The Judiciary

Chapter 14

Learning Objectives

• Analyze the implications of the adversarial process• Explain the structure of the federal court system• Compare and contrast arguments in favor of and against

judicial activism• Describe the process of reaching a decision to the U.S.

Supreme Court• Assess the influences on the U.S. Supreme Court• Compare and contrast the limits of judicial action• Assess the roles of the judiciary in a constitutional

democracy

Balance of the Court

Liberal Conservative

“We are under a Constitution, but the Constitution is what the judges say it is……”-Justice Charles Evans Hughes

Understanding the Federal Judiciary

• The judiciary is generally guarded from public opinion and the rest of government– No Terms (good behavior)– No salary reductions once confirmed– Guaranteed independence

Characteristics of the Federal Judiciary

• Judicial Review (Marbury v. Madison) • Adversary system: based on the theory that

arguing over law and evidence guarantees fairness

Criminal vs. Civil Law

• Criminal trial a person’s liberty is at stake

• Government provided attorneys

• Right to a jury

• Civil case penalties are predominantly monetary

• No guaranteed attorney• No jury trials in state

civil trials

Cases, Controversies, and Justiciability

• Can only decide cases dealing with real controversy.– Must be brought to them– Must have already impacted a person (i.e.

Obamacare) – Court should not here political questions, these

are more properly dealt with be the legislature (Bush v. Gore)

Prosecuting Cases

• U.S. Department of Justice is responsible for prosecuting federal criminal and civil cases.– Headed by attorney general (Eric Holder)– Assisted by solicitor general (Neal Katyal)• Reps in front of Supreme Court cases

– 94 U.S. attorneys– 1,200 assistant attorneys

Three Types of Federal Courts:Judiciary Act of 1789

Supreme Court

Circuit Courts of Appeal

District Courts

Three Types of Federal Courts:Judiciary Act of 1789

• Supreme Court original jurisdiction only in cases involving ambassadors, other public ministers, and other diplomats, and cases in which a stat or states are a party– Rest of the time only appellate jurisdiction

• Currently 9 justices, originally 6

Three Types of Federal Courts

• District Courts• 678 judges across 94 district courts• Hear the majority of cases

Three Types of Federal Courts

• Circuit Courts of Appeals• Appealing a case means taking it a higher

court for review• Judges must use precedent• 13 of these courts, Indiana is in district 7• Usually operate in panels of three judges

Judicial Federalism: State and Federal Courts

• Writ of habeas corpus: a court order requiring explanation to a judge why a prisoner is being held in custody.

• State courts use their own constitution and laws, only when in conflict with the Constitution do federal courts interfere

Appointing Federal Judges

• Appointed by President, approved by Senate• Supreme Court = no requirements• Assumed they would be skilled in law• Washington established tradition– Same party– Same beliefs– Same rulings– Senator advice for district courts, ensuring every

state is represented

Appointing Federal Judges

• Presidents consult with Congress, especially senate• American Bar Association (ABA) rates candidates

for appointment• Interest groups also chime in• Senate Judiciary Committee conducts interviews

and investigations– May ask about personal history, opinions, and

philosophy– 31 of 152 nominees have been refused by the Senate

The Role of Party, Race, and Gender

• 10% of nominations are from opposing party• Race, gender, and ideology more important

now• More diversity in nominations with recent

presidents– Clinton 50%– Bush 37%

Role of Ideology

• Regan’s two terms he appointed 368 lifetime judges

• “Right kind” of democrats and republicans must be found

Role of Judicial Philosophy

• Are judicially active or do they demonstrate judicial restraint?

• How do they interpret the Constitution?– originalists

• Reforming the selection process after the 1987 and 1991 televised confirmation hearings of Robert Bork and Clarence Thomas

How the Supreme Court Decides

• Term 1st Monday in October through the end of June.

• Hear arguments for two weeks, adjourn to consider cases and write opinions for other two weeks– 6 needed to rule, majority wins, lower court

stands in case of tie

How the Supreme Court Decides• 8 Step Process

1. Reviewing appeals2. Granting the appeal

• Rule of 4

3. Briefing the Case4. Holding the Oral Argument

• 30 minutes only

5. Meeting in Conference• Friday mornings

6. Explaining the Decision• Opinion, Dissenting, Concurring

7. Writing the Opinion• Difficult tedious task, lots of responsibility and negotiating

8. Releasing the opinion• Publicly released www.supremecourtus.gov

Influences on the Supreme Court

• Supreme Court precedent is the primary influence.

• Interest groups, chief justice, and law clerks, solicitor general, and citizens

After the Court Decides

• People do not always immediately follow the courts rulings.

Limits on Judicial Action

• “stare decisis” to stand by that which is decided, or let the decision stand

• Congressional and Presidential Action– Can’t be removed individually, but they can act to

impact all of the judiciary• Similar to schools

Judicial Power in a Constitutional Democracy

• Judicial must remain independent• Elections matter– Appointments

• Judges are aware of public opinion– They rely on the approval of our free people