The Judicial Branch

U.S. Chapter 6

The Highly Political Non-Political Courts

Americans generally feel that everyone should be treated equally by the lawAmericans like the idea of fair play and justice through the

court systemAmericans like the idea of separating law from politics

But, as you have learned laws are created through the political process

And, as we will cover in this chapter, politics plays a role in how judges are appointed and how they reach their decisions

Writing the Constitution: States concerned about giving up power to National Court System

Alexander Hamilton argued in Federalist #78: “…the judiciary is beyond comparison the weakest of the three departments of power.”

He argued the judiciary had:

1. Neither the power of the sword (Executive)

2. Nor the purse (Congress)

States (esp. NY) demanded

additional rights (Bill of Rights)

Judiciary and the Constitution – very brief

Article III Section 1: Supreme Court;

Congress can set up lower courts; hold office for “good behavior” (life)

Section 2: Jurisdiction (original and appellate)

Section 3: Treason

Judiciary Act of 1789 – set up District and Appellate courts, a national system of courts

Jurisdiction of Federal CourtsThe jurisdiction of a court is the types of cases it

can hearThe Supreme Court hears national casesOriginal jurisdiction are cases heard directly by the Supreme

Court (basically none today)Appellate jurisdiction are cases heard by a lower court

before being heard by the Supreme Court

In 1925 Congress passed a law to allow the Supreme Court to determine which cases it will hearIn practice, today, the Supreme Court only hears appellate

cases

Size of the Supreme Court

The constitution does not list the number of justices on the Supreme Court

Congress determines the number of justices on the Supreme CourtOriginally 6As country grew, increased to 10Then in controversy with Andrew Johnson decreased to 9Franklin Roosevelt attempted to increase the size of the

court in his court packing plan to intimidate the court to approve his New Deal programs

Organization of Federal Courts

Federal cases are first heard in Federal trial courts called District Courts

Los Angeles county is in the Central District of California

Intermediate federal U.S. Appellate Courts are called Circuits; each circuit includes several states

The state of California is in the9th Circuit

The final appellate court in the federal system is the US Supreme Court

The US Supreme Court hasthe final say about what laws

and the U.S. Constitution means

Organization of the Federal CourtsAbout 10 percent of cases in district court and federal agencies are accepted by higher courts for appeals

The U.S. Courts of Appeals are divided into 13 Judicial Circuits (11 circuits cover states, one

covers D.C. and one is a nationwide intermediate court of appeals)

Congress has also created other specialized courts to covers specific issues (Article I courts)

Circuit Court decisions can be appealed to the Supreme Court, but the Supreme Court hears very few cases, so Circuit Court decisions are often the final decision for that Circuit

Key Historical Development of the Supreme Court: Assertion of Judicial Review (Judiciary co-equal branch with Congress & Executive)

In Marbury v. Madison (1803) the Court asserted the power of judicial review – the Court claimed the power to determine whether legislation passed by Congress or actions by Executive are constitutional

Based on the supremacy clause the Supreme Court clearly has the power to determine if state laws are constitutional (i.e. the Supreme Court has the power of judicial review over state laws in those areas where the national government has power)

Development of Judicial ReviewThe use of Judicial Review to strike down laws

passed by Congress developed slowly The Supreme Court did not strike down a law passed

by Congress between Marbury in 1803 and the Dred Scott decision in 1857

Judicial review was not fully established the way we think of it today until the late 1800’s

The Dred Scott decision said that African-Americans could not be treated as people before the law – inflamed passions leading up to the Civil War

2008-2009

Types of Cases Supreme Court is likely to hear

Out of 7,000 requests Supreme Court usually hears less than 100Likely to hear cases that raise major

constitutional issueIf lower court overturned Supreme Court opinionIf two lower courts or circuits reach a different

outcome on the same issueIf the Solicitor General (lawyer representing the

US government) appeals a case

Political Influences on the Court

Presidents have influence through nomination of all federal judgesBut, presidents can be surprised:

Eisenhower unhappy with WarrenBlackmun (appointed by Nixon) was

conservative to start with, but was most liberal judge when retired

Souter was more liberal than Bush, Sr hopedFDR threat to pack court influenced the

court’s decisions

Political Influences on the Court

Senate can influence the courtSenate approves or rejects nominations, minority

party can filibusterSenators are influential on District Court

appointments to their states (“Senatorial Courtesy”)Senators from President’s party have a lot of influence

over federal court appointments in their stateCongress can impeach federal judges, but very

rare; done for criminal misbehavior, not political

Interest groups lobby President and Senate on appointments of judges, especially Supreme Court

How the Supreme Court Decides CasesThe Supreme Court produces a written decision

for each caseThis always includes a majority opinion, which

states the interpretation of the majority of the court on the issue

Cases can also includeConcurring opinion(s), which agree with the outcome of

the majority opinion, but follow different reasoning to reach that outcome

Dissenting opinion(s), which disagree with the majority opinion, sometimes vigorously

How the Supreme Court Decides CasesSupreme Court opinions (whether majority, concurring

or dissenting) all look pretty much the sameThey usually will cite the Constitution and a number of previous

Supreme Court decisions in a way that supports the opinion writers reasoning

As we know the Constitution is purposefully vague and can support many different positions, so what matters is how the Constitution is interpreted

Also, when the Constitution is clear on an issue, the lower courts will decide the case correctly and issue will not rise to the Supreme Court

Therefore the Supreme Court get’s the tough cases

How the Supreme Court Decides CasesWhen it comes to interpreting the Constitution the

concepts we learned in Chapter 2 are useful (review these concepts from Chapter 2):Loose Construction and Living Constitution (liberal): the

meaning of the constitution should evolve as new needs ariseStrict Construction and Originalists (conservative): the

meaning of the constitution should be as close to what the founders intended as possible

Judicial Activism: Court should stand up to other two branches if they fail to protect rights

Judicial Restraint: Court should tend towards narrow interpretations, rather than challenge the other two branches

How the Supreme Court Decides CasesSupreme Court opinions and precedent

Precedent is the concept that the courts should follow the same reasoning in similar casesTherefore if there is a case similar to the one before the

Supreme Court, then they should make the same decision in this case

But, when precedent is clear on an issue, the lower courts will decide the case correctly and issue will not rise to the Supreme Court

Again, the cases that the Supreme Court hears are the tough cases where precedent is not obvious

How the Supreme Court Decides CasesWould be nice if reading the Constitution or

following precedent was enough to decide Supreme Court cases, but it rarely is

Other factors come into play, particularly a judges political and personal experiences

According to one study of the Supreme Court about 90% of the time party and ideology will explain how a Supreme Court justice will vote

This is why Presidents, Senators and interest groups work hard to influence the individuals who are appointed to the Court

Roberts Court – from 2005 to present

John Roberts is the Chief JusticeThe other 8 are called Associate JusticesCourt has 4 conservatives

Scalia, Thomas, Alito, Roberts

And 4 liberalsKagan, Ginsberg, Sotomayor, Breyer

Justice Kennedy is the one in the middleA moderate conservativeHis opinion is important in determining the outcome of

many cases

The Supreme Court is moving, slowly, in a more conservative direction

Supreme Court Process

Usually in session October 1 to June 30The “rule of four”

If 4 or more justices agree a case will be heard

Clerks assist with requests and writing decisionsServing as a clerk to Supreme Court is one of

most prestigious positions any law school graduate can get

Supreme Court ProcessWritten Briefs

The Court requests written material from both sides in the lawsuit

The Court may allow interested parties to submit written material, called amicus curiae briefs (friend of the court briefs)

Oral ArgumentsAfter studying the written material the nine

justices listen to arguments from the lawyers on each side of a case (usually 30 minutes each) and ask the lawyers questions

Supreme Court Process

Judicial Conference (in secret)The 9 justices usually meet on Friday to

discuss and deliberate over the cases they heard in oral arguments earlier in the week

They take a tentative vote on each case If the Chief Justice is in the majority he or she

assigns a justice to write the opinion, if not, the senior justice in the majority assigns a justice to write the opinion

Supreme Court ProcessOpinion Writing (in secret)

This stage is like a competitive writing contestThe justice assigned to write the majority opinion tries to write

an opinion that will attract a majorityOther justices may also write opinions to try and sway justices

to their point of view (to try and create a majority opinion with a different outcome or reasoning)All the justices writing opinions send them around to their colleagues

When a majority of justices join one opinion that becomes the majority opinion of the Court Usually the majority opinion is written by the person who was

assigned to write the decision, but not always

Supreme Court ProcessAnnouncement

The justice who wrote the majority opinion then reads the opinion in open court

Usually justices who write dissenting opinions do not read their opinions afterwards, but if the justice is particularly unhappy with the majority decision a dissenting justice my read their dissent

EnforcementIf the Supreme Court overturns a lower court ruling then they

state that the case is remanded back to the lower courtThis means the lower court should rehear the case taking into

account the new decision by the Supreme Court

Nation of Laws AND PeopleThe Supreme Court has developed into an

institution with a great deal of power in our political system because the law is so important

Still, if the Supreme Court strays too far from public opinion its decisions may not be enforcedThe Supreme Court cannot overwhelm a solid majority

of the peopleThe Supreme Court relies on the other branches,

especially the Executive branch to carry out its decisions

Nation of Laws AND PeopleLincoln was able to ignore the Supreme Court’s

decision in Dred Scott because majority opinion opposed the Court’s decision

Andrew Jackson was able to ignore the Supreme Court’s decision protecting the Cherokee, leading to 1000’s of deathsJackson had popular support to carry this out

Nixon agreed to turn over the Watergate tapes, even when they showed him engaging in illegal behaviorWhen public backs Court, can bring down President

Nation of Laws AND People

These examples show that even though the Federal court system, with life appointments, may seem like an anti-democratic part of the government, it still must respect popular opinion to some extent