Chapter 14

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Judicial Policymaking Judges confront conflicting values in cases

before them

Some courts, such as the Supreme Court, make fundamental policy decisions Decisions become precedent for similar

cases

Court decisions can, therefore, undo work of elected majorities

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National Judicial Supremacy

Supreme Court--- only court defined by Article III, Section 1 of the Constitution Congress given power to create national

court system

Judiciary Act of 1789 created system of federal courts separate from state courts In early years of Republic, not particularly

powerful4

Chief Justice John Marshall

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Judicial Review of the Other Branches

Constitution does not speak to question of “who should prevail?” in conflict between different branches of government

In Marbury v. Madison (1803), Supreme Court established power of judicial review Ruled that act of Congress authorizing

Supreme Court to issue orders against government officials unconstitutional

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Judicial Review of State Government

In 1796, Supreme Court ruled that a Virginia law canceling a debt to a British creditor violated U.S. Constitution's Supremacy Clause Virginia law therefore nullified

National supremacy requires Supreme Court to impose uniformity of national laws

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The Exercise of Judicial Review

The components of judicial review: Federal courts can declare national,

state, and local laws unconstitutional

National laws or treaties supreme when conflict with state or local laws

Supreme Court final authority on meaning of Constitution

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The Exercise of Judicial Review

Is judicial review undemocratic since federal judges appointed? Federalist No. 78 saw judicial review as

barrier to legislative oppression Constitutional amendments and

impeachment means to correct judicial errors

However, this power does mean judges can operate counter to majoritarian rule

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The Organization of Courts

U.S. has complex court system

Individuals fall under jurisdiction of both national and state courts Litigants file nearly all (99%) of cases

in state courts Volume of state cases increases

about 1% a year, mostly contract disputes

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Figure 14.1

The Federal and State Court Systems, 2008-2009

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Some Court Fundamentals

The government prosecutes criminal cases, or violations of penal code

Some crimes common to all states, others specific to individual state or a few states Maintaining public order largely a state or

local function Federal criminal cases related to activities

that fall under powers of national government

Civil cases involve disputed claims to something of value

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Procedures and Policymaking

Most cases never go to trial Prosecutors may plea bargain Parties to a civil case may settle or one

may abandon efforts

Cases that go to court end in an adjudication Written reasons supporting a judicial

decision called opinions13

Judicial Policymaking Judges make policy two ways:

Rulings where no legislation exists make common, or judge-made law

Judicial interpretations of legislative acts called statutory construction

With or without legislation, judges look to relevant opinions of higher courts to guide them

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The Federal Court System

Organized in three tiers, as a pyramid Litigation starts with U.S. District Courts Appeals then go to the U.S. Courts of

Appeals Final tier is Supreme Court

Courts of Appeals and Supreme Court generally review only cases already decided in lower courts

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The Federal Court System

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The U.S. District Courts

Each state has at least one federal district court A total of 94 federal district courts Entry point for federal court system U.S. magistrate judges assist

district judges but lack independent judicial authority

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Sources of Litigation Federal criminal cases

Civil cases alleging a violation of national law

Civil cases brought against the U.S. government

Civil cases between citizens of different states if disputed amount exceeds $75,000

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The U.S. Courts of Appeals

Twelve regional U.S. courts of appeals Thirteenth court, U.S. Court of Appeals for the

Federal Circuit, is not a regional court

Each appeals court hears cases from a geographical area, or circuit

All cases resolved in U.S. district court or decisions of federal administrative agencies can be appealed

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Geographic Boundaries of Federal District Courts and Circuit Courts of Appeals

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Appellate Court Proceedings

Rulings based on rulings made and procedures followed in trial courts If ruling incorrect or proper procedure

not followed, may order new trial

Most cases resolved by panel of 3 judges Judges review written briefs May or may not schedule oral

arguments 21

Precedents and Making Decisions

Written judgment of appellate courts serve as precedent for subsequent cases

Judges make policy to extent they influence other courts

Stare decisis : Let the Decision Stand.. provides continuity and predictability to the law

Rulings designed to correct errors in district court proceedings and to interpret the law

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Uniformity of Law Appellate courts try to harmonize

decisions in region when district judges make conflicting rulings

However, courts of appeals not bound by decisions of other circuits

Supreme Court avenue for resolving conflicting decisions by different circuit courts of appeals

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The Supreme Court Supreme Court strives to achieve a

just balance among the values of freedom, order, and equality

Flag burning as a form of political protest

School desegregation Race as a factor in university

admissions24

The Justices of the Supreme Court of the

United States

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A Supreme Court of Its Own

The United Kingdom latest democracy to establish a supreme court

Prior to October, 2009, a committee from the House of Lords exercised judicial functions

New court independent of Parliament Signals an increasing federalization of

the United Kingdom

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UK Supreme Court

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Access to the Court Idea that anyone can take a case to the

Supreme Court theory, not fact

Court’s cases come from two sources: Original jurisdiction established by Article III,

Section 2, of the Constitution Appellate jurisdiction from U. S. courts of

appeals or a state’s court of last resort

Cases from state courts must have exhausted appeals in their state system and deal with a federal question

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The Supreme Court’s Docket

Supreme Court hears fewer than 100 cases from the more than 8,000 submitted each year Requests made by petition for certiorari Rule of four unwritten requirement Business cases substantial portion of

docket

Justices meet twice a week to vote on previously argued cases and consider new cases

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The Solicitor General

Represents the national government before the Supreme Court Third-ranking position in Department of

Justice

Duties include determining whether to appeal a lower court’s decision, reviewing briefs for appeals, and deciding whether or not to file amicus curiae briefs in any appellate court

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The Solicitor General Position has two roles:

Advocate for president’s policy preferences Defend the institutional interests of the

national government

Traditionally recommends only cases of general importance

Some call position “the tenth justice”

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Decision Making

Once review granted, attorneys submit written briefs --they are definitely not brief!

Oral arguments held two to three hours a day, five to six days per month from October through April

After arguments heard, justices hold conferences to discuss cases and vote These meetings limited to the nine justices

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Journey of a Lifetime

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Judicial Restraint and Judicial Activism

Concept of judicial restraint means decisions based on legal doctrines, prior decisions, and deference to elected officials

Judicial activists maintain judges should use powers to promote judges’ preferred social and political goals

Terms not limited to a particular ideology

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Figure 14-3

Measuring Judicial Activism

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Judgment and Argument

Voting outcome is called the judgment

Justices in the majority draft opinion setting out reasons for decision If all agree, decision is unanimous Justices who agree but for different

reasons than listed in the majority opinion may file a concurring opinion

Justices who disagree may file a dissenting opinion

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The Opinion The chief justice or most senior justice in

the majority decides which justice will write majority opinion

Draft opinion circulated among all justices for criticisms and suggestions Justices may choose to change initial

vote during this time

Dissent happening more frequently in recent years

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Strategies on the Court

Cases that reach the Supreme Court require difficult choices

Ideologies reflect values; some justices have tried to encourage appointment of like-minded colleagues Liberals value freedom over order

and equality over freedom Conservatives choose order over

freedom and freedom over equality Intellectual ability also affects debates38

The Chief Justice Forms docket Directs Court’s conferences May also serve these roles:

Generating solidarity within the group

Intellectual leadership Policy leadership

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Judicial Recruitment No formal requirements for

appointments to federal courts President nominates; Senate must

confirm Congress sets compensation:

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Chief Justice of the Supreme Court

$223,500

Associate Supreme Court justices

$213,900

Courts of Appeals justices $184,500

District judges $174,000

Magistrate-judges $160,080

State Judicial Selection

Governor appoints judges in more than half of the states Some must then face retention

elections

Partisan election Nonpartisan election Legislative election In some states, must be confirmed in

legislature41

The Appointment of Federal Judges

Appointments for life

Presidents look for judges who favor their policies

Office of White House Counsel helps identify candidates Justice Department assists with screening

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The “Advice and Consent”

of the Senate For district and appeals court, senator

from president’s party must approve Senatorial courtesy Or state’s House delegation, if no

senator from president’s party

Recent presidents have tried to appoint more women and minorities

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Senate Confirmation Senate Judiciary Committee conducts

hearings for each judicial nominee

Confirmations have become ideological battleground Hearings focus on judicial policy and

approach towards interpretations of the law

Filibusters sometimes used to prevent appointments

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The American Bar Association

By custom, ABA screens judicial candidates Well qualified Qualified Not qualified

George W. Bush did not use, believing group too liberal

President Obama restored use

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Recent Presidents and the Federal Judiciary

While recent presidents have appointed more diverse judiciary, ideology rules

Carter’s appointments most liberal

Reagan and George W. Bush-appointed judges most conservative

Ideological appointments easier when president’s party controls Senate

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Appointment to the Supreme Court

Attract extreme public scrutiny

Since 1900, six appointments have failed to be confirmed by Senate Most important factor: partisan politics

Most nominees have prior judicial experience

“Lame duck” presidents frequently unsuccessful

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Justice Elena Kagan Joining

the Supreme Court

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Ideological Shifts President George W. Bush nominated two

Supreme Court justices, John Roberts and Samuel Alito

As a result, ideology of court more conservative

Justice Kennedy now “swing vote”

President Obama nominated Sonia Sotomayor and Elena Kagan

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Figure 14-4

A More Representative Court

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The Consequences of Judicial Decisions

Judicial rulings small percentage of legal dispositions

Most cases end in plea bargain or no court judgment About 10 percent of civil and

criminal cases go to trial Many cases appealed to delay

day of reckoning

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Supreme Court Rulings:Implementation and Impact

Others must implement Supreme Court decisions

Ambiguous opinions affect implementation Desegregation and school prayer

Roe v. Wade generated (and continues to generate) heated response from public

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Public Opinion and the Supreme Court

Even though not elected, ideologically balanced Court and public sentiment eventually align in most cases One exception: school prayer

Poll in 2009 showed six in 10 Americans more likely to approve than disapprove of job Supreme Court doing

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The Courts and Models of Democracy

Majoritarian model: courts should follow the letter of the law and defer changes to elected representatives

Pluralist model: courts are policymaking branch of government and have legitimate right to consciously advance group interests Class action suits State court rulings based on either

federal law, state law, or both 54

The Right to Die Supreme Court rulings in Washington

v. Glucksberg and Vacco v. Quill that U.S. Constitution does not protect a right to assisted suicide States allowed to make own laws

Silence in Terry Schiavo case let stand lower court’s ruling

Other industrial democracies have decriminalized right to die

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