• 1. Dual Court System – National judiciary has more than
120 courts and the 50 States have thousands of courts.
• 2. Inferior courts – lower federal courts beneath the Supreme Court.
• 3. Jurisdiction – authority of a court to hear a case.
• 4. Exclusive jurisdiction – cases that can be heard only in the federal courts.
• 5. Concurrent jurisdiction – cases that can be tried in either federal or
State courts. [Like disputes among citizens of different States]
• 6. Plaintiff – the person who files suit.
• 7. Defendant – the person who the complaint is against.
• 8. Original jurisdiction – a court in which a case if first heard.
• 9. Appellate jurisdiction – a court that hears a case on appeal.
• 10. Docket – a court’s list of cases to be heard.
• 11. Judicial Review – power to decide the constitutionality of an act of
government, whether executive, legislative, or judicial.
• 12. Marbury v. Madison – case that established judicial review of the
• 13. Writ 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 – 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. Brief – written documents filed with the Court before
oral arguments begin.
• 16. Amicus 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 opinion – Opinion of the Court.
• 18. Dissenting opinion – written by those justices
who do not agree with the Court’s majority decision.
• 19. Precedents – examples to be followed in similar cases
as they arise in the lower courts or reach the Supreme Court.
• 20. Concurring opinion – adding or emphasizing a point that
was not made in the majority opinion.
journalists 40 seats are
250 seats will be About 75 seats are
available to the
for lawyers who have
most have already practiced before the
been given to court.
congress, VIPs &
Outside the chamber,
there are up to 80
seats for members of
the Court bar. An
additional 84 seats
will be behind a metal
screen on 1 side of
the chamber for
• The federal judiciary is the guardian of the constitution and is the ultimate
protector of the rights of individual citizens.
•1 It is the judiciary that says what the law is. They interpret and apply the law.
• There are two kinds of courts.
• 1. Federal: 94 Federal trial courts are called District Courts; a person may
appeal a verdict of that court to one of the 12 Circuit Courts of Appeals, and
then to the Supreme Court. The federal system includes the Tax Court.
• 2. State: States have thousands of trial courts. Texas has 2,500, ranging
from county courts to State Supreme Courts. State courts deal with
specific areas of the law, such as domestic relations, traffic and criminal
offenses. Unless constitutional issues are involved, a State’s supreme
court is the final appeal.
• Chapter Objectives:
• 1. The basic role of the judiciary [system of national courts].
• 2. The structure and function of the courts.
• 3. The role of the Supreme Court as the highest court and the
significance of judicial review in our system.
• 4. The roles of special courts [like the Claims court].
• 5. Selection of federal judges.
• Section Focus:
• 1. How the national court system was established.
• 2. What two types of cases the federal courts decide.
• The Constitution [Article III], created the national
judiciary in a single sentence:
– 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.
Andrew Hamilton thought that even with judicial review, the
judiciary would be the weakest of the three branches
because it lacked the strength of the sword or the purse.
They had neither FORCE nor WILL, only judgment. John
Marshall was the “Babe Ruth of the Supreme Court.”
2 A Dual Court System – over 120 federal courts and the State courts.
National Court System – the Supreme Court and over 100 federal courts.
State Court System – each of the 50 States has its own system of courts
running into the thousands.
I. THE NATURE OF THE JUDICIAL SYSTEM Civil Court
• 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
between two contending points of view.
• In reality, most cases never reach trial
because they are settled by agreements
reached out of court.
• There are two basic kinds of cases,
criminal law and civil law.
• In criminal law, an individual is charged
with violating a specific law; criminal law
provides punishment for crimes against
society (or public order).
• Civil law does not involve a charge of
criminality; instead, it concerns a dispute Criminal
between two parties and defines Court
relationships between them.
• The vast majority of cases (both civil
and criminal) involve state law and are
tried in state courts.
II. THE STRUCTURE OF THE FEDERAL
• The Constitution is vague about the
federal 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 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 appeal,
94 federal district courts, and
thousands of state and local courts.
• Congress has also established some
legislative courts (such as the Court of
Military Appeals, the Court of Claims,
and the Tax Court) for specialized
purposes, based on Article I of the
• 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.
THE SUPREME COURT
A DUAL COURT SYSTEM:
THE CONSTITUTION COURTS • There are two court systems in the US:
1. 120 federal courts
12 US Courts 94 District 2. The 50 states have courts that number in
of Appeals Courts the thousands.
• State courts hear most of the cases (federalism)
US Courts US Court of • Two Kinds of Federal Courts:
1. 3 Constitutional Courts: Federal Courts formed
of Appeals for the International
Federal Circuit Trade under Article 3 of the Constitution to exercise
the Judicial Power of the United States. They
THE SPECIAL COURTS
are the Supreme Court, courts of appeals,
US Tax district courts, & U.S. Court of International Trade.
Court 2. 4 Special Courts: Do not exercise broad “Judicial
Power of the United States”. They were created
out of some expressed power given to them by
Courts congress in Article 1 of the Constitution. Hear a
of the District Territorial
much narrower range of cases.
of Columbia Courts
U.S. Courts of Federal Claims, U.S. Courts of
Appeals for the Armed Forces, U.S. Courts of
US Courts Appeals for Veterans Claims, Courts of the
of Appeals for of Appeals for District of Columbia, Territorial Courts, U.S.
the Armed Forces Veterans Claims Tax Court [hears tax disputes].
Participants in the judicial system
• Federal judges are restricted by the
Constitution to deciding cases or
• Courts may decide only justiciable
disputes, which means that conflicts
must be capable of being settled by
• Every case is a dispute between a
plaintiff and a defendant-the former
bringing some charge against the
• Litigants (the plaintiff and the
defendant) 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 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 22, stated
the “want of a judiciary power [as a]
circumstance which crowns the defects of the
• He also said, “Laws are a dead letter without
courts to expound and define their true
meaning and operation.”
• The Constitution creates a national judiciary
for the US in one sentence: “The judicial Power
of the United States shall be vested in one
4 Supreme Court, and in such inferior courts as
the congress may from time to time ordain and
establish.” They are beneath the Supreme Court. ALEXANDER HAMILTON
• Congress also has the expressed power “to
constitute Tribunals inferior to the supreme
Court.” (Art. 1, Sec. 8 Cl. 9.
1. What is the jurisdiction of the federal courts?
2. What are the roles of other constitutional courts?
• The constitutional courts hear most of the cases tried
in federal courts
•6 They have jurisdiction (the authority of a court to hear a
case) over most federal cases
• Article III, section 2 says federal courts may hear a case
because of either:
1. the subject matter
2. parties involved in the case
• a. an officer or agency of the U.S.
• b. an official [ambassador, consul] of a foreign
• 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
• All cases not heard by the federal courts are heard by the
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 Al Capone:
hear the case. Tax Evasion
EXCLUSIVE & CONCURRENT JURISDICTION:
7 • In some cases, federal courts have exclusive jurisdiction
(can only be heard in federal court).
• Examples: 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.
8 • There are also concurrent cases (tried in either State or federal court).
Most common example is disputes involving citizens from different states
(known as cases in diverse citizenship).
9• Civil Law –dispute between 2 or more individuals or between individuals & the 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…
10 • the plaintiff (one who files suit) may choose the proper state
11 • under certain circumstances, the defendant (one who complaint is
against) can have case moved to federal court in some cases.
• A court that first hears a case is
12 said to have original jurisdiction.
• A court that hears a case from a
13 lower court has appellate jurisdiction.
The appellate court can uphold,
Concurrent overrule, or modify the decision of a
Jurisdiction lower court.
In the federal court system, the
94 district courts have original
jurisdiction, the Courts of Appeal
have appellate jurisdiction, and the
Supreme Court can exercise both.
• Constitution lays out how judges are
chosen, their terms, and pay… it says NOT CONFIRMED
that the President, “shall nominate, and Judge Robert Bork
by and with advice and consent of the 1987
Senate the judges of the supreme Court”
• This has become the process for all
• The president may feel free to name
anyone to the federal bench anyone the
senate will confirm (Senatorial privilege
plays a big role - president almost always
chooses someone recommended by a
senator from their own party from state
• 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 consideration
when appointing judicial selections. Judge Sonia Sotomayer
• From early in U.S. history, President’s have most
often chosen judges from their own political parties
• Because federal judges have lifetime appointments,
(see Federalist # 78) they select judges who reflect
their own legal, political, economic and social views
• Judicial activism and Judicial restraint play a part in
selection - especially on the Supreme Court!
• Judicial activists - believe that judges should use
his/her power to make bold policy decisions to
promote a social end.
• Judicial 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 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 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 impeached… of them, 7 have been
removed by the Senate (No Supreme Court Justice has ever
been removed from office, although Samuel Chase was tried
but not convicted by the Senate in 1805).
• 3 most recent:
1. Harry E. Claiborne, District Ct. of NV for filing false
income tax returns (1986).
2. Alcee 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 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 generous retirement..
May retire at 70 if serve 10 years… may get full pension at 65
if serve 15 years… Chief Justice may called back to Rep. Alcee Hastings,
temporary duty in lower federal court. (D-FL)
As of 2009:
Federal trial judges: $169,300
Appellate judges: $179,500
Associate Supreme Court: $ 208,100
Chief justice $ 217,400
All were permitted to earn an additional
$21,000 a year for teaching.
•Judges primarily deal with deciding cases…
administrative matters of the court are performed Supreme Court Clerks,
by clerks, deputy clerks, bailiffs, court reporters, 2004-2005
stenographers, and other court personnel.
• Judges of the 94 District Courts appoint at least
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
bankruptcy judge who are appointed for 14 year terms
by federal court of appeals judges and hear an array
of bankruptcy cases. Johnny
• The president and Senate appoint a U.S. Attorney Sutton
and their deputies to prosecute cases (4 year term).
They work with the FBI and represent the US in all United
civil cases. States
• The President and Senate also select a U.S. Marshal Attorney
(four year term) to serve in district courts who make
arrests in federal criminal courts, hold accused in Western
custody, secure jurors, serve legal papers, keep order District of
in courts, and execute court orders and decisions. Texas
They respond to riots, mob violence, civil disturbances
and terrorist attacks.
The 94 DISTRICT COURTS:
• 642 judges handle more than
300,000 cases per year.
14 District courts are the “workhorses”
as they handle 80% of federal caseload).
• Created .by .Judiciary. Act. Of. 1789.
FEDERAL 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
DISTRICT COURT JURISDICTION:
• District courts have “original 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
• Hear wide rage of criminal cases (defendant
is accused of committing federal crime) and
civil cases (non-criminal matter, such as
dispute over terms of a contract or patent
• Criminal case examples: May hear cases
involving bank robbery, mail fraud,
counterfeiting, mail fraud, tax evasion…
• Civil 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
15 The Courts of Appeals were created by Congress in 1891. They were established as
“gatekeepers” to relieve the burden on the Supreme Court (at the time, the Supreme Court
was 3 years behind its docket)
• There are now 12 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 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 JURISDICTION:
16 Courts of appeal only have appellate
jurisdiction (hearing cases appealed
from lower federal courts)
• Most come from district courts, but
could also come the U.S. Tax Court or the
• 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
Federal District Court
Federal Appeals Court
Puerto Rico Virgin Islands
Judicial Circuit - District Court Regions
*Total civil and criminal cases
US Court of International
Trade, New York, NY
Congress created 2 other Article III courts…
17 THE COURT OF INTERNATIONAL TRADE:
• 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 judges, one of which is chief judge.
• Hears cases arising from tariff and trade issues.
• 3 judges sit on a trial and hear cases at major ports
including New Orleans, Boston, New York, and San
• Cases may be appealed to the Court of Appeals for
the Federal Circuit.
The Court of Appeals for the Federal Circuit
• Created in 1982 to centralize and speed up the
handling of appeals in civil cases.
• Unlike other courts (except Supreme Court) it has
• Hears cases 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 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 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 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
THE COURT OF FEDERAL CLAIMS:
• Under no circumstances can the government be
sued… unless Congress grants it’s consent to being
• 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.
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.
•THE COURT OF 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 Captain William Calley
was created (originally the Court of Military Appeals),
to review serious court martial convictions of military
personnel. My Lai Massacre
• 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
Six Nazi • The President has the authority to set
saboteurs up military tribunals by executive order
captured in the • A military tribunal is a kind of military
US and court designed to try members of enemy
executed in forces during wartime, operating outside
1942 the scope of conventional criminal and
• President Bush attempted to do so
The Nuremberg to try the members of Al-Qaeda in
Trials were a series Guantanamo Bay starting in 2002.
of trials most
• But, the Supreme Court severely
notable for the
prosecution of limited the Bush administration’s power
prominent members to do so… all of the pending tribunals
of the leadership of
have been stopped.
• In 1942, FDR ordered military tribunals
for 8 Nazi saboteurs caught in the U.S.
Al-Qaeda who had plans to hurt the war effort in
prisoners at a the county.
holding facility • 6 were found guilty and executed; the
at Naval Base, other 2 turned on their coconspirators
Guantanamo and received long jail sentences.
THE 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
• 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
THE 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
• Appeals go to the Federal Courts of Appeals.
18 The Supreme Court [only court created
by the constitution] is made up of nine
19 members; the Chief Justice and
eight Associate Justices.
The Supreme Court serves as the
final court of appeals. It hears
cases that appealed from federal
and State courts, but they choose
which cases to hear. In recent Blindfolded
years, the Supreme Court chooses lady with
among an average of 8,000 cases. scale…
It usually puts about 80-120 on its
docket (a list of cases to be heard). Justice is
The decision to hear cases is based blind, sees no
upon the “Rule of Four” (if 4 justices
believe that the case is worth hearing, it is
placed on the docket).
20 Six justices must be present for a
case to be decided.
Supreme Court cases rely on a
simple majority (5-4). There is
no other court of appeal-
the Supreme Courts’ major
function is to determine the
constitutionality of laws.
If they decide a law is
unconstitutional, there is no
where else to go!
BUT… Congress may modify
a law to make it
constitutional, or they may
propose an amendment to
the Constitution making the
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 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 “constitutionality”, 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
appellate jurisdiction and original jurisdiction.
… but most come through appeals.
• According to the Constitution, there are only 2
situations when the Supreme Court can have
1. Those cases to which a State is a party.
2. Those affecting ambassadors, other public
22 ministers, and consul. So it does have
original jurisdiction in these cases.
• The vast majority of cases heard have
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 substantial federal question. "
• 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” 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 120-150 cases per year. 23
24 Most cases [90%] get to the Supreme Court by writ of certiorari (“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” 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. 25 Clerks are legal assistants who do much of the research for the justices.
Federal District Court Federal Appeals Court US Supreme Court
Step 1 Step 2 Case is appealed to Supreme Court Step 4
Case is filed in Case is appealed The Court either Supreme Court
Federal Allows lower court ruling to stand
to the federal Remands case to lower court rules on the case
District Court court of appeals Agrees to hear case
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.
The clerks screen all petitions that come to the Court. When they find deserving
26 ones, they are put on a DISCUSS LIST & are considered if they pass the “rule of 4.”
• 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 convene
at 10:00AM, Monday through
Wednesday (& sometimes
• Lawyers generally have
30 minutes to make their
Each Justice usually
appoints four law clerks,
many of whom are the
cream of Ivy League law
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
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.
• 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
curiae (friend of the court) which are
filed by people or groups not involved,
but have a substantial interest in the
case. 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
• The solicitor general also decides
which cases the government should
ask the Supreme court to review and
what position the U.S. should take in
Solicitor General Paul D. Clement
THE COURT IN CONFERENCE:
• On Wednesdays and Fridays, the
Supreme Court meets to discuss the
cases they have heard in secrecy.
• The Chief 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”, they
usually debate the case.
• One-third of cases are unanimous,
but most are divided… particularly in
the current court.
• This demonstrates the great degree
U.S. Supreme Court, Justices'
of controversy attached to supreme Conference Room
27 The Court sits [a “sitting”] for a term of about 9 months each year, from the
1st 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 oral
arguments. They stand behind a lectern that has two lights attached. A
white light flashes 5 minutes before time is up. When the 30 minutes is
up & the red light goes on, the lawyer must stop immediately,
28 The lawyers also prepare written BRIEFS – detailed and systematic
arguments that often run to hundreds of pages. They influence the Justices
in reaching their decisions and writing their opinions.
• On Fridays, the Justices confer and try to decide the disposition of cases.
These are secret conferences and no formal report of them is ever made.
• Most cases are the “hard” ones; the “easy” cases seldom get that far.
29 Majority opinion – accompanies the decision of a case.
30 Dissenting opinion – are written by Justices who don’t agree.
• Concurring opinion – written by Justices who agree, but not with the reasoning.
31 Unanimous decision – all the Justices agree the same way.
32 A tie vote among the Justices means the lower courts decision does stand.
• Getting agreement is like “negotiating with 9 separate law firms.”
• The nine Justices are called BRETHREN, even though there have been
two women Justices & currently one. Been called “9 scorpions in a bottle.”
• The President can not 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,
bribery, or other high crimes and misdemeanors.” None have been
• 29 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 attempt in 1804, and that proved
unsuccessful. The attempted impeachment of Samuel Chase was
politically motivated & accomplished little except ill-feelings on both sides.
• There have been just over 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 Protestant, and held a law degree.
There have been 2 blacks, 6 Catholics and 5 Jews appointed to the Court.
• Truman considered his appointment of Justice 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
dumb son of a b_____. He’s about the dumbest man I think I’ve ever run across.”
• Judicial Review is used at both
state and national level.
35 Judicial Review is the power to
determine the constitutionality of a
law or presidential action… or
even judicial decision.
• The ULTIMATE 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
• Adams, during the last days and months of his
term, appointed forty-two new federal judges
(“midnight justices”) in a desperate move to keep
some Federalist control of the government.
William Marbury was commissioned to be
Justice of the Peace for the District of Columbia.
• Secretary of State James Madison was ordered
by Jefferson NOT to turn over papers appointing
Marbury and others, despite having been signed
• Marbury went to the Supreme Court and sought
a writ of mandamus (order by the court to an
official to carry out legal duties) sued Madison
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 jurisdiction
according to the Judiciary Act.
• 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 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 John Marshall
other Cases before mentioned, the Supreme
Court shall have appellate Jurisdiction”.
Hence, the Constitution did not give Congress the right to
pass the Judiciary Act.
36 Marbury v. Madison established the power of Judicial
Review, 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 laws and
around 150 Federal laws.
Chief Justice John Marshall’s
opinion was based on three
1. The Constitution is the
supreme law of the land.
2. All legislative acts (laws
by congress) and other
acts of government, are
subordinate to the U.S.
Constitution and cannot
come in conflict with it.
3. Judges are sworn to
protect the provisions of
the Constitution & must
refuse to enforce any
government act that is in
conflict with the
Constitution. Chief Justice John Marshall
• If the Chief Justice is in the majority, he
will write the “majority 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 precedents (examples for lower
courts and future Supreme Courts to
• The vast majority of cases are settled
on the principle of stare decisis ("let
the decision stand"), meaning that an
earlier decision should hold for the case
• Sometimes, justices will write a
concurring opinion to add or emphasize a
point the majority opinion does not state.
• Dissenting 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
• 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 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
• The decisions are bound weekly and
made available to every law library and
lawyer in the United States.
John Roberts John Paul Stevens Stephen Breyer Antonin Scalia Anthony Kennedy
Chief Justice Associate Justice Associate Justice Associate Justice Associate Justice
Sonia Sotomayer Clarence Thomas Ruth Bader Ginsburg Samuel Alito
Associate Justice Associate Justice Associate Justice Associate Justice
Experience, age, race
And ideology define
Supreme Court Justices
I Republican I Democrat
Implementing 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
• Judicial implementation refers to how and whether
court decisions are translated into actual policy.
• Charles Johnson and Bradley Canon suggest that
implementation of court decisions involves several
1. There is an interpretation 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 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 most contentious issue involving
the courts is the role of judicial
discretion; the Constitution itself does
not specify any rules for interpretation.
• Some have argued for a jurisprudence
of original intent (sometimes referred to
as strict constructionism).
• This view, which is popular with
conservatives, holds that judges and
justices should determine the intent of
the framers of the Constitution and
decide cases in line with that intent.
• Advocates of strict constructionism What would
view it as a means of constraining the Madison say?
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
THE COURTS AND THE POLICY AGENDA
• The courts both reflect and help to
determine the national 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
• From 1938 to the present, the paramount
issues before the Court have concerned
personal liberty and social and political
• 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
• 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
• Referring to the Court as the "nine 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
vacant, presidents usually nominate
someone 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.
• The president usually relies on the
attorney general and the Department of
Justice to identify and screen candidates
for the Supreme Court.
• Sitting justices often try to influence the
nominations of their future colleagues, but
presidents feel no obligation to follow their
• Senators play a much less prominent role.
• The ABA'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
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
• 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 JUSTICES
Characteristics of district and circuit court judges:
• Judges serving on federal district and circuit courts
are not a representative sample of the American
• 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 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" and a "Catholic seat" on the
Court, but not binding (currently there are 3 Catholics
and 2 Jews).
• Typically, justices have held high administrative or
• 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
• Partisanship 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
• 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.
• Ideology 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
• 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
• 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)
• 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 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."
• 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
making policy decisions that were the responsibility of elected officials..
The Burger Court (1969-1986)
• Warren's retirement in 1969 gave President Nixon his opportunity to appoint a
"strict constructionist" as Chief Justice; he chose Warren 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 Miranda decision.
• It was also the Burger Court (not the Warren Court) that wrote the abortion
decision in Roe v. Wade (1973), required school busing in certain cases to
eliminate historic segregation, and upheld affirmative action programs in the
United 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 v. Nixon (1974)… and thus
hastened his resignation.
The Rehnquist Court (1986-2005)
• The Rehnquist Court did not create the "revolution" in
constitutional law desired for by strict constructionists; instead,
the court saw 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)
• 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
• 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 democracy
• In some ways the federal courts are not a very
• not elected and are hard to remove.
• 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
• flooded with mail, 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 concern, and this becomes part of their
consciousness as they decide cases.
• Courts can also promote pluralism; 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
restraint, leaving policy decisions to the
• Judicial restraint advocates believe decisions
such as abortion and school prayer go beyond the
"referee" role appropriate for courts.
• Proponents of judicial activism, can even
breaking new constitutional ground with a
• They emphasize that the courts may alleviate
pressing needs, for the politically or economically
• 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
• 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 preference for
less contentious "technical" grounds.
• The courts employ issues of
jurisdiction, mootness (whether a case
presents an issue of contention),
standing, ripeness (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
• Federal courts have been much more
likely to find state laws rather than federal
Other 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
• Congress can begin the process of amending the Constitution to
overcome a constitutional decision of the Supreme Court; thus, the
Sixteenth Amendment (1913) reversed the decision in Pollock v. Farmer's
Loan and Trust Co. (1895), which prohibited a federal 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
clarifies existing 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.”
“Can never be
“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
in the public schools.”
Can not use illegal
evidence in a
Connecticut prohibited the use of contraceptives and the
Court ruled that violated the “right to marital privacy.”
Gideon v. Wainright, 1963
• The Tax Court hears civil, but not criminal cases involving disputes between
taxpayers and the I.R.S.
• The Claims court hears cases when individuals think the “G” owes them $.
• Special Courts have jurisdiction only in certain cases.
• The President appoints all federal judges, subject to confirmation by the
• The Court of Military 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.
42 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 training, judicial
philosophy, and he gets a recommendation from the ABA for a candidate as
“well qualified” or “unqualified.”
• All judges of the constitutional courts are appointed for life, until they resign,
retire, or die in office. They may be removed only by the impeachment
process. Life tenure gives them independence.
• Federal Marshals make arrests, secure jurors, and serve legal papers.