• 1. Dual Court SystemDual Court System – National judiciary has more than 120 courts and the 50 States have thousands of courts.

• 2. Inferior courtsInferior courts – lower federal courts beneath the Supreme Court.• 3. JurisdictionJurisdiction – authority of a court to hear a case.• 4. Exclusive jurisdictionExclusive jurisdiction – cases that can be heard only in the federal courts.• 5. Concurrent jurisdictionConcurrent jurisdiction – cases that can be tried in either federal or

State courts. [Like disputes among citizens of different States]• 6. PlaintiffPlaintiff – the person who files suit.• 7. DefendantDefendant – the person who the complaint is against.• 8. Original jurisdictionOriginal jurisdiction – a court in which a case if first heard.• 9. Appellate jurisdictionAppellate jurisdiction – a court that hears a case on appeal.• 10. DocketDocket – a court’s list of cases to be heard.• 11. Judicial ReviewJudicial Review – power to decide the constitutionality of an act of

government, whether executive, legislative, or judicial.• 12. Marbury v. MadisonMarbury v. Madison – case that established judicial review of the

Supreme Court.• 13. Writ of CertiorariWrit of Certiorari – [“to be made more certain”] order by the Supreme

Court directing a lower court to send up the record in a given case for its review.

• 14. Certificate Certificate – when a lower court asks the Court to certify a specific question when it is not sure about the procedure or rule of law that should apply in the case.

• 15. BriefBrief – written documents filed with the Court before oral arguments begin.

• 16. Amicus curiaeAmicus curiae – [“friend of the court] briefs filed by persons or groups who are not actual parties to a case but who have a substantial interests in its outcome. [things like abortion or affirmative action]

• 17. Majority opinionMajority opinion – Opinion of the Court.• 18. Dissenting opinionDissenting opinion – written by those justices

who do not agree with the Court’s majority decision.• 19. PrecedentsPrecedents – examples to be followed in similar cases

as they arise in the lower courts or reach the Supreme Court.• 20. Concurring opinionConcurring opinion – adding or emphasizing a point that

was not made in the majority opinion.

35 seats35 seatsare forare for

journalistsjournalists

250 seats will be250 seats will beavailable to theavailable to thepublic, althoughpublic, although

most have alreadymost have alreadybeen given tobeen given to

congress, VIPs &congress, VIPs &special guestsspecial guests

40 seats are40 seats arefor guests for guests

of theof the9 justices9 justices

About 75 seats areAbout 75 seats are

for lawyers who havefor lawyers who have

practiced before thepracticed before the

court.court.

Outside the chamber,Outside the chamber,

there are up to 80there are up to 80

seats for members ofseats for members of

the Court bar. Anthe Court bar. An

additional 84 seatsadditional 84 seats

will be behind a metalwill be behind a metal

screen on 1 side ofscreen on 1 side of

the chamber forthe chamber for

journalists.journalists.

• The federal judiciary is the guardian of the constitutionguardian of the constitution and is the ultimate protector of the rights of individual citizensprotector of the rights of individual citizens.

• It is the judiciaryjudiciary that says what the law issays what the law is. They interpret and apply the lawinterpret and apply the law.• There are two kinds of courtstwo kinds of courts.• 1. Federal:Federal: 94 Federal trial courts are called District CourtsDistrict Courts; a person may

appeal a verdict of that court to one of the 12 Circuit Courts of Appeals12 Circuit Courts of Appeals, and then to the Supreme CourtSupreme Court. The federal system includes the Tax Court.

• 2. State:State: States have thousands of trial courtsthousands of trial courts. Texas has 2,500Texas has 2,500, ranging from county courts to State Supreme Courtscounty courts to State Supreme Courts. State courts deal with specific areasspecific areas of the law, such as domestic relationsdomestic relations, traffic and criminal traffic and criminal offensesoffenses. Unless constitutional issues are involvedconstitutional issues are involved, a State’s supreme State’s supreme court is the final appealcourt is the final appeal.

• Chapter Objectives:Chapter Objectives:• 1. The basic role of the judiciaryrole of the judiciary [system of national courts].• 2. The structure and function of the courtsstructure and function of the courts.• 3. The role of the Supreme Courtrole of the Supreme Court as the highest court and the

significance of judicialsignificance of judicial review in our system.• 4. The roles of special courtsroles of special courts [like the Claims court].• 5. Selection of federal judgesSelection of federal judges.

11

• Section Focus:Section Focus:• 1. How the national court system was establishednational court system was established.• 2. What two types of cases the federal courts decidetwo types of cases the federal courts decide.• The ConstitutionConstitution [Article III], created the national created the national

judiciary judiciary in a single sentence:– The judicial power of the United states shall be vested in one The judicial power of the United states shall be vested in one

Supreme Court, and in such inferior courts as the Congress may Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.from time to time ordain and establish.

Andrew HamiltonAndrew Hamilton thought that even with judicial review, the judiciary would be the weakest of the three branchesweakest of the three branches because it lacked the strengthlacked the strength of the sword sword or the purse purse. They had neither FORCEFORCE nor WILLWILL, only judgmentjudgment. John John MarshallMarshall was the “Babe Ruth “Babe Ruth of theof the Supreme Court.” Supreme Court.”

A DualDual Court System Court System – over 120 federal courts120 federal courts and the State courts.

National Court SystemNational Court System – the Supreme Court and over 100 federal courts.

State Court SystemState Court System – each of the 50 States50 States has its own system of courts running into the thousandsthousands.

22

I. THE NATURE OF THE JUDICIAL SYSTEMTHE NATURE OF THE JUDICIAL SYSTEM • The judicial system in the United States is an adversarial…provide an arena for two parties to bring their conflict before an impartial arbiter (a judge). • The system is based on the theory that justice will emerge out of the struggle justice will emerge out of the struggle between two contending points of viewbetween two contending points of view. • In reality, most cases never reach trialmost cases never reach trial because they are settled by agreements reached out of court. • There are two basic kinds of cases, criminalcriminal law and civilcivil law.

• In criminal lawcriminal law, an individual is charged with violating a specific lawviolating a specific law; criminal law provides punishment for crimes against society (or public order). • Civil lawCivil law does not involve a charge of criminality; instead, it concerns a dispute dispute between two partiesbetween two parties and defines relationships between them. between them. • TheThe vast majorityvast majority of cases (both civil and criminal) involveinvolve state state lawlaw and are tried in state tried in state courtscourts.

Civil Court

Criminal Court

II. THE STRUCTURE OF THE FEDERAL THE STRUCTURE OF THE FEDERAL JUDICIAL SYSTEMJUDICIAL SYSTEM

• The Constitution is vague about the Constitution is vague about the federal federal court system court system: aside from specifying that there will be a Supreme Court, the Constitution left it to Congress' discretion to establish lower federal courts of general jurisdiction.

• In the Judiciary Act of 1789Judiciary Act of 1789, Congress created a system of constitutional courts (Article III courts) on the basis of this constitutional provision.

• In addition to the Supreme Court, there are 12 federal courts of appeal12 federal courts of appeal, , 94 94 federal district courtsfederal district courts, and thousands of state and local courtsthousands of state and local courts..

• Congress has also established some legislative courtslegislative courts (such as the Court of Court of Military Appeals, the Court of ClaimsMilitary Appeals, the Court of Claims, and the Tax Courtthe Tax Court) for specialized purposes, based on Article I of the Constitution.

• These Article I courts are staffed by judges who have fixed terms of office and who lack the protections of judges on constitutional courts against removal or salary reductions.

A DUAL COURT SYSTEM: • There are two court systemstwo court systems in the US:

1. 120 federal courts2. The 50 states have courts that number in

the thousands.• State courts hear most of the cases (federalism)

• Two Kinds of Federal Courts:1. ConstitutionalConstitutional Courts: Federal Courts formed

under Article 3 of the Constitution to exercise the Judicial Power of the United States. They are the Supreme Court, courts of appeals, district courts, & U.S. Court of International Trade.

2. Special Special Courts: Do not exercise broad “Judicial“Judicial Power of the United States”.Power of the United States”. They were created out of some expressed power given to them by congress in Article 1 of the Constitution. Hear a much narrower range of cases.

U.S. Courts of Federal Claims, U.S. Courts of U.S. Courts of Federal Claims, U.S. Courts of Appeals for the Appeals for the Armed Forces, U.S. Courts of Armed Forces, U.S. Courts of Appeals for Veterans Claims, Courts of the Appeals for Veterans Claims, Courts of the District of Columbia, Territorial Courts, U.S. District of Columbia, Territorial Courts, U.S. Tax Court [hears tax disputes].Tax Court [hears tax disputes].

THE CONSTITUTION COURTS

THE SPECIAL COURTS

94 DistrictCourts

12 US Courts of Appeals

US Court ofInternational

Trade

US Courts of Appeals for the

Federal Circuit

US Courtsof Federal

Claims

Courtsof the District of Columbia

US Courtsof Appeals for

the Armed Forces

US Courtsof Appeals for

Veterans Claims

US Tax Court

TerritorialCourts

THE SUPREME COURT

33

44

Participants in the judicial systemParticipants in the judicial system

• Federal judges are restricted by the Constitution to deciding cases or controversies.

• Courts may decide only justiciable disputes, which means that conflicts must be capable of being settled by capable of being settled by legal methodslegal methods.

• Every case is a dispute between a plaintiff and a defendant-the former bringing some charge against the latter.

• Litigants (the plaintiffplaintiff and the defendantdefendant) must have standing to sue, which means they must have a serious interest in a case

• In recent years, there has been some broadening of the concept of standing to sue.

• Class action suits Class action suits permit a small number of people to sue on behalf of all other people similarly situated (for example, a suit on behalf of all credit card holders of an oil company).

THE FEDERAL COURT SYSTEM:• Under Articles of Confederation (1781-1789) there were no federal courts.• Laws were interpreted by States… and were often interpreted differently.• Often, decisions in one state court would be ignored by another.• Alexander Hamilton in Federalist 22Federalist 22, stated the “want of a judiciary power [as a] circumstance which crowns the defects of the Constitution.”• He also said, “Laws are a dead letter without “Laws are a dead letter without courts to expound and define their true courts to expound and define their true meaning and operation.”meaning and operation.”• The Constitution creates a national judiciary for the US in one sentence: “The judicial Power “The judicial Power of the United States shall be vested in one of the United States shall be vested in one Supreme Court, and in such Supreme Court, and in such inferiorinferior courts as courts as the congress may fromthe congress may from time to time ordain and time to time ordain and establish.” They establish.” They are beneath theare beneath the Supreme Court. Supreme Court.• Congress also has the expressed power “to “to constitute Tribunals inferior to the supreme constitute Tribunals inferior to the supreme Court.”Court.” (Art. 1, Sec. 8 Cl. 9.

ALEXANDER HAMILTONALEXANDER HAMILTON

44

• The constitutional courts hear most of the cases tried in federal courts

• They have jurisdictionjurisdiction (the authority of a court to hear a authority of a court to hear a casecase) over most federal cases

• Article III, section 2 says federal courts may hear a case because of either:1. the subject matter2. parties involved in the case• a. an officer or agency of the U.S.• b. an official [ambassador, consul] of a foreign

government.• c. a State suing another State or citizen.• d. a citizen of one State suing a citizen of another.• e. an American suing a foreign government or one of

its subjects. • All cases not heard by the federal courts are heard by the

State courts.

Section Focus:Section Focus:1.1. What is the What is the jurisdiction of the federal courtsjurisdiction of the federal courts??2.2. What are the What are the roles of other constitutional courtsroles of other constitutional courts??

66

Courts have different types of jurisdiction depending on whether or not (1) they share power to hear case with State courts and (2) they are the first court to hear the case.EXCLUSIVE & CONCURRENT JURISDICTIONEXCLUSIVE & CONCURRENT JURISDICTION: • In some cases, federal courts have exclusiveexclusive jurisdiction jurisdiction (can only be heard in federal court).• ExamplesExamples: cases involving ambassadors, foreign government officials, citizen of one state suing one in another, matter of admiralty or maritime law, interpretation of Constitution, those charged with federal crimes, copyright laws, etc.• There are also concurrentconcurrent cases cases (tried in either State or federal courtState or federal court). Most common example is disputes involving citizens from different states (known as cases in diverse citizenship).• CivilCivil Law Law –dispute between 2 or more individuals2 or more individuals or between individuals individuals & the& the G G.• Congress provides that cases of diverse citizenship can only be heard in federal court if the amount in dispute is more than $75,000…

• the plaintiff plaintiff (one who files suit) may choose the proper state federal court.• under certain circumstances, the defendantdefendant (one who complaint is against) can have case moved to federal court in some cases.

Al Capone: Convicted of Tax Evasion

77

88

99

1010

1111

• A court that first hears a casecourt that first hears a case is said to have original original jurisdictionjurisdiction..• A court that hears a case from a lower court has appellateappellate jurisdiction jurisdiction.. TheThe appellate court can uphold, uphold, overrule, or modify the decision of a overrule, or modify the decision of a lower courtlower court. In the federal court system, the 94 district courts94 district courts have have original original jurisdictionjurisdiction, the Courts of Appeal Courts of Appeal have appellate jurisdictionhave appellate jurisdiction, and the Supreme Court can exercise bothSupreme Court can exercise both.

Federal JurisdictionFederal Jurisdiction

State JurisdictionState Jurisdiction

Concurrent Jurisdiction

1212

1313

NOT CONFIRMEDJudge Robert Bork

1987

CONFIRMEDJudge Sonia Sotomayer

2009

• Constitution lays out how judges are chosen, their terms, and pay… it says that the Presidentthe President, “, “shall nominate, and shall nominate, and by and with advice and consent of the by and with advice and consent of the Senate the judges of the supreme CourtSenate the judges of the supreme Court””• This has become the process for all federal judges.• The president may feel free to name anyone to the federal bench anyone the senate will confirm (Senatorial privilegeSenatorial privilege plays a big role - president almost always chooses someone recommended by a senator from their own party from state involved).• Most judges are drawn from leading attorney’s, legal scholars/law school professors, former members of Congress, and State court judges• Obviously, the president takes political matters into considerationpolitical matters into consideration when appointing judicial selections.

• From early in U.S. history, President’s have most often chosen judges from their own political parties • Because federal judges have lifetime appointmentslifetime appointments, (see Federalist # 78) they select judges who reflect their own legal, political, economic and social views• Judicial activismJudicial activism and Judicial restraintJudicial restraint play a part in selection - especially on the Supreme Court!

• Judicial activistsJudicial activists - believe that judges should use his/her power to make bold policy decisions to promote a social end.• Judicial restraintJudicial restraint - believe that judges should defer actions to executive and legislative branch (except when something is clearly unconstitutional). Belief comes from the idea that the president and congress are accountable because they are elected. Judges are not accountable because they are not elected.

• Judges are chosen by the presidentJudges are chosen by the president in consultation with his Attorney General, important Senators, the legal profession (American Bar Association) Committee of Federal Judiciary- ABA), and influential members of the president’s political party.

• Article III, Section 1 of the Constitution reads in part, “The judges, both of the Supreme Court and the inferior courts , shall hold their offices during good behavior.

• This means that federal judges are appointed for lifefederal judges are appointed for life to their positions (until they die, resign, retire, or are removed by impeachment) This is intended to ensure judicial independence!• 13 judges have been impeached13 judges have been impeached… of them, 7 have been 7 have been removed by the Senateremoved by the Senate (No Supreme Court Justice has ever been removed from office, although Samuel ChaseSamuel Chase was tried

but not convicted by the Senate in 1805).• 3 most recent:

1. Harry E. ClaiborneHarry E. Claiborne, District Ct. of NV for filing false income tax returns (1986).

2. Alcee HastingsAlcee Hastings, District Ct. FL, for bribery and false testimony (1989)… he is currently a US Congressmen and up for Chairman of the Intelligence Committee!

3. Walter NixonWalter Nixon, District Ct. Of MS, for perjury (1989).• Life Terms: Constitutional Courts (Supreme, Court of

Appeals, International Trade Special Courts: (15 years) Federal Claims, Appeals for Armed Forces, Appeals for Veterans Affairs, Tax Court.

• Special Courts: (8 years) DC District Court of Appeals.• Special Courts: (4 years) Superior Court Judges.

• Pay is determined by Congress, get a generousgenerous retirement.. May retireMay retire at at 70 if serve 10 years… may get full pension at 65 70 if serve 10 years… may get full pension at 65 if serve 15 yearsif serve 15 years… Chief Justice may called back to temporary duty in lower federal court.

Rep. Alcee Hastings, (D-FL)

IMPEACHED IMPEACHED

& &

REMOVED REMOVED

(as a federal (as a federal

judge)judge)

As of 2009:

Federal trial judges: $174,000 Appellate judges: $184,500 Associate Supreme Court: $ 213,900 Chief justice $ 223,500

All were permitted to earn an additional $21,000 a year for teaching.

http://www.thecapitol.net/FAQ/payandperqs.htm

•Judges primarily deal with deciding cases… administrative matters of the court are performed by clerks, deputy clerks, bailiffs, court reporters, clerks, deputy clerks, bailiffs, court reporters, stenographers, and other court personnelstenographers, and other court personnel.• Judges of the 94 District Courts appoint at least at least one magistrate one magistrate who deal with legal matters that judges once dealt with (issue warrants, hear evidence and decide whether a grad jury should be called, set bail, and even try some cases that are minor).• Each federal judicial district has at least one at least one bankruptcy judgebankruptcy judge who are appointed for 14 year terms by federal court of appeals judges and hear an array of bankruptcy cases.• The president and Senate appoint a U.S. AttorneyU.S. Attorney and their deputies to prosecute cases (4 year term). They work with the FBI and represent the US in all civil cases.• The President and Senate also select a U.S. MarshalU.S. Marshal (four year term) to serve in district courts who make arrests in federal criminal courts, hold accused in custody, secure jurors, serve legal papers, keep order in courts, and execute court orders and decisions. They respond to riots, mob violence, civil disturbances and terrorist attacks.

Johnny Sutton

United States

Attorney

Western District of

Texas

Supreme Court Clerks, 2004-2005

The 94 DISTRICT COURTSThe 94 DISTRICT COURTS: • 642 judges handle more than 300,000 cases per year. • DistrictDistrict courts are the “workhorses” as they handle 80% of federal caseload). • Created .by .Judiciary. Act. Of. 1789.

FEDERAL JUDICIAL DISTRICTSFEDERAL JUDICIAL DISTRICTS: • The fifty States are divided into 89 federal judicial districts and other federal courts for Washington, DC, Puerto Rico, the Virgin Islands, Guam, and the Northern Marinara Islands.• Some States are divided into two or more district because of size & caseload.• There are at least 2 judges assigned to each district, but some have several (U.S. Judicial District for Southern NY has 28 judges).

1414

DISTRICT COURT JURISDICTION: • District courts have “original jurisdictionoriginal jurisdiction” over most cases heard in federal court (exceptions: heard by US Supreme Court, U.S. Court of International Trade, or by one of the special courts).• Hear wide rage of criminal casescriminal cases (defendant is accused of committing federal crime) and civil casescivil cases (non-criminal matter, such as dispute over terms of a contract or patent infringement).• Criminal case examplesCriminal case examples: May hear cases involving bank robbery, mail fraud, counterfeiting, mail fraud, tax evasion…• Civil case examplesCivil case examples: bankruptcy, tax, labor relations, public lands, civil rights, etc…• Most cases decided in district courts are final, but they can be appealed to the circuit court, & occasional straight to the Supreme Court.

• The Courts ofCourts of AppealsAppeals were created by Congress in 1891. They were established as “gatekeepers”“gatekeepers” to relieve the burden on the Supreme Court (at the time, the Supreme Court was 3 years behind its docketdocket)• There are now 12 Courts of Appeals12 Courts of Appeals (12 judicial circuits, including the DC circuit - one court of appeals per circuit) [The 12 are shown on the next slide.]

APPELLATE COURT JUDGESAPPELLATE COURT JUDGES: • 179 circuit judges sit on these appellate courts. In addition, a Justice of the Supreme Court is assigned to each of them. • The 5th Circuit (TX, LA, MS) are assigned to Justice Antonin G. Scalia. These justices hold meeting with the circuit judges in a number of cities

APPELLATE COURT JURISDICTIONAPPELLATE COURT JURISDICTION:• Courts of appeal only have appellateappellate jurisdiction (hearing cases appealed from lower federal courts)• Most come from district courts, but could also come the U.S. Tax Court or the territorial courts• Also hear appeals from federal regulatory agencies (FTC, NLRB, and the NRC).• Handle about 55,000 cases per year and Their decision are final unless Supreme Court takes a case on appeal

1515

1616

Puerto RicoPuerto Rico Virgin IslandsVirgin Islands

Federal District CourtFederal District CourtCaseload, 1900-2000Caseload, 1900-2000

Federal Appeals CourtFederal Appeals CourtCaseload, 1900-2000Caseload, 1900-2000

*Total civil and criminal cases*Total civil and criminal casesJudicial Circuit - Judicial Circuit - District Court RegionsDistrict Court Regions

Congress created 2 other Article III courts… THE COURT OF THE COURT OF INTERNATIONALINTERNATIONAL TRADETRADE::• Created in 1890 as the Board of International Appraisers… then the Court of Customs (1926)… and The US Court of International Trade (1980).• Has nine judgesnine judges, one of which is chief judge.• Hears cases arising from tariff and tradetariff and trade issues issues..• 3 judges sit on a trial and hear cases at major ports including New Orleans, Boston, New York, and San Francisco.• Cases may be appealed to the Court of Appeals for the Federal Circuit.

US Court of International Trade, New York, NY

1717

The Court of Appeals for the Federal CircuitThe Court of Appeals for the Federal Circuit• Created in 1982 to centralize and speed up the centralize and speed up the handling of appealshandling of appeals in civil cases.• Unlike other courts (except Supreme Court) it has nationwide jurisdictionnationwide jurisdiction.• Hears cases from the U.S. Court of International Tradecases from the U.S. Court of International Trade, and others from the U.S. Court of Federal Claims and the U.S. Court of Appeals for Veterans Claims.• Also hears patent, trade, and copyright caseshears patent, trade, and copyright cases from the 94 district courts (and can make administrative rulings by the International Trade Commission, the Patent and Trademark Office, and Merit Systems Protection Board.• There are 12 members12 members who usually sit on panels of three. • Most cases are heard in Washington, D.C. And on rare occasions decisions are appealed to the Supreme Court.

Special CourtsSpecial Courts were create by Congress to hear certain cases involving the expressed powers of Congress. These courts were not created under Article III, so they do not to express broad judicial power - they have very narrow jurisdictionnarrow jurisdiction.

THE COURT OF FEDERAL CLAIMSTHE COURT OF FEDERAL CLAIMS: : • Under no circumstances can the government be sued… unless Congress grants it’s consent to being sued.• The government can be taken to court only in cases that Congress has declared is open to suit.• Until 1855, a person could only get redress (satisfaction of a claim) through an act of Congress.• In 1855, the Congress set up the Court of Claims to hear such pleas… In 1993, it became know as the U.S. Court of Federal Claims

• It has 16 judges (15 year terms)• Hears cases throughout country• If a claim for damages are upheld, Congress must appropriate the money.• Cases may be appealed the U.S. Court of Appeals for the Federal Circuit.

Captain William Calley

•THE COURTTHE COURT OF OF APPEALS FOR THE ARMED FORCES:APPEALS FOR THE ARMED FORCES:• In 1789, Congress created a system of military courts for all of the armed serves. • These military courts (court martial’s) serve the unique disciplinary needs of the armed forces and are not part of the federal court system.• All judges, prosecutors, defense attorneys, court reporters, etc. are in the military (most are officers)• They are designed for those who break military law.• In 1950, the Court of Appeals for the Armed Forces was created (originally the Court of Military Appeals), to review serious court martial convictions of military personnel. • It is a civilian tribunal, separate from the military• It has 5 judges (a chief and 4 associates) and are appointed by the President for 15 year terms• Cases can be appealed to the Supreme Court, but it is so rare that the Court of Appeals for the Armed Forces is considered the military’s final court of appeal.

My Lai Massacre

THE TERRITORIAL COURTS:THE TERRITORIAL COURTS:• The Congress is required to make all needful Rules and Regulations respecting the Territory… belonging to the U.S.• The Courts sit in the Virgin Islands, Guam, and the Northern Marinara's and function like local courts in the US.

MILITARY TRIBUNALMILITARY TRIBUNAL: • The President has the authority to set up military tribunals by executive order• A military tribunal is a kind of military a kind of military court court designeddesigned to tryto try members of enemy members of enemy forces forces during during wartime, wartime, operatingoperating outside outside the scope of conventional criminal and the scope of conventional criminal and civil matterscivil matters.• President Bush attempted to do so to try the members of Al-Qaeda in Guantanamo Bay starting in 2002.• But, the Supreme Court severely limited the Bush administration’s power to do so… all of the pending tribunals have been stopped.• In 1942, FDR ordered military tribunals for 8 Nazi saboteurs caught in the U.S. who had plans to hurt the war effort in the county.• 6 were found guilty and executed; the other 2 turned on their coconspirators and received long jail sentences.

Six Nazi saboteurs

captured in the US and

executed in 1942

Al-Qaeda prisoners at a holding facility at Naval Base, Guantanamo

Bay, Cuba

The Nuremberg Trials were a series

of trials most notable for the prosecution of

prominent members of the leadership of

Nazi Germany

THE COURT OF APPEALS FOR VETERANS CLAIMSTHE COURT OF APPEALS FOR VETERANS CLAIMS::• Congress created the Court of Veterans Appeals in 1988, but changed its name to the Court of Appeals fir Veterans Claims.• Has a chief justice and up to 6 associate justices, appointed by the President, given 15 year terms.• Court had power to hear appeals from the Board of Veterans Appeals in the Department of Veterans Affairs.• Cases are heard about how the VA has denied or mishandled valid claim for veterans benefits.• Appeals may go to the Court of Appeals for the Federal Circuit.

THE UNITED STATES TAX COURTTHE UNITED STATES TAX COURT::• The tax Court has 19 judges, one of whom serves as chief judge.• Each of the 19 judges are named by the president and approved by the Senate (15 year terms).• The hear civil, not criminal cases, about the application of tax laws.• Most cases are generated by the Internal Revenue Service (IRS) and other Treasury Department agencies.• Appeals go to the Federal Courts of Appeals.

The The Supreme Court [only court created

by the constitution] is made up of nine members; the Chief JusticeChief Justice and and eighteight Associate Justices Associate Justices..

The Supreme Court serves as the final court of appealsfinal court of appeals. It hears cases that appealed from federal and State courts, but they choose which cases to hear. In recent years, the Supreme Court chooses among an average of 8,000 cases. It usually puts about 80-120 on its docketdocket (a list of cases to be heardlist of cases to be heard). The decision to hear cases is based upon the “Rule of Four”“Rule of Four” (if 4 justices believe that the case is worth hearing, it is placed on the docket)docket).

SixSix justices must be present for a case to be decided.

Blindfolded lady with balanced scale…

Justice is blind, sees no

color, religion, etc.

1818

1919

2020

Supreme Court cases rely on a Supreme Court cases rely on a simple majority (5-4). There is simple majority (5-4). There is

no other court of appeal-no other court of appeal- the Supreme Courts’ major function is to determine the constitutionality of laws. If they decide a law is If they decide a law is unconstitutional,unconstitutional, there is nothere is no

where else to go!where else to go!

BUT… Congress may modify BUT… Congress may modify a law to make it a law to make it

constitutional, or they may constitutional, or they may propose an amendment to propose an amendment to the Constitution making the the Constitution making the

law Constitutional.law Constitutional.

Under the Constitution, the Supreme Court can decide whether or not laws or presidential actions are constitutional.

So, after Marbury v. Madison, the Supreme Court officially asserted its right to judicial reviewjudicial review. They have used this power in thousands of cases… usually, federal or state actions are upheld (found to be constitutional). Each year the court hears dozens of cases that do not involve ““constitutionalityconstitutionality””, but they instead interpret and define federal law. So the Court as had a major impact on the interpretation meaning and effect of US laws!

• The Supreme Court has both original and both original and appellate jurisdictionappellate jurisdiction and original jurisdiction and original jurisdiction. … but most come through appeals.

• According to the Constitution, there are only 2 situations when the Supreme Court can have original jurisdictionoriginal jurisdiction. 1. Those cases to which a State is a party.2. Those affecting ambassadors, other public

ministers, and consul. So it doesdoes have original jurisdiction in these cases.

• The vast majority of cases heard have vast majority of cases heard have been appealed from a lower court.been appealed from a lower court.

• It is rare that that the Supreme Court hears cases in its original jurisdiction (the court usually only hears one or two cases each term that are in the original jurisdiction) .

• Cases appealed from State courts must

involve "a "a substantial federal questionsubstantial federal question. " . "

2121

2222

• About 8,000 cases are appealed to the Supreme court annually… but the Court will only accept a few hundred petitions.• This is usually because the court believes that the case was properly decided in the lower courts or the case is not significant enough to hear.• More than half of the cases are disposed of in “brief orders”“brief orders” in which the cases are remanded (sent back) to lower courts for consideration after related cases have been heard.• So, all told, the Court only hears arguments for about 120-150150 cases per year.• Most cases [90%] get to the Supreme Court by writ of writ of certioraricertiorari (“to be made more certain)(“to be made more certain) which is an order to a lower court to send up the record in a given case for its review. • “Cert”Cert” is usually only granted in rare cases when there is a constitutional issue or a serious problem in the interpretation of a statute.• If certiorari is denied, the lower court decision stands (lower courts could be the circuit courts, the districts courts, high state courts, and I rare cases, the Court of Appeals for the Armed forces. ClerksClerks are legal assistants who do much of the research for the justices.

Federal District Court

Step 1Case is filed in

Federal District Court

Federal Appeals Court

Step 2Case is appealed

to the federal court of appeals

Step 4Supreme Court

rules on the case

US Supreme Court

Step 3Case is appealed to Supreme Court

The Court eitherAllows lower court ruling to stand

Remands case to lower courtAgrees to hear case

23232424

2525

The Supreme Court sits from the first Monday in October to sometime the following June or July. The “2005 term” ran from October 1, 2005 to the summer of 2006.

Oral Arguments: • Once the Supreme Court takes a case, it sets a date it will be heard and will consider all cases in two week cycles from May to October.• They hear oral arguments in several cases for 2 weeks… then they recess for 2 weeks to consider them and conduct other court business.• Oral arguments conveneat 10:00AM, Monday through

Wednesday (& sometimes Thursday). • Lawyers generally have 30 minutes to make theirPresentations.

The clerks screen all petitions that come to the Court. When they find deservingdeservingones, they are put on a DISCUSSDISCUSS LIST & are considered if they pass the “rule of 4.”“rule of 4.”2626

Each Justice usually appoints four law clerks,

many of whom are the cream of Ivy League law

school graduates.

Each year, the Supreme Court receive thousands of writs of

certiorari. Cases must pass through the Court's screening process. The process begins with the law clerks, who sift through the petitions and settle upon a few that they deem

worthy of consideration. The justices provide the clerks with their

particular instructions in this process.

Latin for "friend of the court." Refers to a party that is allowed to provide information (usually in the form of a legal brief) to a court even though the party is not directly involved in the case at hand.

Briefs: • These are written documents filed with Court before oral arguments.• The briefs detail relevant facts, cite previous cases that support their case.• The courts may also receive amicus amicus curiaecuriae (friend of the courtfriend of the court) which are filed by people or groups not involved, but have a substantial interest in the substantial interest in the casecase. They can only be filed the permission or by request of the Court.• The solicitor general (often called the Federal Government’s Chief lawyer) represents the United States in all cases of which the government is a party.• The solicitor general also decides decides which cases the government should which cases the government should ask the Supreme courtask the Supreme court to review to review and what position the U.S. should take in those cases.

Solicitor General Paul D. Clement

THE COURT IN CONFERENCETHE COURT IN CONFERENCE: : • On Wednesdays and FridaysWednesdays and Fridays, the Supreme Court meets to discuss the cases they have heard in secrecy.• The Chief Justice presidesChief Justice presides over the conference and is first to speak on cases. After he is finished, each associate justice (based on seniority) lays out their views.• After the justices are “polled”“polled”, they usually debate the case.• One-third of cases are unanimousunanimous, but most are divided… particularly in the current court. • This demonstrates the great degree of controversy attached to supreme court cases.

U.S. Supreme Court, Justices' Conference Room

• The Court sits [a “sitting“sitting””] for a term of about 9 months each year, from the 11stst Monday in October Monday in October until June or July. The Justices hear arguments for two weeks, then recess for 2 weeks. There are 7 two-week sessions. The court opens at 10 a.m., Monday through Thursday.

• The lawyers are normally allowed thirty minutes to present their thirty minutes to present their oraloral argumentsarguments. They stand behind a lectern that has two lightsstand behind a lectern that has two lights attached. A white light flashes 5 minutes before time is upwhite light flashes 5 minutes before time is up. When the 30 minutes is 30 minutes is up & the red light goes onup & the red light goes on, the lawyer must stopmust stop immediately,

• The lawyers also prepare written BRIEFS BRIEFS – detailed and systematic detailed and systematic argumentsarguments that often run to hundreds of pages. They influence the Justices in reaching their decisions and writing their opinions.

• On FridaysFridays, the Justices confer and try to decide the disposition of cases. These are secret conferencessecret conferences and no formal report of them is ever made.

• Most cases are the “hard” “hard” ones; the “easy”“easy” cases seldom get that far.• Majority opinionMajority opinion – accompanies the decision of a casedecision of a case.• Dissenting opinionDissenting opinion – are written by Justices who don’t agreewritten by Justices who don’t agree.• Concurring opinion – written by Justices who agreeagree, but not not with thewith the reasoning reasoning.• Unanimous decisionUnanimous decision – all the Justices agree the same wayall the Justices agree the same way.• A tie votetie vote among the Justices means the lower courts decision lower courts decision doesdoes standstand.

2727

2828

2929

3030

3131

3232

• Getting agreement is like “negotiating with 9 separate law firms.”“negotiating with 9 separate law firms.”• The nine Justices are called BRETHRENBRETHREN, even though there have been

two women Justices & currently one. Been called “9 scorpions in a “9 scorpions in a bottle.” bottle.”

• The President President can notcan not remove justices remove justices.• Justices can be removed only by House impeachment when accused of

wrongdoing. The Senate can remove them if they are guilty of “treason, “treason, bribery, or other high crimes and misdemeanors.”bribery, or other high crimes and misdemeanors.” None have been impeached.

• 29 have failed to get appointed29 have failed to get appointed. In the 80s, Robert Ginsburg failed when he confirmed that he smoked marijuana in college.

• There has been only one impeachment attemptonly one impeachment attempt in 1804, and that proved unsuccessful. The attempted impeachment of Samuel ChaseSamuel Chase was politically motivated & accomplished little except ill-feelings on both sides.

• There have been just over 100 men and 2 womenover 100 men and 2 women [Sandra Day O’Conner and Ruth Bader Ginsberg] who have served as Justices. The typical Justice has been white, male, and Protestantwhite, male, and Protestant, and held a law degree. There have been 2 blacks, 6 Catholics and 5 Jews appointed to the Court.

• TrumanTruman considered his appointment of Justice Tom ClarkJustice Tom Clark the biggest mistake of his presidency. “It isn’t so much that he’s a bad man. It’s just that he is such a It’s just that he is such a dumb son of a b_____. He’s about the dumbest man I think I’ve ever run across.”dumb son of a b_____. He’s about the dumbest man I think I’ve ever run across.”

3333

3434

• Judicial Review is used at both state and national level.• JudicialJudicial ReviewReview is the power to determine the constitutionality of a determine the constitutionality of a law or presidential actionlaw or presidential action… or even judicial decision.• The ULTIMATE POWERULTIMATE POWER rests with Supreme Court of the United States- it has he final authority on the meaning of the Constitution.• The constitution actually says nothing about its judicial review.• But… most agree that the Framers intended for this power to be instrumental function in the federal courts--- particularly the Supreme Court.

3535

• Adams, during the last days and months of his term, appointed forty-two new federal judges (“midnight j(“midnight justicesustices”)”) in a desperate move to keep some Federalist control of the government. William MarburyWilliam Marbury was commissioned to be Justice of the Peace for the District of Columbia.

• Secretary of State James MadisonJames Madison was ordered by Jefferson NOT to turn over papers appointing Marbury and others, despite having been signed by Adams.

• Marbury went to the Supreme Court and sought a writ of mandamuswrit of mandamus (order by the court to an official to carry out legal duties) sued Madison and the.Judiciary Act of 1789 Judiciary Act of 1789 established that some cases against federal officials could be brought directly to the US Supreme Court. Therefore, the Supreme Court had original jurisdictionoriginal jurisdiction according to the Judiciary Act.

Hence, the Constitution did not give Congress the right to pass the Judiciary Act.• Marbury v. MadisonMarbury v. Madison established the power of JudicialJudicial ReviewReview, the ability to declare a law unconstitutional., the ability to declare a law unconstitutional.• To this day, the Supreme Court has final word on laws. They have overturned over 1,200 State and local lawsoverturned over 1,200 State and local laws and around 150 Federal laws150 Federal laws.

• The Supreme Court refused Marbury’s request citing that the part of Judiciary Act of 1789 he based his suit upon, was unconstitutional.• The Constitution did not say Congress had the power to determine where cases against officials could be heard.• It said, “In all Cases affecting “In all Cases affecting Ambassadors, Ambassadors, other public Ministers and Consuls, and those other public Ministers and Consuls, and those in which a State shall be Party, the Supreme in which a State shall be Party, the Supreme Court shall have original Jurisdiction. In all the Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction”Court shall have appellate Jurisdiction”..

3636

John MarshallJohn Marshall

Chief Justice John Marshall’s opinion was based on three proposals:

1. The Constitution is the supreme law of the landsupreme law of the land..

2. All legislative actsAll legislative acts (laws by congress) and other acts of government, are are subordinate to the U.S. subordinate to the U.S. ConstitutionConstitution and cannot come in conflict with it.

3. 3. JudgesJudges are sworn to protect the provisions of the Constitution & must must refuse to enforce any refuse to enforce any government act that is in government act that is in conflict with theconflict with the ConstitutionConstitution.. Chief Justice John Marshall

• If the Chief Justice is in the majority, he will write the “majority opinionmajority opinion” (Opinion of the Court) which announces the decision and explains its reasoning.• If the Chief Justice is in the minority, the majority opinion is written by the senior most associate justice on the majority side.• The Court’s written majority opinions stand as precedentsprecedents (examples for lower courts and future Supreme Courts to follow).• The vast majority of cases are settled on the principle of stare decisis stare decisis ("let "let the decision stand"the decision stand"), meaning that an earlier decision should hold for the case being considered. • Sometimes, justices will write a concurring opinionconcurring opinion to add or emphasize a point the majority opinion does not state.• Dissenting opinionsDissenting opinions are often written by one or more justice who disagree with the majority opinion. These are important because few things are “carved in stone”… today’s dissenting opinion could be the majority stance years later!

The Supreme Court decides very few cases. • In a typical year, the Court issues fewer than 100 formal written opinions that could serve as precedent. • In a few dozen additional cases, the Court reaches a per curiamper curiam (opinion of the court) decision-a decision without explanation (usually unsigned); such decisions involve only the immediate case and have no value as precedent because the Court does not offer reasoning that would guide lower courts in future decisions. • Once announced, copies of a decision are conveyed to the press as it is being formally announced in open court.• The decisions are bound weekly and made available to every law library and lawyer in the United States.

John Roberts

Chief JusticeJohn Paul StevensAssociate Justice

Stephen BreyerAssociate Justice

Antonin ScaliaAssociate Justice

Anthony KennedyAssociate Justice

Sonia SotomayerAssociate Justice

Clarence ThomasAssociate Justice

Ruth Bader GinsburgAssociate Justice

Samuel AlitoAssociate Justice

Experience, age, raceAnd ideology defineSupreme Court JusticesAppointed byI Republican I Democrat

http://www.scotusblog.com/wp/category/term-tracker/

Implementing court decisionsImplementing court decisions• All Supreme Court decisions are really "remands" to lower courts, instructing them to act in accordance with the Court's decisions. • Court decisions carry legal (even moral) authority, but courts do not possess a staff to enforce their decisions. • Judicial implementation refers to how and whether Judicial implementation refers to how and whether court decisions are translated into actual policycourt decisions are translated into actual policy.• Charles Johnson and Bradley Canon suggest that implementation of court decisions involves several elements: 1. There is an interpretation populationinterpretation population - heavily composed of lawyers and other judges-who must correctly sense the intent of the original decision in their subsequent actions. 2. The implementing population includes those responsible for putting the decision into effect; judicial decisions are more likely to be smoothly implemented if implementation is concentrated in the hands of a few highly visible officials. 3. Every decision involves a consumer populationconsumer population (those affected by the decision); the consumer population must be aware of its newfound rights and stand up for them.

The debate over original intentions. The debate over original intentions. • The most contentious issue involving

the courts is the role of judicial judicial discretiondiscretion; the Constitution itself does not specify any rules for interpretation. for interpretation.

• Some have argued for aSome have argued for a jurisprudence jurisprudence of original intentof original intent (sometimes referred to as strict constructionismstrict constructionism).

• This view, which is popular with conservatives, holds that judges and judges and justices should determine the intent ofjustices should determine the intent of the framers of the Constitution and the framers of the Constitution and decide cases in line with that intentdecide cases in line with that intent.

• Advocates of strict constructionism view it as a means of constraining the exercise of judicial discretion, which they see as the foundation of the liberal decisions of the past four decades.

• Others assert that the Constitution is subject to multiple meanings; they maintain that what appears to be deference to the intentions of the framers is simply a cover for making conservative decisions.

What would Madison say?

THE COURTS AND THE POLICY AGENDATHE COURTS AND THE POLICY AGENDA • The courts both reflect and help to help to determine thedetermine the national policy agendanational policy agenda. • Until the Civil War, the dominant questions before the Court regarded the strength and legitimacy of the federal government and slavery. • From the Civil War until 1937, questions of the relationship between the federal government & the economy predominated; the courts traditionally favored corporations, especially when government tried to regulate them. • From 1938 to the present, the paramount issues before the Court have concerned personal liberty and social and political equality. • In this era, the Court has enlarged the scope of personal freedom and civil rights, and has removed many of the constitutional restraints on the regulation of the economy.• Most recently, environmental groups have used the courts to achieve their policy goals.

• When Franklin Roosevelt entered the White House, the Court was dominated by conservatives who viewed federal intervention in the economy as unconstitutional and tantamount to socialism.

• At President Roosevelt's urging, Congress passed dozens of laws designed to end the Great Depression; but the Supreme Court declared the acts unconstitutional.

• In 1937, Roosevelt proposed what critics called a "court-packing plancourt-packing plan."

• Referring to the Court as the "Referring to the Court as the "nine old mennine old men" (reference old age their political philosophies), he proposed that Congress expand the size of the Court.

• Since Congress can set the number of justices, this move would have allowed him to appoint additional justices sympathetic to the New Deal.

• Although Congress never passed the plan, two justices (Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts) began switching their votes in favor of New Deal legislation-a transformation that was called the "switch in time that saved nine."

• When the chief justice's position is is vacant, presidents vacant, presidents usually nominate usually nominate someone from outside the Courtsomeone from outside the Court, but if they decide to elevate a sitting associate justice (as President Reagan did with William Rehnquist in 1986), he or she must go through a new confirmation hearing. Selection processSelection process.. • The president usually relies on the attorney general and the Department of attorney general and the Department of JusticeJustice to identify and screen candidates for the Supreme Court. • Sitting justicesSitting justices often try to influence the nominations of their future colleagues, but presidents feel no obligation to follow their advice. • Senators play a much less prominent role.• The ABA's Standing CommitteeABA's Standing Committee on the Federal Judiciary has played a varied but typically modest role; presidents have not generally been willing to allow the committee to prescreen candidates.

Presidents have failed 20 percent of the time to get Senate confirmation of nominees (Supreme Court nominees are higher).

• Through its Judiciary Committee, the Senate may probe a nominee's background and judicial philosophy in great detail.

Nominations are most likely to run into trouble under certain conditions.

• Presidents party in the minority in the Senate or who make a nominations at the end of their terms.

• Opponents of a nomination usually must be able to question a nominee's competence or ethics in order to defeat a nomination.

• Opposition based on a nominee's ideology is generally not considered a valid reason to vote against confirmation (illustrated by the confirmation of Chief Justice William Rehnquist, who was strongly opposed by liberals).

THE BACKGROUNDS OF JUDGES AND JUSTICESTHE BACKGROUNDS OF JUDGES AND JUSTICES Characteristics of district and circuit court judges: • Judges serving on federal district and circuit courts are not a representative sample of the American people. • All lawyers, and overwhelmingly white males. • Held office as a judge or prosecutor, and often they have been involved in partisan politics.

Characteristics of Supreme Court JusticesCharacteristics of Supreme Court Justices• All have been lawyers, and all but four (Thurgood Marshall, Sandra Day O'Connor, Clarence Thomas, and Ruth Bader Ginsburg,) have been white males. • Most have been in their 50’s and 60’s when they took office, upper-middle to upper-class, & Protestants.• Geography is no longer very important. • At various times, there have been what some have termed a "Jewish seat""Jewish seat" and a "Catholic seat""Catholic seat" on the Court, but not binding (currently there are 3 Catholics and 2 Jews).• Typically, justices have held high administrative or judicial positions. • experience as a judge, often at the appellate level. • some worked for the Department of Justice, and some have held elective office. • A few have had no government service.

"Politics" and the Selection Process"Politics" and the Selection Process• PartisanshipPartisanship is an important influence on

the selection of judges and justices: only 13 of 108 members of the Supreme Court have been nominated by presidents of a different party.

• Decisions of Congress to create new judgeships are closely related to whether or not the majority party in Congress is the same as the party of the president.

• IdeologyIdeology is as important as partisanship; presidents want to appoint to the federal bench people who share their views.

• Presidential aides survey candidates' decisions (if they have served on a lower court), speeches , political stands, writings, and other expressions of opinion.

• They also turn for information to people who know the candidates well.

• Members of the federal bench also play the game of politics, and may try to time their retirements so that a president with compatible views will choose their successors.

• Presidents influence policy through their judicial nominees, but this impact is limited by numerous legal and "extra legal" factors beyond the chief executive's control.

• Presidents are typically pleased with their nominees to the Supreme Court, and through them have slowed or reversed trends in the Court's decisions (Franklin D. Roosevelt's nominees substantially liberalized the Court, whereas Richard Nixon's conservatized it).

• Nevertheless, it is not always easy to predict the policy inclinations of candidates, and presidents have been disappointed in their nominees about one-fourth of the time (President Eisenhower was displeased with the liberal decisions of both Earl Warren and William Brennan, and Richard Nixon was disappointed when Warren Burger wrote the Court's decision calling for immediate desegregation of the nation's schools).

The Warren Court (1953-1969)The Warren Court (1953-1969)• Few eras of the Supreme Court have been as active in shaping public policy

as that of the Warren Court. • In 1954, the Court held that laws requiring segregation of the public schools

were unconstitutional (Brown v. Board of EducationBrown v. Board of Education). • The Court expanded the rights of criminal defendants III numerous areas. • It ordered states to reapportion their legislatures according to the principle of

"one person, one vote." "one person, one vote." • The Court's decisions on desegregation, criminal defendants' rights, and

voting reapportionment led to calls from right-wing groups for Chief Justice Earl Warren's impeachment; critics argued that the unelected justices were critics argued that the unelected justices were making policy decisions that were the responsibility of elected officialsmaking policy decisions that were the responsibility of elected officials...

The Burger Court (1969-1986)The Burger Court (1969-1986)• Warren's retirement in 1969 gave President Nixon his opportunity to appoint a

"strict constructioniststrict constructionist" as Chief Justice; he chose Warren E. BurgerWarren E. Burger. • The Burger Court was more conservative than the liberal Warren Court, but did

not overturn the due process protections of the Warren era. • The Court narrowed defendants' rights, but did not overturn the fundamental

contours of the MirandaMiranda decision. • It was also the Burger Court (not the Warren Court) that wrote the abortion

decision in Roe Roe v. v. WadeWade (1973), required school busing in certain cases to eliminate historic segregation, and upheld affirmative action programs in the United Steelworkers of America v. WeberUnited Steelworkers of America v. Weber.

• When the Supreme Court was called upon to rule on whether President Nixon's White House (Watergate) tapes had to be turned over to the courts, it unanimously ordered him to do so, in United States United States v. v. NixonNixon (1974)… and thus hastened his resignation.

The Rehnquist Court (1986-2005)The Rehnquist Court (1986-2005) • The Rehnquist Court did not create the "revolution""revolution" in

constitutional law desired for by strict constructionists; instead, the court saw numerous 5-4 decisions numerous 5-4 decisions regarding defendants' rights, abortion, and affirmative action.

• Most decisions upheld previous precedents or, in many instances, created more “liberal” precedents.

• The voting of justices was predictable, minus O’Connor and Kennedy, who had more abstract views of the law. Conversely, during the last 10 years of the Rehnquist Court, Rehnquist, Scalia, and Thomas were reliable conservatives… Stevens, Souter, Breyer, and Ginsburg were reliable liberals.

The Roberts Court (2005-Present)The Roberts Court (2005-Present)• Chief Justice John Roberts was confirmed by the Senate on September 29, 2005 and presided over the Court for the first time on October 3, 2005. • Since its beginning, the Robert’s Court has provided strict constructionists with some hope.• The retirement of swing justice Sandra Day O’Connor and the subsequent confirmation of Samuel Alito has almost assured a more conservative court.

• So far…• Rumsfeld v. Forum for Academic and Institutional Rights: colleges that accept federal money must allow military recruiters on campus.• Upheld the US Congress’ Partial Birth Abortion Ban. • More to come…

The courts and democracyThe courts and democracy • In some ways the federal courts are not a very not a very democratic institutiondemocratic institution.

• not elected and are hard to remove. • elite-dominated.

• However, the courts are not entirely independent of popular preferences.

• Even when the Court seems out of step with other policymakers, it eventually swings around to join the policy consensus. • not as insulated from the normal forms of politics. • flooded with mailmail, subjected to demonstrations and protests, and bombarded with amicus curiae briefs.

• Although it is unlikely that they will cave in to interest group pressures, they are aware of the public's concernpublic's concern, and this becomes part of their consciousness as they decide cases. • Courts can also promote pluralismpluralism; interest groups often use the judicial system to pursue their policy goals, forcing the courts to rule on important social issues.

Many disagree about the appropriateness of allowing the courts to have a policy-making role. • Many scholars and judges call for judicial judicial restraintrestraint, leaving policy decisions to the legislatures. • Judicial restraint advocates believe decisions believe decisions such as abortionsuch as abortion and school prayer go beyond theand school prayer go beyond the "referee" role"referee" role appropriate for courts. • Proponents of judicial activismProponents of judicial activism, can even breaking new constitutional groundnew constitutional ground with a particular decision. • They emphasize that the courts may alleviate courts may alleviate pressingpressing needs, for the politically or economically needs, for the politically or economically weakweak.• It is important not to confuse judicial activism or restraint with liberalism or conservatism.

• In the early years of the New Deal, judicial activists were conservatives, according to some • During the tenure of Earl Warren, activists made liberal decisions.

• The federal courts have developed a doctrine of political questions as a means to avoid deciding some cases, principally those regarding conflicts between the president and Congress. • Judges attempt, whenever possible, to avoid deciding a case on the basis of the Constitution; they show a preferenceshow a preference forfor less contentious "technical" groundsless contentious "technical" grounds. • The courts employ issues of jurisdiction, mootnessmootness (whether a case presents an issue of contention), standingstanding, ripenessripeness (whether the issues of a case are clear enough and

evolved enough to serve as the basis of a decision), and other conditions to avoid adjudication of some politically-charged cases. • Federal courts have been much more more likely to find state laws rather than federal likely to find state laws rather than federal laws unconstitutionallaws unconstitutional.

Other factors that limit judicial activismOther factors that limit judicial activism• One factor that increases the acceptability of activist courts is the ability to overturn their decisions.

• The president and the Senate determine who sits on the federal bench.

• Congress can begin the process of amending the Constitution to overcome a constitutional decision of the Supreme Court; thus, the Sixteenth AmendmentSixteenth Amendment (1913) reversed the decision in Pollock v. Farmer's Pollock v. Farmer's Loan and Trust CoLoan and Trust Co. (1895), which prohibited a federal income taxfederal income tax.

• Congress could alter the appellate jurisdiction of the Supreme Court to prevent it from hearing certain types of cases (an alteration that has not occurred since 1869, although some in Congress threatened to employ the method in the 1950s regarding some matters of civil liberties ). • If the issue is one of statutory construction (in which a court interprets an act of Congress), the legislature routinely passes legislation that the legislature routinely passes legislation that clarifiesclarifies existing laws-and, in effect, overturns the courtsexisting laws-and, in effect, overturns the courts. .

• Thus, the description of the judiciary as the "ultimate arbiter of the Constitution" is hyperbolic; all the branches of government help define and shape the Constitution.

““Separate but equal is constitutional.”Separate but equal is constitutional.”

““Can never be Can never be separate and separate and

equal.”equal.”

“Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents,

our teachers and our Country.”

““Nondenominational prayer is unconstitutional Nondenominational prayer is unconstitutional in the public schools.”in the public schools.”

Can not use illegalCan not use illegalevidence in a evidence in a criminal trial.criminal trial.

Connecticut prohibited the use of contraceptives and theConnecticut prohibited the use of contraceptives and theCourt ruled that violated the “right to marital privacy.” Court ruled that violated the “right to marital privacy.”

Gideon Gideon v.v. Wainright, 1963 Wainright, 1963

• The TaxTax Court hears civil, but not criminal cases involving disputes between taxpayers and the I.R.S.

• The ClaimsClaims court hears cases when individuals think the “G” owes them $.• SpecialSpecial Courts have jurisdiction only in certain cases.• The PresidentPresident appoints all federal judges, subject to confirmation by the

Senate. • The Court of MilitaryMilitary Appeals is the court of last resort in cases involving

offenses against military law. It reviews serius court-martial convictions. Appeals are seldom heard by the Supreme Court.

• Federal judges are selected from the ranks of leading attorneys, legal scholars and law school professors, former members of Congress, and from the State Courts. The President considers politics, legal traininglegal training, judicial philosophy, and he gets a recommendation from the ABA for a candidate as “well qualified”“well qualified” or “unqualified.”“unqualified.”

• All judges of the constitutional courts are appointed for lifelife, until they resign, retire, or die in office. They may be removed only by the impeachment process. Life tenure gives them independence.

• Federal MarshalsMarshals make arrests, secure jurors, and serve legal papers.

3737

3838

3939

4040

4141

4242

4343

4444

1. It is the (Congress/President/Judiciary) that says what the law is.2. Because we have a system of State and federal courts, the U.S. has a (unitary/dual) court system. 3. (Special Courts/Constitutional Courts) are federal courts that exercise the judicial power of the U.S.4. (Special Courts/Constitutional Courts) are legislative courts that hear cases arising out of the expressed powers given to Congress (such as the Tax Court or Claims court).5. The __________ courts are the regular courts beneath the Supreme Court.6. ____________ is the authority of a court to hear a case.7. ____________ jurisdiction means these cases can be heard only in the federal courts.8. ____________ jurisdiction means that these cases can be tried in either a federal or State court9. __________ law is concerned with disputes between two or more individuals or between individuals and the government.10. A (defendant/plaintiff) is the person who is suing.11. A (defendant/plaintiff) is the person who is sued.12. (Appellate/Original) jurisdiction is when a case can be heard in a court firsthand.13. (Appellate/Original) jurisdiction is when a case can be heard on appeal from a lower court [secondhand].14. The lowest federal courts are called __________ Courts.

inferiorinferiorJurisdictionJurisdictionExclusiveExclusive

ConcurrentConcurrent

CivilCivil

DistrictDistrict

15. The Courts of __________ was established to relieve the Supreme court of much of its workload. They hear cases if they are not satisfied with the decisions of District Courts.16. The Court of Appeals has (both original & appellate/only appellate) jurisdiction.17. The court of _____________ _________ hears civil cases arising out of the tariff and trade-related laws.18. The (District Courts/Supreme Court) was the only court specifically created by the Constitution.19. The Presiding Officer of the Supreme Court is the _______ __________ and there are (two/four/six/eight) associate justices.20. (Four/Five/Six/Eight) justices must be present for a case to be decided.21. The Supreme Court has (only appellate jurisdiction/both original and appellate jurisdiction).22. The Supreme Court (does/does not) have original jurisdiction in cases such as problems that arise with ambassadors, public ministers, and consuls and where the State is a party.23. Of the thousands of cases appealed to the Supreme Court each year, only about (10/150/500/1,000) actually receive a full hearing and a written opinion.24. Decisions reached by earlier courts in similar cases are called Writ of ______________.25. The legal assistants that help the Justices of the Supreme Court are called (secretaries/ bros/homes/clerks).26. When the clerks find cases deserving serious consideration, they are put on a __________ list.

AppealsAppeals

International TradeInternational Trade

Chief JusticeChief Justice

CertiorariCertiorari

DISCUSSDISCUSS

27. A period during which the Justices of the Supreme Court listen to oral arguments by the lawyers on each side of cases before them is called the (recess/sitting/brief).28. A statement by one party in a case setting forth the legal arguments, relevant facts, and precedents supporting the party’s position is the (recess/sitting/brief).29. The decision of most of the Justices of the Supreme Court is a (unanimous opinion/dissenting opinion/majority opinion).30. The decision of the minority of Justices of the Supreme Court is a (majority opinion/dissenting opinion, unanimous opinion).31. When all Justices of the Supreme Court vote the same way, this is a (majority opinion/dissenting opinion/unanimous opinion). 32. A tie vote among the Justices of the Supreme Court means the lower court’s previous decision (does/does not) stand.33. The nine Justices are called (homes/bros/brethren/hey youse). 34. The President (can/can not) remove a Justice if he doesn’t like his decisions.35. __________ Review is the power to decide the constitutionality of an act of government, whether executive, legislative, or judicial.36. The Supreme Court first asserted that it had the power of judicial review in the 1803 case of ______________________.37. The ______ Court hears civil, but criminal cases involving disputes between taxpayers and the I.R.S.38. The _________ Court has original jurisdiction to hear cases of persons who believe that the government owes them money.

JudicialJudicial

Marbury v. MadisonMarbury v. MadisonTaxTax

ClaimsClaims

39. The __________ Courts are federal courts Congress has created to exercise jurisdiction only in certain cases.40. The ____________ appoints all federal judges, subject to confirmation by the Senate.41. The Court of __________ Appeals is the court of last resort in most cases involving offenses against military law.42. In considering candidates for federal judgeships, Presidents consider their judicial philosophy, party affiliation, & (legal training/high school government grade).43. All judges of the constitutional courts are appointed for (7 years/14 years/life). 44. Federal __________ make arrests, secure jurors, and serve legal papers.

SpecialSpecial

PresidentPresident

MilitaryMilitary

MarshalsMarshals