by elected representatives of the people in the legislative and executive branches.

Federal Selection Process• The selection of judges is a very

political process.• Judges are nominated by the president

and confirmed by the Senate. – Often presidents solicit suggestions from

members of the House of Representatives, Senators, their political party, and others.

• Provides president opportunity to put philosophical stamp on federal courts

How the Justices Vote

Legal Factors• Judicial Philosophy

– Judicial Restraint - advocates minimalist roles for judges, and the latter

– Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty.

• Precedent– Prior judicial decisions serve as a rule for settling

subsequent cases of a similar nature.– STARE DECISIS

Extra-Legal Factors-Roper v. Simmons 2005• Behavioral Characteristics

– The personal experiences of the justices affect how they vote. Early poverty, job experience, friends and relatives all affect how decisions are made.

• Ideology– Ideological beliefs influence justices' voting patterns.

• The Attitudinal Model– A justice's attitudes affect voting behavior.

• Public Opinion-World Opinion– Justices watch TV, read newspapers, and go to the store like

everyone else. They are not insulated from public opinion and are probably swayed by it some of the time.

How the Justices Vote

GO TO MIRANDA ACTIVITY

http://www.teachersdomain.org/search/?q=miranda+v.+arizona&fq_grade=PK&fq_grade=PS

Go to favorites: Time Odd Todd cartoon on Miranda.

Demystifying the Cert Process

The Supreme Court “is not and has never been primarily concerned with the correction of errors in lower court decisions.”

- Chief Justice Vinson

The Certiorari Process

The Supreme Court “is not and has never

been primarily concerned with the

correction of errors in lower court decisions.”- Chief Justice Vinson

The Court’s Primary Role

To resolve conflicts in lower courts; interpret the constitution, laws and treaties of the United States

In other words:

“To secure the national rights and uniformity of judgments”

»John Rutledge at the Constitutional Convention

U.S. District Court – 94 districts

Federal Trials

U.S. Circuit Court of Appeals: 12 circuits + Federal Circuit

FEDERAL: 1 million cases/yr STATES: 30 million

cases/yr

Trial Courts – municipal or county

Local Trials

State Supreme Court – highest state court

Intermediate Appeals Court

U.S. Supreme Court

Original Jurisdiction

~80% of cases accepted come from federal system

<1% of cases accepted are original jurisdiction

~ 80 Decisions

Fed.

DC

How many cert petitions are considered?

• In recent terms, there have been between 7,000 and 9,000 cases appealed to the Supreme Court each year

• Out of approx. 8,000 petitions in the average year,

about 70 to 75 are granted (0.9%)

Paid PetitionsPetitions that pay the $300 filing fee

In forma pauperislitigants who can’t pay the filing fee (often prisoners)

~20% of petitions ~80% of petitions

3-4% granted 0.2% granted

Make up 85-90% of docket

Make up 10-15% of docket

Cert: The Numbers in 2008-09

6,142 IFP Petitions1,596 paid Petitions

78 cases argued, 75 decided after argument

About 1% of all petitions!

7,738 total Petitions

+

Statistics compiled from Chief Justice Roberts’s 2009 Year-End Report on the Federal Judiciary and SCOTUSBlog, 6.29.09 StatPack

Cert: The Justices’ Role

With 8,000 petitions per year:

If a Justice spent 40 hours per week, 50 weeks

per year ONLY reading cert petitions, they

would be able to allocate approximately 15

minutes to each petition (which may include

the petition itself, the brief in opposition, a

reply brief, and amicus briefs).

The Justices cannot possibly read all the cert petitions. They just don’t have the time.

Cert Pool

IN the pool NOT in the pool

Roberts

Scalia

Kennedy

Sotomayor

Thomas

Ginsburg

Breyer

Stevens

Alito

=

4 clerks x 7 justices =

28 law clerks

read 8,000 petitions

Each clerk reads and writes a memo on 285 petitions/yr

4 clerks x 2 justices =

8 law clerks

read 8,000 petitions

Each clerk reads 1000 petitions/yr

=

Advantages of the Pool

• Saves time• Someone is more thoroughly going

over each petition• Clerks from other chambers can

mark up pool memos and give to their justice

Disadvantages of the Pool

• Reduces independence if seven of the nine justices are in the pool and they’re relying on one writer for each memo

• The pool gives clerks - generally one year out of law school and only at the Court for one year - too much responsibility for setting the Court’s agenda

“Discuss List”

• The Chief Justice generates a discuss list, based on memos prepared by clerks. Other justices may add to the list.

• All cases generated by Solicitor General (head Supreme Court lawyer for federal government) are automatically discussed

• All Capital Cases discussed (no such thing as a “frivolous case” here)

The Rule of Four

• If four justices vote to grant cert, it is granted

• Designed to prevent tyranny of the majority• If a case does not gain four votes, a justice

may write a “dissent from denial,” but this is extremely rare

• All votes are secret

More “cert-worthy” criteria

• Conflict in lower courts • Important

– Multiple amicus briefs at cert stage– Affects large number of people – Unique/one of a kind case this Court must decide

More reasons to deny than to grant!

• A better case “in the pipeline”• The issue hasn’t “percolated” enough• A petition that raises too many

questions (prefer focusing on one issue)

• Bad vehicle for reaching this legal issue

• Case is deemed “frivolous”

• What’s important is the legal issue raised, not the parties or facts

• Assumption is: a better case will come along if the issue is important

• Don’t want to risk producing a fractured opinion (4-4-1 or 4-2-3 splits)

Petitions filed by individuals are lower priority

Ranking tends to be:#1 - U.S. government#2 - Corporations#3 - States#4 - Organized groups#5 - Individuals

Go to cert activity

Then again…

“It is really hard to know what makes up the broth of the certification process… Some cases are ones you can just smell as grants.”

Supreme Court Justice, 1990 http://supremecourt.c-spa

n.org/CurrentCourt.aspx

How Supreme Court Decisions are Made

Case on the DocketApprox 95

Briefs and Amicus Briefs submitted

Justices ConferenceCases discussed

Votes takenOpinion Assigned

Opinions AnnouncedOpinions Drafted

and Circulated

Oral Argument

RESEARCH SITES

www.oyez.org/oyez/frontpage

www.findlaw.com

www.law.cornell.edu

www.landmarkcases.orgwww.landmarkcases.org

Landmark Cases

• Marbury vs. Madison (1803) judicial review• McCulloch vs. Maryland (1819) upheld

implied powers clause-to tax a bank• Gibbons vs. Ogden (1824) power to

regulate interstate commerce, federal law prevails over state law

• Dred Scott vs. Sandford (1857) contributed to the Civil War

Landmark Cases cont.• Plessy vs. Ferguson (1896) “separate

but equal”• Brown vs. Board of Education (1954)

“separate is inherently unequal”• Baker vs. Carr (1962) reapportionment,

one person one vote• Roe vs. Wade (1973) right to privacy• Gideon v. Wainwright (1961) right to

counsel GO TO DVD

SELECTED SUPREME COURT CASES

• In your textbook: pages 744-750.

• You have a quick reference for cases.

The Supreme Court Today• According to a 1990 poll, only 23% of Americans

knew how many justices sit on the Supreme Court, and two-thirds could not name a single member.

• In 1998, a poll of teenagers showed that only 2% could name the Chief Justice.

• Yet, Supreme Court decisions have been credited with strengthening the Constitution, increasing the power of the federal gov’t., starting the Civil War, reshaping race relations, restoring fairness to our electoral system, redefining the rights of women, and most recently deciding a presidential election!