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The Judiciary


									                                  CHAPTER 14: THE JUDICIARY

I.   The scope of judicial power…based on Judicial Review

     a. The judicial process is based on the adversary system:

             i. Defendant: person/party accused
            ii. Plea Bargain: pleading guilty to a lesser offense to avoid standing trial
           iii. Plantiff: party investigating lawsuit, must have experienced or be in danger of
                experiencing direct & personal injury

     b. 2 types of law (1) Criminal (2) Civil (between individuals/rights)

     c. Judicial Federalism:
            i. The United States has a duel judicial system – (1) Federal Courts (2) State Courts



                  3. Federal judges decide only Justiciable Dispute: dispute grown from actual cases or
                     controversies capable of legal settlement

                                                                                          Wood (Fall 2011)
II.    Federal Justice

       a. Federal courts of general jurisdiction
             i. District courts: “workhorses of the federal judiciary” – the trial courts of Original



                     3. Assisted by federal magistrate judges:


                     4. District judges are bound by the precedents of higher courts.
                     5. Except for the few cases that may be taken directly to the Supreme Court, a final
                        decision of a district court is reviewable by a court of appeals

              ii. Courts of appeals
                    1. Have only appellate jurisdiction:

                           a. 11 Circuits (Page #369) – Include all states and U.S. Territories.
                           b. #12 – Washington D.C.
                           c. #13 – Court of Appeals for the Federal Circuit
                     2. Less than 1% of the cases from these courts are looked at carefully by the Supreme
                     3. Powerful policy makers
                     4. Bound by Precedent: decisions made by higher courts such as Circuit Court of
                        Appeals or Supreme Court that is binding to all other federal courts

       b. State and federal courts
              i. Each state maintains a judicial system of its own; state courts have sole jurisdiction to try all
                 cases not within the judicial power the Constitution grants to the United States

              ii. Except for the limited habeas corpus jurisdiction of the district courts,
                            a. Writ of Habeas Corpus: court order requiring explanation to a
                                judge why a prisoner is in custody (release if it’s unconstitutional)

III.   Prosecution and defense
       a. Federal lawyers

                                                                                               Wood (Fall 2011)
             i. On the federal level, the job of prosecution falls to the Department of Justice: the attorney
                general, the solicitor general, the 94 U.S. attorneys, and some 1,200 assistant attorneys
            ii. The president, with consent of the Senate, appoints a U.S. attorney for each district court
      b. Prosecutors and the solicitor general
             i. Prosecutors decide

             ii. Prosecutors

            iii. The solicitor general

            iv. When the solicitor general petitions the Supreme Court and asks it to review an opinion of a
                lower court, the Court is likely to do so
             v. The assistant attorney general heads up the Office of Legal Counsel, which works closely
                with the Office of the Counsel to the President located in the White House.

      c. Federal defense lawyers
             i. About half of the judicial districts use the public system to provide lawyers for poor
                defendants in the criminal trials
            ii. The Legal Services Corporation (LCS):

IV.    The politics of judicial selection
      a. The Senate: advice and consent


            iii. A candidate’s political orientation is the major factor in determining how he or she will vote
                 on the cases that come before the court

      b. The role of party, race, and sex

             ii. Almost half of Clinton’s appointees during his first term were women or minorities

      c. The role of ideology

                                                                                              Wood (Fall 2011)
            ii. In appointments to the Supreme Court, the policy orientation of the nominee is likely to be
                foremost among presidential concerns

     d. The role of judicial philosophy

            i. The Supreme Court’s role of judicial restraint versus judicial activism


     e. Judicial longevity and presidential tenure
            i. Because federal judges serve for life…

     f. Reforming the selection process
           i. Changing the numbers-

            ii. Changing the jurisdiction-

V.   How the Supreme Court operates – Session: First Monday in Oct to end of June

     a. Which cases reach the Supreme Court?
           i. All appellate cases come before the Court by means of discretionary writ of certiorari:

                  * can also petition In Forma Pauperis to avoid court fees

            ii. The crucial factor in determining whether the Court hear a case is its importance to the
                operation of the government system as a whole
           iii. The Court accepts cases under the rule of four :

           iv. Denial of a writ of certiorari does not mean that the justices agree with the decision of the
               lower court, nor does it establish precedents

           v. Docket, or the agenda of potential cases is set

                                                                                            Wood (Fall 2011)

b. Briefs and oral arguments
        i. Before a case is heard in open court, the justices receive printed briefs, in which each side
           presents legal arguments, historical materials, and relevant precedents
       ii. The Court may receive briefs from amicus curiae (individuals or organizations or
           government agencies that have an interest in the case and claim they have information of
           value to the Court)
c. Behind the curtains: the conference
        i. Wednesday afternoons and all day Friday the justices meet in conference
       ii. Conferences are both collegial and substantive, informal and involve vigorous give-and-
d. Opinions of the Court, aka “Opinions”

       ii. Important function of opinions is to instruct the judges of all other state and federal courts in
           the United States on how to decide similar cases in the future
      iii. Assigning opinions
              1. l


                                                                                         Wood (Fall 2011)
                   3. dissenting opinions: disagree with majority
                   4. concurring opinions: agree with majority but different reasoning
            iv. Circulating opinions
                   1. The opinion must win the support of at least four
                   3. Two weapons justices can use against their colleagues are their votes and their
                       willingness to write separate opinions attacking a doctrine the majority wishes to see

      e. The powers of the chief justice

             ii. the ability of the chief justice to influence the Court has varied

      f. After the lawsuit is over
              i. As a rule, the Court does not implement its own decision but remands, that is, sends back
                 the case to the lower court with instructions to act in accordance with the Court’s opinion;
                 the lower court has considerable leeway in interpreting the Court’s mandate
             ii. The impact of a particular ruling announced by the Court on the behavior of those who are
                 not immediate parties to a lawsuit is even more uncertain
            iii. Many important decisions require further action by administrative and elected officials
                 before they become the law of the land, yet sometimes Supreme Court decisions are
                 simply ignored
            iv. The most difficult Supreme Court decisions to implement are those that require the
                 cooperation of large numbers of officials

      g. Limits on Judicial Action
            i. Stare Decisis: rule of precedent – binds judges when same question in presented in the
                future. The Supreme Court can reserve decisions it does not want to follow.

VI.   Judicial power in a constitutional democracy
      a. The great debate over the proper role of the courts

             ii. Critics of activism contend for that last half century the federal courts, in their zest to protect
                 people, became unhinged from their political mooring in the political and constitutional

            iii. Others claim the debate between judicial restraint versus judicial activism oversimplifies the
                 choices; rather, judges should take a leadership role in some areas but a restrained role in

      b. The people and the court
            i. Correlation between public opinion and judicial decisions

                                                                                                 Wood (Fall 2011)

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