Unit Judiciary and the Criminal Justice System

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					Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

     Unit 6-- Judiciary and the Criminal
               Justice System
Issue: Is judicial activism desirable?

Explain the five functions of the Judiciary.
   1. Criminal cases - alleged violation of local, state, and federal law. Jury
      a. guilt or innocence
      b. punishment
   3. Civil Cases - a private dispute between 2 parties - asking for:
      a. money, compensation
      b. injunction - to stop in action
          Divorce and child custody arrangements.
          Business partners -- dispute over property, profits, or assets
   3. Judicial Review - power of the courts to determine the constitutionality of
      all B (federal, state, and local) laws and all government actions.
   4. Interpret the constitution or laws.
   5. Establish rules and operating procedures for the courts.

Judicial review, and explain its significance to our democracy
Judicial Review - the power of the courts to determine the constitutionality of
laws and government actions.
    Without this power nothing could prevent the state or national government from passing
      unconstitutional laws and infringing on our rights. The implied power is not specifically
      mentioned in the constitution. - it was established by John Marshall, our 3rd chief justice
      in Marbury v. Madison in 1803
    Must “have standing” to file such a lawsuit:
                 Must have sustained an injury or are in immediate danger of
                    an injury
                         loss of money
                         loss of property
                         loss of freedom or rights
                 Injuries or harm must be substantial.
    If you do not “have standing” case is thrown out.

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

The passive nature of the judiciary and the implications
   Even though the courts may hear of something illegal or unconstitutional that is
   going, on they are powerless to intervene until someone with standing comes
   forward and files a lawsuit. Result: If no lawsuit is filed, the illegal or
   unconstitutional action/law continues indefinitely—perhaps for years. This is
   one of the weaknesses of our court system.

The structure and operation of the federal Court system and how
a case works its way up the system to the U. S. Supreme court.

            6-7,000 cases appealed annually—accepts less than 200

             50,000 cases appealed annually—accept less than 1/2
                                                                              50 State
                        95 1 95 District Courts                                Court
                         250,000+ cases each year
                                                                  10 million+ cases

         State Courts handle many more cases and have their own systems. --
          10 million + cases per year.
         The federal Court system has 3 major levels starting on the bottom,
          they are:
          1. District Courts
          2. Courts of appeals
          3. United States Supreme Court

   District Court
    The vast majority of cases begin in district courts. Our nation has ninety-
      five districts.
    They handle 200,000 + cases a year.
    They are courts of original jurisdiction: courts where the case starts &
      which have the authority to hear the case first. The district court is presided

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

     over by a single judge. Jury trials occur at this level. This is primary
     federal court of original jurisdiction. (That means most federal cases
     begin in the district courts.)
   Court of Appeals
    The United States has twelve circuits with a Court of Appeals in each
    If you lose in the district court, you appeal to the courts of appeals.. Your
     case is only reviewed and no new trial occurs.
    A panel of three judges decides whether the district court decided correctly
     (they uphold or affirm the decision) or if the district court ruled incorrectly
     (they then reverse or overturn the decision).These courts hear about
     twenty thousand appeals a year.
    They only have appellate jurisdiction. -- the power to hear & decide
     cases on appeal from a lower court. A case never begins in the Courts of

   U.S. Supreme Court

      The Supreme Court has nine justices. (Size of Supreme Court is set by
       Congress -- it has been as small as 5 and as large as 10. Its been 9
      This is your last shot of appeal, the highest court of the land. It has both
       Appellate and Original Jurisdiction.
      Some come from appeals and others originate there. (Ex foreign diplomats
       or problems between the states.)
       It receives 6-7,000 requests to review cases annually in the form of
       petitions. They accept only 2-3 % of these. Will only hear around 100 to
       150 cases.
       They decide what to accept by following the rule of four. Four of the nine
       justices must vote for hearing the case. (Four yes votes.)
       Then they issue a Writ of certiorari- a court order from the Supreme
       Court ordering the lower court to send up the records of the case so that
       they can review it.

      Criteria for your case to be accepted on appeal (What the S. Court
       looks for):
          o A Constitutional issue.
          o Conflicting Lower court opinions.
          o Supreme Court disagrees with the lower courts decision

      Can reject the case because it’s a policy issue. (That is an issue best left
       to the other two branches -- executive & legislature -- for settlement.)

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

      When the Supreme Court accepts your case:
       1. Justices will research your case with their law clerks. Most important
          rule they follow: Stare decisions - —“let the (previous) decision stand”
          --base today’s decision on the previous decisions when reviewing
          cases. -- follow precedent
       2. Oral Arguments - your lawyer actually appears before the Supreme
          Court. Each case only receives an hour. Each lawyer (from opposing
          sides) gets 1/2 hour.
       3. Conference - meeting of the nine justices only with no outsiders
          allowed. - In conference, they:
                 b. Review petitions for new cases coming in they might want to
                     hear in the future.
                 c. Discussion Vote: discuss the previously heard cases from the
                     week-Chief justice has opening words discussion proceeds
                     and then in order of seniority of the justices.
                 d. Then there is a vote in reverse order, with newest justice
                     being first and chief justice voting ease.
                 e. cOpinions: assignment and writing of opinions. Tell why they
                     ruled the way they did and explain how they decided that.

       Three Possible Opinions:
            Majority Opinion - written by the winning side. This opinion
             explains to the nation how & why the U.S. Supreme Court ruled on
             the case. This opinion sets guidelines our rules that the lower courts
             must then follow.
            Minority/Dissenting Opinion - written by the losing side and it
             explains how they feel the case should have been decided. They
             criticize the majority opinion and explain how they believe the case
             should have been decided. They are hoping that in the future the
             dissenting opinion will become the majority opinion. As in Plessy vs.
             Ferguson - minority opinion became the majority opinion in Brown
             vs. Board of Education.
            Concurring opinion -The justices who voted in the winning side but
             have different reasons for doing so thus they write a separate
             opinion explaining those different reasons -- the concurring opinion.
             There could be in theory several concurring opinions.

       4. Implementation -.
       (Explain what factors influence the implementation of that Supreme
       Court decision. )

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

             The United States Supreme Court has no power to enforce their
              own decision. They rely on five other groups:
                 1. remand to the lower courts - for district judge to follow
                    guidelines & carry out the decision
                 2. President, as chief executive, can order action. - issue
                    executive orders, make national comments urging
                    compliance, send in federal troops to enforce & (a last resort)
                 3. Congress - Can establish criminal penalties for any violation
                    of the new decision or can offer or deny appropriations for
                    those in a position to violate or follow it. - The “carrot and the
                    stick” approach
                 4. Bureaucracy can cut off federal funds. - This was effective in
                    getting public schools to integrate - example: E.C.I.S.D.
                 5. Public - to a great extent the Supreme Court relies on
                    voluntary public compliance. We are taught to obey the law.
                    And the United States Constitution is the supreme law of the

Federal Judge Selection Process
         Supreme Court Justices all lower court federal judges are appointed by
          the President
         must be approved by Senate. -- by a majority vote
         20% of the nominations to the Supreme Court have failed.
         Appointment is for life
         WHY?
                 o to place them above popular influence and not be influenced
                     by politics
         WHY appointed & not elected?—So that they will not be tempted to
             hand down politically popular decisions, but decisions that are
             legally and constitutionally correct.

Criteria for appointment to a federal judgeship:
       1. Party Loyalty - someone who shares your philosophy. 90% of all
           judges appointed are of the same political party as the president.
       2. Political Philosophy (Liberal or, Conservative, or moderate) B they
           generally share the president’s philosophy
       3. Judicial Philosophy (Two theories of the role of the courts)
           A. Judicial Activism
                  1.       Interpret constitution broadly and flexibly
                  2.       which cases to accept - Accept any cases with issues
                     were ignored by the other two branches.

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

                  3.     Interpretation - occasionally you must reinterpret to
                   adapt the constitution to changing times and society.
                4.       Use their power to further social and economic justice.
         B. Judicial Restraint
                1.       Interpret constitution literally and narrowly (strict)
                2.       which cases to accept: avoid policy questions, and
                   leave those issues to the other two branches. (Example:
                3.       Interpretation - follow precedent and Stare Decisus
                   and try to figure out the framer=s intent.
                4.       Keep your personal biases out of opinions and follow
                   the framer’s intent.
      4. Legal experience, skills, knowledge,
      5. other political considerations - to help gain re-election
             Race
             Sex
             Religion
             Geography
             Age

      Profile of a United States Supreme Court Justice
         British Descent
         Upper Middle Class or Wealthy
         Politically Experienced
       Only two women have ever been appointed (Sandra D. O’Connor and
         Ruth Bader Ginsberg—both still on the Court)
       Only two blacks have ever been appointed (Thurgood Marshall—in
         1967 and Clarence Thomas—who is still on the Court)

Senatorial Courtesy - Is an unwritten rule followed in the Senate, which applies
only when the President is appointing federal district Judges. He must get the
prior approval of the United States Senator of the president’s party in the state
where he is making the appointment. If the president ignores this, the United
States Senator can simply say on the Senate floor: “This nominee is personally
obnoxious to me” and the Senate rejects the nominee this gives Senators the
power to block the appointment of someone they dislike, regardless of

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

Five Methods of Judge Selection Used in The United States
      1.   Partisan elections
      2.   Non-partisan elections (no party label on ballot)
      3.   Appointment by the executive (governor)
      4.   Appointment by the legislature
      5.   Missouri (Merit) Plan

           (Merit/Missouri/retention election Plans—(Used at the state level)
              A vacancy- Board of experts submits a list of qualified nominees
                 to the governor
              Governor chooses and appoints one
              then he or she serves in a shortened term
              after this short term they face the voters in a retention election.
                 Judge runs on his or her own record with no opponent. Voters
                 vote yes or no. If a majority of yes votes, then the judge goes on
                 to serve his/her full term in.
              When each term ends, the judge must face the voters in a
                 retention election. If a majority of voters vote “no” then the
                 process starts over again.

Discuss the advantages of the Missouri (Merit) Plan.
   1. The board of experts screens out unqualified people (a frequent problem
      with elected judges)
   2. The election gives the voters a say (a criticism of the appointive method)
   3. The uncontested election means the candidates run on their record and do
      not have to raise large amounts of money that might compromise their
      honesty & fairness (reduces the corrupting influence of campaign
      contributions, a common criticism when electing judges)

           Influence of United States Supreme Court in the
                         United States History
I Marshall Era
          Named after our third chief justice John Marshall from 1801 B 1835
          (1N) Power of Judicial Review Was Established in Marbury vs.
          Madison in * 1803. And set the precedent in his brilliant opinion so
          persuasively that he makes the judicial branch the umpire of the entire
          governmental system.-- and perhaps the most powerful branch
          Marshall through his opinion, in McCullock vs. Maryland, established
          that the national government, specifically Congress, has implied

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

          powers. This strengthened & expanded the powers of the national

II. Conservative Laize Faire (Hands off) 1885-1937
           Legalized Segregation - Plessy Vs. Ferguson.* “separate but equal”
           Weakened Worker protection laws.
           Weakened Business Regulations- monopolies flourished
           Progressive income tax was declared unconstitutional. Progressive tax
           taxes you more (higher rates) for the higher income. --wealthy weren’t
           paying their fair share.
     Together these four things created injustice, and unfair treatment of workers,
consumers, small businesses blacks and society.

III. Warren Court (1953-69)
          Ended legal segregation (Brown vs. Board of Education)*
          Ended organized school prayer in public schools. (Based on the
          establishment clause. In 1st Amendment)
          established the right to privacy. Unmentioned right in the constitution.
          established the one-person one vote rule, which ended one type of
          Gerrymandering, the drawing of unequal, and unfair district lines.
          Expanded the rights of the accused
             Miranda vs. Arizona & a suspect must be read their rights before
             interrogations otherwise statements are inadmissible
             Exclusionary rule expanded -- illegally seized evidence cannot be
             used in court
             Poor defendant must be provided with a court appointed attorney.
             (Gideon) case
             First amendment rights protects the right to march for any group, no
             matter how disliked or radical, so long as they were peaceful, had
             the right to march.
             weakened the definition of pornography. Protected artistic freedom,
             but allowed more and more explicit materials to be sold.

IV Burger Court (1969-86)
         Nixon appointed 4 of the nine justices. –
      1.    Expanded the right of privacy to include abortion (Roe vs. Wade)
      2.    Expanded civil rights to include busing, affirmative action, & sex
      3.    But weakened the rights of the accused by narrowing the Miranda
         decision and exclusionary rule and supported the death penalty.
      4.    Created local standards in deciding what is pornographic.

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

V Rhenquist Court 1986 - present
        States can place reasonable restrictions on abortion. (Webster-
            Parental notification, restrictions, etc.
        Restricted busing to integrate schools and affirmative action.
        Made job discrimination harder to prove.
        Narrowed Miranda and exclusionary rule. Narrowing the rights of the
        Most unexpected decision --handed down flag burning was protected
        symbolic speech. A liberal decision.
        Ruled the Texas (and all state) sodomy statutes unconstitutional
        (2003)—they violated the right to privacy of the 2 consenting adults who
        were engaging in the “deviant behavior.” A liberal decision.
        Narrowly upheld affirmative action (2003)—although narrowed its use—
        no quotas or special points added to minority college applicants—a
        moderate decision.

         Considered the first conservative majority on the Supreme Court since
          the 1930s - in 60 years.

The checks on the Supreme Court. Who controls the courts?
Checks on the courts
         President appoints all federal judges.
         can issue executive Orders to carry out Supreme Court decisions or not
         back up the Supreme Court.
         Public Statements –to encourage compliance with a Court decision
         Senate has the power to approve all judicial nominees
         can remove them by impeachment. One or two United States Supreme
         Court justices impeached by the House but not convicted by the
         Senate. 11-12 lower court judges have been impeached, convicted and
         removed from the lower courts.
         Pass an amendment to the constitution. - to overturn a Supreme Court
         decision—ex.: 26th amendment lowering the voting age to 18
         $ --cut appropriations to Supreme Court.
         Congress can set the meeting times. ( currently: 9 month session,
         beginning on the first Monday in October and ending in late June) --so
         Congress can limit time in session (and thus limit the number of ruling
         they can hand down.

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

          Change the size of the court, and remove a seat (to deprive the sitting
          president of the opportunity to make an appointment) or expand it
          (giving the sitting president additional opportunities to make
          appointments and change the balance of power on the Court.) Last
          suggested by President FDR in 1937—his proposal was quickly shot
          down in Congress and condemned by much of the public—it was called
          FDR’s “Court Packing Plan”—to create a new liberal majority (because
          the conservative majority had ruled several of his New Deal programs
          Alter/limit/restrict the appellate jurisdiction - & prevent certain issues
          from being appealed the United States Supreme Court.
          Case has to be brought by the public to the courts before the courts can
          rule on an issue the passive nature to the courts.
          Lack enforcement power. Must rely on lower courts, the President, and
          Congress, bureaucracy, and the public.
          Rely on voluntary public compliance to their decisions.

Criminal Justice and Jury system.

Petit Jury
            Trial jury - sits in the courtroom and listens to evidence and hands down
            guilty or innocent verdicts and decides punishment.
Grand Jury
            Decides if there is sufficient evidence to indict you and charge you with
            a crime-& take you to trial (Purpose: protects people from publicly
            motivated trumped up charges also makes sure only best prepared
            cases go to trial -- prevents waste of courts time must have a 3/4th
            majority. (9 of 12) for an indictment
Misdemeanor -minor crime, small fines and a jail sentence
Felony -A serious crime major fines and possible prison sentence.
Criminal Case - A law being violated—someone indicted and court must
determine innocence or guilt.
Civil Case - Dispute between two people or parities. Compensation for an
injustice is typically being asked for. - no law has been violated
Plea Bargain - Plead guilty to a lesser crime for lesser sentence-- reduces
backlog of cases in the court system

Jury Selection
Was chosen from voter registration in the past. Now taken from driver’s license
 Three automatic exemptions:
        65 or older

Federal Government 2305—Unit 6 lecture notes-The Federal Judiciary

          Responsible for care of a child under 10
          Full time college student
 Size of jury -Federal-12; States can have juries as small as 6. In Texas lower
          courts are six member juries. District courts are twelve member juries.
 Verdicts had to be unanimous. Or a hung Jury. Non-unanimous verdicts are
          now acceptable. Ten of twelve or five of six are allowed; in Texas civil
          cases rare non-unanimous, but unanimous verdicts are required in
          criminal cases.
 Capital offenses (where death penalty is possible) cannot waive jury trial. You
          must have a jury.
 By law, jury duty cannot cause you to lose your job-- but don’t have to be paid
          for time off.
To be a juror you must be
          U.S. citizen
          Legal resident of the state

Criticisms of juries
         most people don’t want to serve.
         Cost is greater
         Media coverage is so extensive that it is not always possible to find 12
         objective jurors in highly publicized cases.
         Jurors more easily confused than is the trial judge by lawyers for either