The American Legal System and the Courts

Chapter 10

In this chapter we will learn about

• The notion of law and the role that it plays in democratic society

• The constitutional basis for the American judicial system

• The dual system of state and federal courts in the United States

• The Supreme Court and the politics that surround and support it

• The relationship of citizens to courts in America

The role of law in democratic societies

• Provide security

• Provide predictability

• Resolve conflict– Through the courts

• Reflect and enforce conformity to society’s values

• Distribute benefits and rewards society has to offer and allocate the costs of those good things

Characteristics of theAmerican legal tradition

• Based on common law instead of civil law– Judges have discretion and follow stare decisis (past

precedents)

• Adversarial instead of inquisitorial – Reveal the truth through competing view points vs. “who did

it?”, judge as fact finder

• Litigious – 44 lawsuits per 1,000 people annually

Kinds of law

• Substantive laws vs. procedural laws– What you can/can’t do…vs. how it’s applied and enforced

• Criminal laws vs. civil laws– Prohibit actions harmful to society vs. interactions between individuals,

“torts”

• Constitutional laws– Stated in document, or past decisions on the meaning of it

• Statutory laws– Made by legislative bodies

• Administrative laws– bureaucracy

• Executive orders

The development of judicial review

• Hamilton and Federalist No. 78

– Least dangerous branch of government

– Court had power of neither the purse nor the sword

– Approved of judicial review because it would check the momentary passions of the people

• Constitution as true will of people

The development of judicial review, cont’d.

• Marbury v. Madison– “Midnight judges”

• John Marshall and the expansion of the power of the Supreme Court– 4th chief Justice, Federalist, Secretary of State under Adams

• Used sparingly to strike down federal law (158 times); more frequently to strike down state law (1,261 times)

Understanding jurisdiction

• Courts with original jurisdiction– U.S. district courts– State trial courts

• Courts with appellate jurisdiction– U.S. courts of appeals– State intermediate appellate courts– State supreme courts

• Court with both original and appellate jurisdiction– U.S. Supreme Court

U.S. district courts

• Lowest level of federal court system

• 94 district courts (each state has at least one)

• Hear both criminal and civil cases

• Juries responsible for verdict

U.S. courts of appeals

• Arranged into 12 circuits

• Solely appellate jurisdiction

• No new evidence or witnesses

• Panel of three judges makes ruling, not a jury

Selection of judges

States• Method varies by state

-Appointment

-Nonpartisan election

-Partisan election

Federal• All federal judges are

nominated by the president and confirmed by the Senate

• Senatorial courtesy is often invoked for lower level federal courts

The U.S. Supreme Court

• Nine justices– Has varied from 6 to 10

• Appointed by the president, confirmed by the Senate– Senate—”advice and consent”– No Senatorial courtesy for the high court

• Serve during good behavior– What is “good behavior”?

• Can be impeached

Four criteria considered forSupreme Court appointments

• Merit– ABA ratings, FBI background check– Reagan nominee Ginsburg (pot smoking)– Bush 41 nominee Thomas (sexual harassment case), plus lack of

judicial exp. and low ABA score

• Political ideology– Traditional liberal vs. conservative labels– Strict constructionist vs. judicial interpretivism

• These two ideas don’t necessarily fall on each side of the spectrum

• Reward– Sometimes friends, acquaintances, political allies

• Representation – demographics

Choosing which cases to hear

• Petitioning the Supreme Court

• The role of law clerks

• The Rule of Four

• Other influences, including whether U.S. government is a party in the case

How many cert petitions are considered?

• In recent terms, there have been between 8,000 and 10,000 cases appealed to the Supreme Court each year

• Out of approx. 9,000 petitions in the average year,

about 70-75 are granted (0.8%)

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: Cases Disposed in 2008-09

6,209 IFP Petitions

1,612 paid Petitions

77 cases decided after arguments

0.98% of all petitions!

7822 total Petitions

+

+ an additional 1,097 the didn’t get to yet

Cert: The Justices’ Role

With 9,000 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 13

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.

The Role of Law Clerks

• Heavy-duty research assistants

• 1972: “certpool”– Memo summarizing facts of case,

questions of law, recommended course of action

• Prepare bench memos for oral arguments

• Help draft opinions

Cert Pool

IN the pool NOT in the pool

Roberts

Scalia

Kennedy

Souter

Thomas

Ginsburg

Breyer

Stevens

Alito

=

4 clerks x 7 justices =

28 law clerks

read 9,000 petitions

Each clerk reads and writes a memo on 320 petitions/yr

4 clerks x 1 justice =

4 law clerks

read 9,000 petitions

Each clerk reads 2,250 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!

• 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

• A better case “in the pipeline”• Case is deemed “frivolous”

Cases are fungible!

• 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 less likely to be granted

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

Deciding cases

• Judicial activism vs. judicial restraint– The court as a policymaker vs stare decisis,

rejection of lawmaking

• External factors– Public opinion– Executive branch– Amicus briefs

Writing opinions

• Opinion– Chief justice, if in the majority, will assign this

opinion to someone in the majority– If chief justice is in the minority, senior-most justice

in the majority assigns the opinion

• Concurring opinion

• Dissenting opinion

The citizens and the courts

• Equal treatment by the criminal justice system

• Equal access to the civil justice system