Transcript of THE JUDICIARY Co-equal branch of the federal government because it has policy making power Likely...
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- THE JUDICIARY Co-equal branch of the federal government because
it has policy making power Likely not the intent of the Founders
More a watchdog than policymaker Original Intent was -
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- John Marshall 4 th Chief Justice of the United States
(1801-1835) JUDICIAL REVIEW -Implied but not stated in Article III
-Allows courts to rule on the constitutionality of laws and
actions- giving them the power to strike down or re-enforce policy,
not just apply and interpret it. Judicial Review makes the US
system unique Starting with Marbury v. Madison and subsequent cases
over the next 35 years, Marshall establishes the courts as a
coequal branch of the federal government, and helps to make the
federal government sovereign of the states. writs of mandamus are a
power of the US courts not because of the Judiciary Act of 1789 but
because of the concept of judicial review
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- Importance of precedence stare decisis- let the decision stand
is the first standard of appellate interpretation The USA has
several types of law as the basis for its legal system 1.Common Law
2.Statute Law enacted by Congress 3.Administrative Law- from
regulation and adjudicatory power given to federal agencies
4.Constitutional law based on interpretation of the
Constitutions
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- JURISDICTION: power to apply and interpret legal power ORIGINAL
JURISDICTION: court case must first begin in this court. APPELLATE
JURISDICTION: court which rules on the proper application of the
law or if the process and procedures were correctly done Structure
of the Federal Court System
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- * these are known as legislative courts, which do not have the
protections of Article III = the constitutional courts also note,
if a state court case involves the interpretation of a US
Constitutional question, it enters at the US Circuit Court of
Appeals. (SCOTUS can even issue a writ of certiorari and take up
the question from a state court.) UNITED STATES FEDERAL COURT
SYSTEM
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- =12
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- PARTICIPANTS IN THE JUDICIAL SYSTEM : judge litigants lawyers
jury audience: media; interest groups; the public LITIGANTS:
plaintiff bringing charges, seeking justice defendant one being
charged Criminal law = violations, injury, harm against society
violation of a specific law - imprisonment and or fines will result
from conviction Civil law = accusation of a violation of ones
rights by another. Person vs. Person finding against or conviction
results in payment for compensation. To sue : tort Hennessy v.
Franzinger (2014) - civil case regarding an alienation of affection
United States v. Booth (1865) criminal case involving the
assassination of Abraham Lincoln
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- Basic criterion to bring a lawsuit is called STANDING - there
are real people involved - there must be a real controversy
involved between the parties - there must be real harm broadening
of the notion of standing has come to make possible CLASS ACTION
SUITS a single individual or small group can represent all others
similarly suited in 1954, nine year old Linda Brown represented all
black students from several school districts around the USA suing
re: discrimination in public education. Brown v. Board of Education
of Topeka
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- Courts have imposed requirements on those seeking financial
compensation thru class action suits: 1. required to make a
significant effort to contact all similarly situated - seen the TV
commercials: Have you been harmed by the use of the Acme widget?!
Call Dewey, Cheetam, and Howe at 800-555-5555 2. tort reform
legislation against frivolous lawsuits Liebeck v. McDonalds
Corporation LAWYERS - advocates for the contending parties.
litigators lawyers who actually argue the case in the court before
a jury/judge prosecutors in criminal cases, lawyers for the
government solicitor general advocates for the US government before
SCOTUS US Attorney - chief prosecutor for the US for a district
court (94) Assistant US Attorneys arguing most of the cases when
the US is sued - these also serve as defense lawyers Public
Defenders appointed for the indigent Gideon v. Wainwright
(1964)
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- The JURY:grand jury: two dozen or more citizens who hear
prosecutory charges issue an indictment: formal accusation and call
to trial petit jury (trial jury): 12 citizens who hear evidence and
arguments decide to acquit or to convict voir dire: the process
done by lawyers and judge to pick jury Important to note : the
accused can opt not to have case heard by jury today less trials
are done by jury. high frequency of plea bargaining- parties
working out a compromise to avoid trial in tort cases: parties
often hire an arbitrator and agree to his/her findings. The
AUDIENCE:interest groups actively seek litigants and their causes
to support. interest group sponsored cases are called TEST CASES
which are about questioning some point of the law. Two important
such groups are NAACP and the ACLU. besides sponsoring a cause,
groups also seek to influence the appellate court thru amicus
curiae briefs (legal arguments) for the court to consider in
formulating its opinion. These groups have no association with the
case other than interest in the courts ruling. Media: always has an
influence so much so that courts can limit its coverage of a trial
gag orders and juries get sequestered.
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- The JUDGE: guide the decision making in an impartial manner -
make procedural rulings - instruct the jury - validate the final
decision of acquittal or conviction - establish the remedy = what
is the result/ solution to the case THE JURISDICTION OF THE FEDERAL
COURTS dual court system exists in USA thanks to federalism: state
and national courts certain cases are given to the federal courts
by the Constitution, and the rest to the state courts by the notion
of reserved powers and the X and XI Amendments federal question
cases: cases arising under the Constitution, the law of the US, and
treaties and diversity cases: cases involving citizens of different
states. (serve as neutral venue) dual sovereignty: state and feds
can prosecute same person for same conduct The Process sovereign
immunity: cannot sue US without its permission 1. SCOTUS 2. Court
of Appeals constitutional question: state cases can be appealed to
SCOTUS if an application 3. District court of a state law or power
is viewed as a violation of the Constitution (civil liberty/civil
right issues) application of Constitutional requirements on the
states is called: incorporation based on equal protection and due
process of XIV Amend.
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- THE SELECTION OF JUDGES Constitution is silent about
qualifications ! All we get is the requirement to exhibit good
behavior Nomination Process POTUS nominates SENATE confirms under
the power of advise and consent but there are 100s of seats at the
district and appellate level and nine justices on the SCOTUS no
single POTUS makes all appointments because of lifetime tenure. But
some POTUS will make more than another. If a POTUS had to appoint
all, it would have to be a full time job! So heres the really
skinny: Staffers in the WHO specialize in finding candidates -
recommendations from DOJ FBI Congress ABA and other interest
groups, even other sitting judges. -The process on the district and
appellate levels is dominated by the tradition: SENATORIAL COURTESY
The Senate rejects if the senior Senator of the majority party,
from the state to be served in, objects to candidate for a district
court. For an appellate judgeship if both senators from the
nominees home state object = Senate Rejection Nomination to the
district courts are fairly cut and dry because of Courtesy, but for
appellate and especially SCOTUS it is much more political and
ideologically driven.
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- The powerful role of the Senate Judiciary Committee - all
nominees are interviewed - if not recommended by the Committee =
Senate rejects Why are you nominated? 1.Political Ideology is good
fit with POTUS (?) 2.Party and Personal Loyalties 3.Acceptability
to the Senate 4.Judicial experience 5.Race and Gender 6.Litmus
Test
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- HOW THE SUPREME COURT (SCOTUS) WORKS 1.Resolves conflicts
between states 2.Maintains national supremacy 3.Ensures uniformity
in the interpretation of national laws 4.Determines the
constitutionality of laws and government actions (policy) SCOTUS
does more than decide specific cases. In the end, it shapes policy
as profoundly as any law passed by Congress or any action taken by
the president SELECTION OF CASES issuing of a writs of certiorari =
CERT via the RULE of 4 - 9 justices seat in panels reviewing cases
petitioning for cert - the panel of 4 justices decide if SCOTUS
will hear the case NB: law clerks doing the research SCOTUS HAS
TOTAL CONTROL OF ITS AGENDA IT WILL HEAR ONLY A HANDFUL OF THOSE
PETITIONED STARE DECISIS is always in play SCOTUS in session from
First Monday in October to early June
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- BRIEFS and ORAL ARGUMENTS brief= printed legal arguments and
cited relevant precedents of the litigants are read by SCOTUS (
included in this reading can be amicus curiae briefs) oral
arguments are then scheduled: Mondays, Tuesdays, and Thursdays each
litigator has only 30 minutes to make the oral argument - the
justices may ask questions and make comments during your 30 minutes
! THE CONFERENCE Wednesday afternoons and all day Friday SCOTUS
discuss and vote on the cases Chief Justice moderates these
discussions. When he feels that they are done, each justice is
asked to give his or her concluding views.
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- OPINIONS once a conference decision is made, the formal opinion
( statement of legal reasoning behind the decision) needs to be
created. majority opinion: official opinion of the court the senior
member of the court in the majority assigns responsibility for its
writing. dissenting opinion: statement of those justice(s) in
disagreement with the majority senior member of the opposition
assigns its writing. concurring opinion: written by a justice who
agrees with the majority conclusion, but for other reasons than
those stated in the majority opinion All opinions are published.
The dissent may be used - citing legal reasoning and precedent for
some future case or issue, especially if the original majority
opinion gets reversed. The author of an opinion often gives it its
worth down through history. The vote of the Court is not formally
calculated. It is deduced from who writes what or who endorses what
opinion. 9-0 8-1 7-2 6-3 5-4 ( weakest- a candidate for
reversal)
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- Implementation of a decision judicial implementation:
translation of a decision into actual policy which affects the
behavior of others No enforcement = Courts rely on the power
possessed by the other branches if POTUS or Congress are gung-ho -
it happens Usually it is not on their agendas, but it gets done
thanks to the bureaucracy which really loves to do its job.
(conditions of aid/regulations) The problem comes if the decision
requires the co-operation of several officials or the wide extent
of the country. desegregation school prayer Corrigans opinion:
Courts often speak for the silent and most of us expect and want
the Courts to do so because as citizens we should but do not which
is both gratifying but also quite embarrassing. We get to play
Pilate !
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- THE COURTS AND DEMOCRACY - the courts are the least democratic
- appointment not election - life tenure - decision can only be
reversed by a higher court, or amending the Constitution But
POPULAR INFLUENCE Judges chosen because of a political
connection/bias to a president Judges read newspapers, go to Home
Depot, worry about their reputations, read their mail worry more
about peer opinion Influenced by the fact of their lack of
enforcement power. POLITICAL IDEOLOGY not babes in the wood or
pristine druids of the law had been and are are members of
political parties and activities above politics, but are
Republicans and Democrats conservative and liberal ( and moderate)
Human beings they have opinions; ethics, moral code BLOODS Roberts*
Scalia Alito Thomas CRIPS Breyer Ginsberg Kagan Sotomayor Swing
Vote Kennedy CONSERVATIVES LIBERALS
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- CONSTRAINTS ON THE POWER OF THE FEDERAL COURTS JUDICIAL REVIEW
makes US judges the most powerful judges in the worlds modern
democracies but 1.Adversarial system - two equal parties present
their arguments to an impartial arbiter need for neutrality more
passive role for the judge 2.Justiciable dispute requirement: need
for standing must be resolvable by legal methods real issue/real
harm 3.Political question doctrine: for the sake of constitutional
principles, some disputes need to be worked out between POTUS and
Congress not in a court room. Classic Checks and Balances: POTUS
controls nature of courts by appointment power Senate must confirm
appointments via advise and consent Congress can alter the
structure of the courts: # of courts; # judges; jurisdictions
Congress can impeach federal judges: 3 since 1989 Congress and the
states can amend the Constitution when a Court finds a law or
action unconstitutional.
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- THE POLICY MAKING POWER most cases decided by the federal
courts only apply existing law to specific cases yet courts do make
policy (take government action) on both small and big issues. There
exists quite a contentious debate about the extent of policymaking
by the courts JUDGE MADE LAW JUDICIAL RESTRAINT vs. JUDICIAL
ACTIVISM Minimal policy making Policy making encouraged; new
(modern) interpretations needed - Judiciary the least democratic -
other branches unwilling or incapable of correcting injustices -
Constitution needs to be understood e.g. Minority rights in a
representative democracy under an in its original context electoral
system based on plurality - judges arent policy experts, so dont
make policy! It is important to realize how political ideology
affects policy making power: BUT liberals are not always activists
and conservatives not always strict-constructionists We are under a
Constitution, but the Constitution is what the judges say it is.
Chief Justice Charles Evans Hughes (1930-1941) Justice Hughes
Strict constructionist Judicial activist