GOVT 2302

The Judiciary Constitutional Design

In the last set of power points we looked at the general features of the judiciary and walked briefly

through it’s historical development.

This involved coming to terms with the development of common law

and the courts as independent institutions.

Recall that many of the grievances against George III regarding the

judiciary were about his attempts to control it.

We briefly pointed out that there was no national judiciary under the

Articles of Confederation. Having one would subject the states to

lawsuits by other states, or people in other states.

That was a no-no.

But the lack of a national judiciary was one of the many factors

leading to dissatisfaction with the Articles and the calling of the

national convention.

In this set of power points we read through the constitutional articles which establish the design of the

U.S. and Texas Constitutions.

As we know, these articles are:

Article 3 of the U.S. Constitution (Wikipedia Page)

and Article 5 of the Texas Constitution

(Texas Judicial System)

The Constitutional Convention considered the national judiciary

on the following days:

June 4June 5

June 13July 18July 21

August 15September 15

From the Federal Judicial Center:

Constitutional Origins of the Federal Judiciary—Talking Points

The judiciary proved to be far less controversial than other matters

faced by the members of the convention.

The resulting article was very short

3 Sections375 words

that’s it

Here’s a quick overview, with comments.

Section One, Clause One

Comments from Findlaw and Wikipedia.

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

As with the other institutions, a judicial power is acknowledged to exist separate from the legislative and executive, and it is given to an

institution established for that purpose.

By the way, a quick word on titles. Member of the Supreme Court are called “justices,” members of the lower courts are called “judges.”

This is worth a comment. Were the executive to design the judiciary, a dangerous intermingling of power

would be likely to occur. Police and prosecutors, if you recall, work for the executive. The courts must be neutral in how they treat them as

opposed to the defense.

The judiciary has been designed and redesigned in various Judiciary Acts over the course of American history. The current design was

established in 1993. Click here for a history of the court system.

And click here for the current map of the U.S. Courts: Map

(Wikipedia)

Congress also establishes the size of the Supreme Court. This can

become controversial whenever there is a move to increase the size

of the court.

There have been nine members on the court since 1869.

Congress has actually established two types of tribunals. What we

normally consider to be the courts are Article III courts. These are the

institutional responsible for adjudicating the law.

Article III Courts:

U.S. Supreme Court (wikipedia)U.S. Courts of Appeals (wikipedia)

U.S. District Courts (wikipedia) Bankruptcy Courts (wikipedia)

FYI: We are in the Southern District of Texas, U.S. District and

Bankruptcy Court.

That court is in the Fifth Circuit Court of Appeals.

The Interior of the 5th Circuit Court

Congress has also established legislative courts, Article I courts,

which have limited ability to adjudicate matters within their

jurisdiction. These include military courts.

Article I Courts

legislative courts that do not have full judicial power

U.S. Court of Military AppealsU.S. Tax Court

U.S. Court of Veterans' Appeals

Section One Clause Two

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Both parts of this clause are meant to ensure judicial independence.

“shall hold their Offices during good Behaviour”

The meaning can be loose: “Orderly and lawful action;

conduct that is deemed proper for a peaceful and law-abiding

individual.”

“during good behavior” is generally taken to mean that judges have lifetime tenure, unless they do something that can lead to their removal. They cannot be pressured by the entity that appointed them to the

office.

This is a major component of judicial independence.

Hamilton argued that this was necessary to ensure that the courts would be powerful. As we will see,

he was concerned about the weakness of the courts.

Lifetime tenure has become controversial. Does it allow judges

too much discretion? Should judges serve for limited terms?

Rethinking Life Tenure for Judges

Some related stories:

- Term limits for Supreme Court justices. - No Supreme Court Term Limits.

- Term limits for Supreme Court justices?- Supreme Court term limits.

Who were the longest serving Supreme Court Justices?

William O. DouglasStephen Field

John Paul StevensJohn Marshall

Recall that the appointment and confirmation of judges and justices

is covered in Article II.

The President makes the appointment and the Senate can

confirm then if they choose.

CRS Report: Supreme Court Appointment Process: Roles of

the President, Judiciary Committee, and Senate

Senatorial Courtesy is practiced when appointing judges to the

federal district courts.

Presidents generally seek the advice of Senators of their own

party before appointing judges in that Senator’s state.

This rule doesn’t apply to appellate courts since they straddle many

states.

The President has a degree of influence over who gets on the court, but the selection has to

limited by whoever is likely to be confirmed by the Senate.

Some are successful:

- Elena Kagan Supreme Court nomination- Sonia Sotomayor Supreme Court nomination

- Samuel Alito Supreme Court nomination - John Roberts Supreme Court nomination

Successful nominationsTotal List

Some Are Not:

- Robert Bork Supreme Court nomination- Harriet Miers Supreme Court nomination

Unsuccessful nominations

A party that is able to dominate presidential elections for a lengthy

period of time can influence the nature of Supreme Court decisions.

Democratic success between 1932 and 1948 gave Democratic

Presidents the ability to pack the courts with liberals.

Republican success between 1968 and 1988 gave Republican

Presidents the ability to pack the court with conservatives.

Is the current Supreme Court the most conservative in recent

decades? Is so, why?

Why does this matter?

Liberal justices are more likely to expand the rights of criminal

defendants while conservatives tend to side with law enforcement.

Liberal justices are more likely to side with people who bring civil rights claims against employers

while conservatives have a tendency to side with employers and other accused of violations.

The power of appointment does have an impact on the decisions

the court makes.

Presidents have their best opportunity to have a long-lasting impact on governing by how they

shape the judiciary – who they put on the courts-while they are

president.

Presidential appointments to the Court of Appeals, and especially

the Supreme Court, allow Presidents to influence future court decisions, but only if a

President can successfully predict how a judge or justice is likely to

act on the court.

Dwight Eisenhower was quoted as stating the two worst decisions he

made as President were the nominations of Earl Warren and William Brennan to the Supreme

Court. Both began as conservatives but help drive a series of liberal

decisions.

Many conservatives were also unhappy with the selection of

David Souter who was sold as a conservative, but allied with the

liberals once on the court.

Efforts have been made since to ideologically mold future Supreme Court justices early on so that they aren’t wildcards once they are on

the bench.

The conservative Federalist Society was developed to promote a conservative view

of the Constitution and has helped mold law students into future judges and

justices committed to that viewpoint. Three current members of the court have

been affiliated with the movement: Antonin Scalia, John G. Roberts and

Samuel Alito.

Liberals have recently attempted to match this effort by establishing the American Constitution Society,

which attempts to ensure that liberal judges are placed on the

courts.

What is the current ideological breakdown of the court?

It is commonly argued that the current court (as of the October 2011 term) is composed of four

conservatives, four liberals and a swing vote.

More detail on this to follow.

“shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished

during their Continuance in Office.”

Judges cannot be punished (controlled) by the legislature

through the power of the purse.

Section Two, Clause One

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party;--to Controversies between two or more States;--between a State and Citizens of another State;--between Citizens of different States;--between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

This lengthy passage establishes the court’s jurisdiction, that is,

what it has the authority to decide on, that is, what cases it can hear.

First Point:

The sections mentions that the court can hear cases in “Law and Equity.”

Law refers to the common and statutory law. Equity (translegal,

findlaw) refers to Equity is commonly said to "mitigate the rigor of common

law", allowing courts to use their discretion and apply justice in accordance with natural law.

The court seldom hears cases regarding equity.

Second Point:

A factor limiting the court’s jurisdiction:

Cases and Controversies (wikipedia)

The courts can only rule on cases brought before it.

As a consequence: The Judiciary is a reactive institution. It does not

set its own agenda, it responds to cases that are brought before it. It responds to disputes about specific

cases that present controversies that have a solution the courts can

offer.

The judiciary does not deal in hypotheticals, it has jurisdiction

over matters that involve the actual application of a law. This

gives a real world example of the consequence of the law.

It restricts the court from being an advisory institution. John Jay

denied Washington’s request for them to send advice about the

constitutionality of a law as being a violation of the separation of

powers.

Third Point:

People who bring cases before the courts must prove they have

standing before the court.

Standing

“The legal right to initiate a lawsuit. To do so, a person must be sufficiently affected by the matter at hand, and there must be a case

or controversy that can be resolved by legal action.”

The courts sometimes refuse to rule on cases brought before it because they decided that the

petitioner lacked standing to sue.

Example: Elk Grove v. Newdow

The case was a challenge to the phrase “under God” in the Pledge of

Allegiance. The father did not want his daughter to be made to say the

pledge, but: “On June 14, 2004, the Supreme Court held Michael Newdow, as a non-custodial parent, did not have

standing to bring the suit on his daughter's behalf.”

The court also limits cases based on whether the case is ripe (the

controversy has not arisen yet), or moot (the controversy has already

been resolved).

Fourth point:

The jurisdiction of the court was narrowed very quickly when the Eleventh Amendment overrode this section: “The judicial Power

shall extend to all Cases. . . between a State and Citizens of

another State.”

This allowed the citizens of one state to sue a different state in

federal courts. This did not recognize a state’s sovereign

immunity.

As a consequence, a South Carolinian sued Georgia for

payments due for good supplied during the Revolutionary War.

Georgia claimed sovereign immunity, but lost.

States don’t like to be sued.

Georgia challenged the decision in a case called Chisholm v Georgia.

The Eleventh Amendment was ratified in order to overturn the

decision.

Eleventh Amendment: The Judicial power of the United States shall

not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

Fifth Point:

The courts like to avoid political questions.

They do not rule on whether a law is good or bad, but whether it is

constitutional or unconstitutional.

The Political Question Doctrine from the Free Dictionary.

An example from a case involving health care reform:

"That a direct requirement for most Americans to purchase any product or service seems an intrusive exercise of legislative power surely explains why Congress has not used this authority before–but that seems to us a political judgment rather than a recognition of constitutional limitations. It certainly is an encroachment on individual liberty, but it is no more so than a command that restaurants or hotels are obliged to serve all customers regardless of race, that gravely ill individuals cannot use a substance their doctors described as the only effective palliative for excruciating pain, or that a farmer cannot grow enough wheat to support his own family.

The right to be free from federal regulation is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local–or seemingly passive–their individual origins,"

- the US Court of Appeals, DC Circuit

Section Two Clause Two

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

This establishes the job description of the Supreme Court. There are two types of court procedures.

Original Jurisdiction – the trialAppellate Jurisdiction – the appeal

The Supreme Court is primarily an appellate court.

We will see next week that the case of Marbury v. Madison was based on the terminology in this

part of the Constitution. The Judiciary Act of 1789 allowed the

Supreme Court to act as a court of original jurisdiction where the

Constitution did not allow it to.

Section Two Clause Three

The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.

This is very similar to the 6th Amendment

It mandates jury trials, and implies that Federal Courts must

exist in each state.

Section Three, Clause One

Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.

This section seems out of place, unless one remembers the

complaints the British had against the Star Chamber.

The judiciary cannot be used as a tool of oppression.

Accusations of treason are limited and very difficult to prove.

Accusations of treason were commonly made against powerful opponents of the king and were

prosecuted in the Star Chamber in order to guarantee convictions.

By tightening up the definition of treason, the courts were less able to be used in a similar manner by

the national government.

Section Three, Clause Two

The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

This limited the punishment that could be issued to traitors, which against limited the incentive to

aggressively prosecute such accusations.

What is not mentioned?

At least two major factors associated with the judiciary are not mentioned

in the Constitution.

Judicial ReviewInterpretation

The court assumes these powers, though they are not explicitly granted

to the institution.

We will cover the development of judicial review in the next section,

as well as the issues associated with how the Constitution ought to

be interpreted.

Texas Judiciary

Article V of the TexasConstitution

31 Sections8,534 Words

The Structure of the Texas Courts

Map

As with the articles establishing legislative and executive powers,

the Texas Constitution provides far more detail about the judiciary

than the U.S. Constitution.

This places limits on judicial powers.

A few highlights

Article 1

The judicial power of this State shall be vested in one Supreme Court, in one Court of Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may be provided by law.

The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.

The design of the Texas judiciary is spelled out in the Constitution.

Map of Texas Appellate Courts

Judges and Justices elected to six year terms.

The governor can appoint judges to office when there is a vacancy.

It has become customary for judges and justices to resign prior

to an election to provide governors the opportunity to appoint

replacements.

Key consequence of judicial elections:

The judiciary is in fact a democratic institution in Texas. Judges have to

run for office, meaning that they must raise campaign funds, often this comes from interested parties

Can justice be bought in Texas?

Contributions for - high court races.

- appellate court races.

Texas Supreme Court and the Texas Business Alliance

Section 1a creates the State Commission on Judicial

Conduct

Section 7a creates the Judicial Districts Board which is responsible for drawing judicial

districts when they are reapportioned.

Most of the Constitution establishes the design, jurisdiction,

qualifications, and electoral processes for all Texas courts and

court officials.

The Federalist Papers

Topics: - permanent tenure

- compensation- jurisdiction

Six of the Federalist Papers discuss aspects of the Judiciary

The Judiciary Department

Text: Federalist #78Wikipedia

Anti-Federalist #78

The Judiciary Continued

Text: Federalist #79Wikipedia

Anti-Federalist #79

The Powers of the Judiciary

Text: Federalist #80Wikipedia

Anti-Federalist #80

The Judiciary Continued, and the Distribution of the Judicial

Authority

Text: Federalist #81Wikipedia

Anti-Federalist #81

The Judiciary Continued

Text: Federalist #82Wikipedia

Anti-Federalist #82

The Judiciary Continued in Relation to Trial by Jury

Text: Federalist #83Wikipedia

Anti-Federalist #83