The Judicial Branch

The Federal and State Courts

How Many Justices? (9)

Justice Oliver Wendel Holmes retired at 91

Justice Stevens just retired at 90

Justices are appointed for life during good behavior

• Process: • The President nominated the Justices• The Senate Judiciary committee holds a

confirmation hearing. It can vote to recommend or reject the nominee

• The full Senate votes to confirm or reject if the committee recommends the Justice for a vote.

• Senate responsibility is Advice and Consent

The Judiciary

Sources of American Law

• 1) The Anglo American Common Law.• 2) The U.S. and State Constitutions• 3) Congressional Statutes

Some Distinctions

• 1) Anglo American Common Law is different from the Continental Civil Law

• 2) Civil case and criminal cases

How do cases get to the Supreme Court?

• 1) Original Jurisdiction (3%)• 2) Appeal (97%)

Do we have the right to appeal to the Supreme Court???

50%50%

1 2

1. Yes, it is our civil right as Americans

2. NO, the Court controls its docket

APPEALS

• 10,000 cased are appealed to the Supreme Court only 70-120 cased are decided every year.

• There are 2 kinds of appeals• Writ of appeal (automatic appeal the court has

no choice but take the case. • Writ of Certiorari-the Court decides if to take the

appeal or not.

Most cases are certiorari

Rule of 4. 4 Justices out of 9 need to vote in a committee to hear a case. (not a majority).

What are the chances for a case to be heard?

• 1) If it is a major constitutional philosophical question. (like segregation).

• 2) If two or more circuit courts of appeal disagree and the court needs to make one law for the whole country.

• 3) If several state supreme courts disagree over major issues and the US Supreme Court needs to develop national law.

Deciding to decide

• 1) The rule of 4. 4 out of 9 justices must vote to agree to hear a case

• 2) The rule of 5. In order to win the case 5/9 justices must vote.

• Decision is the majority opinion. It is the law of the land. Like legislation, a Supreme Court Decision is the law.

• The minority opinion (those who lost) called “Dissent”. What is the purpose of dissent.?

Appeals

• The typical federal case would start with the Federal district court- a court of original jurisdiction.

Criminal cases: There will be a grand jury that would take testimony and decide if there is enough evidence for a trial (indictment). In the actual trial there will be a jury and a 3 judges panel that would decide the case

Trial results

• A unanimous jury can deliver a guilty verdict. • The threshold test is “beyond a reasonable

doubt”• In a civil trial, there is no guilty or not guilty

verdict. The verdict is Liable or not liable. • In case of liability, the threshold is by

“preponderance of the evidence”. It requires less than a unanimous verdict.

What is the difference?

• Preponderance means majority or controlling. Thus, liability does not have to be proven. It is just most likely.

• Beyond reasonable doubt is not the same as beyond any doubts. Circumstantial evidence that do not have a direct witness are okay too.

Appeal

• If you are granted an appeal, it can be on one of two philosophical evidence:

• 1) There was a violation of procedural due process: (4th,5th, 6th,7th) amendments.

• It means that the trial was not fair. • 2) There was a violation of substantive due process:

It means that the law was not fair. • The appeal process does not question the verdict of

the jury or finding of facts. It is mostly philosophical.

appeal

Federal District court

Federal appeals court 3 judge

panel

Federal appeals court En-Bunc

Federal appeals court district of

Colombia

United States Supreme Court

Appeal from the states

State Supreme Court

Federal Appeals Court En-Banc

District of Colombia

appeals court

U.S Supreme Court

Judicial Politics

• President nominates Judges and Justices: • To the Federal Supreme Court• To All 14 appeals courts• To All 94 Federal Districts Courts• All together more than 1000 judges. • But they have a life tenure so Presidents only

appoints judges to open positions.

Judicial Politics

• Senatorial Courtesy.• Geographic balance• Ethnic balance ( Catholic, Black, Jewish, Latin

Seat)• Gender Balance ( How many women?) • Ideological balance ( conservative, liberal,

originalist)

Judicial politics

• Confirmation hearing: • The role of Special Interests:• The ABA American Bar Association• Rating: well qualified, qualified, Unqualified

Special Interest groups

• NAACP• MALDEF• NOW• LABOR UNIONS• People with disability• Gay organizations• Interested parties

Congress-Courts

• Congress controls the size of the Supreme Court and all the federal courts. (How many judges, how many courts.

• Congress controls the salary of judges. • Congress can overturn courts decision by

statute or by amendments. • The Senate can reject presidential

nominations

Jurisprudence

• Jurisprudence is the philosophy and/or ideology which the judges apply when they make a decision. ( you thought they were impartial or fair, ha ha ha ha ha ha )

Types of Jurisprudence

• Judicial activism: The Constitution is a living document. Every generation can interpret it to make sense for current needs and social changes.

• Judicial restraint: It is Congress’s job to make public policies. Judges should avoid judicial review. They should apply the law and not make law. ( don’t second guess Congress and don’t declare laws unconstitutional.

Continue:

• Original intent: Originalists are very conservative. They believe that the Constitution is an original contract from 200 years ago and must be faithfully interpreted based on the original intent of the founding fathers.

• Judicial minimalism: Judges should make decisions Narrow and Shallow. (no big decisions)

Continue

• Historical vs Sociological jurisprudence• Historical: Judges should only rely on previous

cases: Stare Decisis- let the decision stand. Based on Precedent. ( So Plessy v. Fergusson was the precedent and should stay)

• Sociological jurisprudence: Judges should based decision based on social science evidence ( like the doll experiment)

Jurisdiction

• The right of Judges to make decision. What is the extent of judges authority?

• Justices except cased the fall under the US Constitution and federal laws. However, there are limits:

• 11th amendment, the Political question doctrine, judicial review, foreign policy.

Myths:

• The Surprised President• Independent Supreme Court• The defenders of minorities• The powerful Supreme Court

State Supreme Courts: each state has multi-level court systemStat

e supre

me CourtState appeals

Court

Superior courtsMunicipal Courts

Other restrictions on Courts

• The power of courts is passive: Courts can not invite cases. They have to wait for cases.

• Courts can not accept cases born of Collusion. When it’s a fake case if both sides are on the same side.

• Courts can not take theoretical cases. There must be real victims and real parties for the case. They will not review a law until somebody actually broke the law.

• The END