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					• 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
  Supreme Court.
• 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.
 35 seats
  are for
journalists                     40 seats are
                                 for guests
                                    of the
                                  9 justices

   250 seats will be   About 75 seats are
    available to the
                       for lawyers who have
    public, although
   most have already   practiced before the
     been given to     court.
   congress, VIPs &
     special guests
                         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.

•    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.

                                   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
                                      are the Supreme Court, courts of appeals,
   US Courts
                     US Tax           district courts, & U.S. Court of International Trade.
   of Federal
                       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
     US Courts
   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
    legal methods.
•    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).
  • 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.
 Section Focus:
  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
        its subjects.
• All cases not heard by the federal courts are heard by the
   State courts.
  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:
                                                                Convicted of
  hear the case.                                                 Tax Evasion
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
    federal court.
 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
Federal Jurisdiction
                       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
State Jurisdiction
                            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
federal judges.
• 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.
• 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.

• 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 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
special courts).
• 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.]

 • 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

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
 territorial courts
 • 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
                                                                                  Caseload, 1900-2000

                                                                                Federal Appeals Court
                                                                                 Caseload, 1900-2000

                                            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…
• 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
nationwide jurisdiction.
• 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
narrow jurisdiction.
• 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 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.
• 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
                                              MILITARY TRIBUNAL:
                                 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
                                              civil matters.
                                              • 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
   Nazi Germany
                                              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.
                         Bay, Cuba
• 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
Federal Circuit.
• 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
                                                     color, religion,
     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
     law Constitutional.
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
   original jurisdiction.
    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 3
    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.”
Oral Arguments:
• 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
   school graduates.
    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
                                    those cases.
Solicitor General Paul D. Clement
• 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
court cases.
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.
 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
 Supreme Court.
• 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
by Adams.
• 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
and the.
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
being considered.
• 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
Appointed by
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
  conservative decisions.
• 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
    "court-packing plan."
     • 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.
Selection process.
• 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
   great detail.

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
    a nomination.
•     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).
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
judicial positions.
• 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
   different party.
•   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
democratic institution.
     • not elected and are hard to remove.
     • elite-dominated.
• 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
     of politics.
     • 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
particular decision.
• 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
laws unconstitutional.
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
federal bench.
• 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
 separate and
“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
  criminal trial.
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.

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