The CourtsChapter 13

The Constitutional Judiciary Tenure is necessary for independence

Hamilton, Federalist #78 – “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.”

Irreducible salaries strengthen independence Hamilton, Federalist #79 – “In the general course of human nature, a

power of a man’s subsistence amounts to a power over his will.”

Overall – Judicial independence is necessary for the supremacy of the Constitution

Common Law Tradition Common Law

Judge-made law that originated in 11 th century England from decisions shaped according to prevailing custom New laws were created as unique situations and cases were presented

Decisions were applied to similar situations and gradually became common to the English nation

Precedent The practice of deciding new cases with reference to former decisions

A cornerstone of the English and American judicial systems This is embodied in the doctrine of stare decisis

“to stand on decided cases” Judges are obligated to follow the precedents set previously by their own courts or

by courts of higher authority

Sources of American Law The body of American law includes:

The Constitution

State Constitutions

Statutes passed by legislative bodies

Administrative law

Case law

Sources of American Law Statutes

Laws enacted by federal or state legislatures Increasingly important in defining the rights and obligations of individuals Federal examples: federal taxation, hazardous waste, environmental

protection State examples: criminal codes, commercial laws, state taxation

Cities and counties also pass statutes called ordinances May deal with issues such as zoning proposals and general public safety

Much of the work of the courts today deals with interpreting statutes and applying them to specific cases

Sources of American Law Case Law

Judicial interpretations of common law principles and doctrines

Includes interpretations of constitutional law, statutory law, and administrative law

In the United States, case law is ultimately decided by the Supreme Court, if necessary They decide what a constitutional provision or a statuary phrase means In doing so, they establish case law

The Federal Court System The United States has a dual court system

State Courts Federal Courts

Each of the 50 states, as well as the District of Columbia, has its own independent system of courts

Overall, there are 52 court systems in the country

The Federal Court System Basic Judicial Requirements

Certain requirements must be met before a case can be brought before any court

Jurisdiction The authority of a court to decide certain cases Not all courts have the authority to decide all cases

Where a case originates and what its subject matter is are two key issues Geographic areas dictate jurisdiction in state courts However, a state’s highest court has jurisdictional authority over all residents

in the state

The Federal Court System Basic Judicial Requirements

Jurisdiction The limiting power of the Constitution limits the jurisdiction of the federal

courts Cases must involve either a federal question or diversity of citizenship

Federal Question A question that has to do with the U.S. Constitution, acts of Congress, or treaties

Diversity of Citizenship The condition that exists when the parties to a lawsuit are citizens of different states

Ex. Resident of Texas v. Resident of Arkansas Could also be when the parties are citizens of a state and citizens or the government

of a foreign country Ex. Resident of Texas v. Resident of the United Kingdom

Additionally, $75,000 or more must be in controversy to meet this requirement for jurisdiction

The Federal Court System Basic Judicial Requirements

Standing to Sue Another basic judicial requirement that requires a party to have a

sufficient “stake” in a matter to justify bringing suit Party must have suffered or threatened by a harm, as a result of the action

that led to the dispute in question This includes both criminal and civil matters

A justiciable controversy is also required for standing to sue A controversy that is real and substantial As opposed to hypothetical or academic Basically, you cannot use the court system to “test the legal waters” or give

advisory opinions on hypothetical questions

Supreme Court of the United States

Court of AppealsCourt of Appeals for the Federal

Circuit

District Courts

Territorial Courts

Tax Courts

Court of International

Trade

Court of Federal Claims

Court of Veterans Appeals

Bankruptcy Courts

The Federal Court System

The Federal Court System Types of Federal Courts

U.S. District Courts Trial Courts – courts in which most cases begin

District Courts are courts of general jurisdiction When a court can hear cases involving a broad array of issues Federal cases involving most matters are typically heard in district courts

Other District Courts are courts of limited jurisdiction Courts that can try cases involving certain types of claims

Tax claims or bankruptcy claims

There is at least one federal district court in every state The number of judicial districts change over time due to population changes

and case loads

The Federal Court System Types of Federal Courts

U.S. District Courts Appellate Courts

A party who is dissatisfied with the decision of a district court can appeal the case to the appropriate U.S. Court of Appeals

Many federal administrative agencies and most executive departments employ administrative law judges (ALJs) who resolve disputes arising under the rules governing their agencies Examples: EPA, Social Security Administration, FBI, etc. However, if a party is dissatisfied with the outcome of an administrative

hearing and all internal agency appeals have been exhausted, a party may have a right to file an appeal in a federal district court

The Federal Court System Types of Federal Courts

U.S. Court of Appeals There are 13 (circuit) courts of appeals

12 hear cases from their respective geographic districts The Thirteenth Circuit (Federal Circuit) has national appellate jurisdiction over certain types of

cases such as patent law and cases where the U.S. government is a defendant

How the courts of appeals operate They do not conduct another trial A panel of 3 or more judges review the record of the case on appeal and determine whether the

trial court committed an error They usually do not look at questions of fact (whether a party actually did not something or not)

They are concerned with questions of law Whether something a party did can be protected under the Constitution, previous case law, etc.

A party can petition the U.S. Supreme Court to review an appellate court’s decision The likelihood of the Supreme Court hearing a case on appeal is slim Usually means that an appellate court’s decision is final

The Federal Court System Types of Federal Courts

The U.S. Supreme Court The major function of the court is as a last chance appellate court

It can exercise original jurisdiction (act as a trial court) in certain cases such as: Cases affecting foreign diplomats Cases in which a state is a party

The Supreme Court can review a state supreme court decision only if a federal question is involved

Terminology to Know Plaintiff – the person or organization that initiates the lawsuit Defendant – the person or organization against whom the lawsuit is filed

Interest groups play an important role in our judicial system because of litigation Engaging in a legal proceeding or seeking relief in a court of law They assist in litigating cases involving race/gender based discrimination, business

matters, civil liberties, etc.

Interest groups also frequently file amicus curiae briefs A legal argument support a desired outcome in a particular case although they are not

directly involved in the litigation Also known as “friend of the court” briefs

Class-action lawsuits A lawsuit filed by an individual seeking damages for “all persons similarly situated…” Ex. Product manufacturing defects

The Supreme Court at Work Of the total number of cases that are heard each year in U.S. Courts, the Supreme Court

hears less than 1 in 4,000

Types of cases: Freedom of speech Right to bear arms Finance Capital punishment Rights of criminal suspects Affirmative action Abortion Property rights Sexual harassment States’ rights Pornography Religious freedom

The Supreme Court at Work How the Court Decides to Hear Cases

There is no absolute right of appeal to the Supreme Court – it is entirely discretionary The Court ultimately makes the decision

Factors that Bear on their Decision If a legal question has been decided differently by lower courts, it may need

resolution by the highest court A ruling may be necessary if a lower court’s decision conflicts with an existing Supreme Court

ruling Could the issue have significance beyond the immediate case

National government cases The solicitor general typically asks to the Court to take cases involving the government He/she decides which cases the government should ask the Court to review and what

position the government should take on the cases

The Supreme Court at Work Granting Petition for Review

If the Supreme Court decides to hear a case, it will issue a writ of certiorari An order issued by a higher court to a lower court to send up the record

of a case for review

Rule of Four – the Supreme Court will not issue a writ unless at least four justices approve of it

The Supreme Court at Work Court Procedures

The Court does not typically hear evidence (similar to all appellate courts)

Attorneys for the parties are permitted to present oral arguments Arguments presented in person by attorneys to an appellate court Each attorney presents reasons to the court why the court should rule

in his/her client’s favor

The Supreme Court at Work Decisions and Opinions

When the Court reaches a decision on a case, its opinion is written The statement by a judge or court reached in a case The opinion sets forth the applicable law and details the reasoning on

which the ruling was based

If a decision of a lower court is affirmed, the Supreme Court declares the lower court’s ruling is valid and must be enforced

If a decision of a lower court is reversed, the Supreme Court annuls, or voids, a lower court’s ruling based on some error or irregularity

The Supreme Court at Work Decisions and Opinions

Sometimes, the Supreme Court will remand a case Send the case back to the lower court for a new trial or other proceeding

The Court’s written opinion sometimes is unsigned This is called an opinion per curiam (“by the court”)

Typically, the Court’s opinion is signed by all the justices who agree with it When in the majority, the chief justice decides who writes the opinion When the chief justice is in the minority, the senior justice on the

majority side assigns the opinion

The Supreme Court at Work Types of Opinions

Unanimous opinion – a court opinion on which all judges agree

Majority opinion – a court opinion reflecting the views of the majority of the judges

Concurring opinion – a separate opinion prepared by a judge who supports the decision of the majority of the court but who wants to make or clarify a particular point Or to voice disapproval of the grounds on which the decision was made

Dissenting opinion – a separate opinion in which a judge dissents from (disagrees with) the conclusion reached by the majority of the court and expounds his or her own views about the case

The Supreme Court at Work Dwindling Caseload

Some complain that the Supreme Court reviews too few cases each term, thus giving the lower courts less guidance on important issues

Examples: 1982-83 term – 151 cases Early 2000s – 70 and 80 per term 2010 – 92 per term

Reasoning Some scholars indicate that the growing conservatism of the judges sitting on the

lower courts is responsible Many Republican presidents appointing federal judges from 1980 – 2008

As a result, the government loses fewer cases in the lower courts, which lessens the need for the government to appeal the rulings through the solicitor general’s office

Selection of Federal Judges All federal judges are appointed pursuant to Article II, Section 2 of the

Constitution The president appoints the justices of the Supreme Court with the advice and

consent of the Senate

2 step process 1. president nominates a potential justice 2. Senate Judiciary Committee investigates and either approves/disapproves the

potential justice

There are more than 850 federal judgeships in the United States Once appointed, a person holds the job for life They can either resign, retire voluntarily, or die In rare cases, a judge may be removed by impeachment for illegal conduct

Background of U.S. Supreme Court Justices (to 2011)

Occupational Position before Appointment

Total Number of Justices = 112

Federal Judgeship 31

Private Legal Practice

25

State Judgeship 21

Federal Executive Post

9

U.S. Attorney General

7

U.S. Senator 6

State Governor 3

Deputy/Assistant U.S. Attorney General

2

U.S. Solicitor General

3

U.S. Representative

2

Other 3

Religious Background

Number of Justices

Protestant 83

Roman Catholic 14

Unitarian 7

Jewish 7

No religious affiliation

1

Age on Appointment

Total Number of Justices

Under 40 5

41 – 50 33

51 – 60 60

61 – 70 14

Political Party Affiliation

Total Number of Justices

Democrat 46

Republican 44

Federalist (to 1835)

13

Jeffersonian Republican (to 1828)

7

Whig (to 1861) 1

Independent 1

Educational Background

Total Number of Justices

College Graduate 96

Not a College Graduate

16

Gender Total Number of Justices

Male 108

Female 4

Race Total Number of Justices

White 109

African American 2

Hispanic 1

Judicial Activism and Restraint Judicial Activism

A doctrine holding that the federal judiciary should take an active role by using its powers to check the activities of governmental bodies when those bodies exceed their authority

Discovering the “original intent” of the Founders not possible Must read the Constitution in light of contemporary meaning

Judicial Restraint A doctrine holding that the courts should defer to the decisions made by the

elected representatives of the people in the legislative and executive branches

Jurisprudence of Original Intention – we should judge policies in light of principles, rather than remold principles in light of policies This was touted as a “fix-all,” so the S.C. could avoid charges of incoherence and

partisan politics

Judicial Activism, Coffins, and Yogurt Judicial Activism “Yogurt Argument”

If the Founders had been eating yogurt for over 200 years, they might approve of a “different flavor” of interpretation

Judicial Restraint “Coffin Argument” If the Founders were pried out of their coffins after 200 years of

sleep, they would frown upon new interpretations and constructions of the Constitution “George Washington is probably rolling in his grave right now…”

Strict vs. Broad Construction Strict Construction

A judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular law

Often associated with conservative political views Those that adhere to this liken the Constitution to a plain text document only

Justice Scalia, “the Constitution is not a living organism, it is a legal document. It says something and does not say other things.”

Broad Construction A judicial philosophy that looks to the context and purpose of a law when

making an interpretation Often associated with liberal political views Those that adhere to this liken the Constitution to a “living document”

Judicial Review The power of judicial review is not mentioned in the

Constitution

It was established in Marbury v. Madison The Court declared that a law passed by Congress violated the

Constitution At the same time, the Court declared that judicial review was a power

that was claimed by the judiciary “It is empathetically the province and duty of the Judicial Department to

say what the law is. Those who apply the rule to a particular case must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.”

Judicial Review Logic of Judicial Review

Why have judges take an oath to protect the Constitution if they cannot invalidate laws in contradiction of that document?

If two laws conflict, it’s the Supreme Court’s job to mediate