The Federal Courts
• Where is the Supreme Court located in
• Who has the right to create the “courts?”
• Article 1:
– Created “legislative and special” courts
– Created to carry out enumerated powers of
– Judges hold FIXED terms, not life terms
• Claims court—hears lawsuits against government
• Court of Military Appeals
• DC Courts
• Article 3:
– Deals with judiciary
– Creates Supreme Court—gives Congress
power to create “inferior” or lower courts
– Provides the basis for our judicial system
– Three levels:
• District Court—lowest level of federal courts
• Court of Appeals (Circuit Courts)
• Supreme Court
Some Overview Information
• Test your knowledge—
– How many types of “law” are there? How
many can you name?
Answers. . .
– Deals with written statues (laws)
– Based upon a system of unwritten law
– Unwritten laws are based on “Precedent”
– Basic law system in England
– Concerns violations of the criminal code
– Concerns disputes between two parties
• How do cases get to the Supreme Court?
• What kinds of cases get to the Supreme
Note. . .
• Judicial Power is PASSIVE!!
– Courts cannot reach out and “create” cases
– Must wait for cases to come to them
– They can spot “cases” from the lower courts
and “keep an eye on them”
– Very common especially at the SC level
• Only those with “Standing” may challenge
a law or gov’t action
• Do the courts “make law?”
• Is that their role?
Judicial Law Making
• Judges “interpret” the law, therefore they
actually MAKE law;
• Necessary because:
– Statues are often broadly-worded, unclear, or
– The Constitution is broadly worded and
– Thus, interpretation of statues and the
Constitution is, de facto, making law
Judicial Law Making. . .
• Judges interpret law, and therefore
– The SC is the Constitution (F. Frankfurter)
– The SC is a constitutional convention in
continuous session (W. Wilson)
– Over 1,000 state laws and 1,000 federal laws
have been ruled unconstitutional
– SC has reversed itself over 200 times since
– Since 1960, SC has increasingly ruled on
• What are the 4 types of jurisdiction held
by the courts?
• What is the jurisdiction of the federal
Jurisdiction—Answers. . .
– Exclusive, Concurrent, Original, Appellate
• Fed Courts:
– Constitutional, Admiralty / Maritime,
Disputes between states, US Government as
a party, Citizens of different states,
Ambassadors or diplomats
Judges. . .
• Federal judges are appointed by the
President on the “advice and consent” of
– Needs a majority for confirmation
• Shall hold their office “during good
behavior”—basically for life
• Can be removed by Congress—
The Judges of the Court
• Mostly white, mostly male
– Carter: More minorities and women than
ALL OTHER PRESIDENTS COMBINED
• There is usually the following:
– “Jewish Seat,” “Female Seat,” “African-
Ideology of Justices
• Presidents generally appoint people of
• However this is hard to predict—why?
Answers. . . .
• New issues may arise
• Presidents cannot do anything about
judicial decisions—can say whatever they
• Approximately 25% of judges “stray”
from the philosophy anticipated by
• Family, friends, age
A Couple Interesting Facts. . .
• ABA evaluates nominees
• Existence of a “paper trail” may doom
• CONGRESS CAN INCREASE OR
DECREASE THE NUMBER OF
JUSTICES AND COURTS
– Andrew Johnson—Congress reduced court
from 9 to 7
The Supreme Court
The Nine Old Men. . . And a Couple
Some Key Facts. . .
• The Supreme Court receives about 8,000
petitions to be heard from lower courts
• Decides makes a decision on about 1% of
• Thus, about 99% of all cases that come
before the court are “denied”
• Therefore, the most common action taken
by the court on cases is???
Key Powers. . .
• What are the key powers of the Supreme
Answers. . . .
• Power of Judicial Review—Marbury v.
– More than 1,000 state laws and over 120
federal laws and some presidential actions
have been declared unconstitutional
• Power to interpret broadly worded laws
from Congress as well as the Constitution
• Power to overrule earlier SC decisions
• 9 members; highest court in the land;
– Original—cases involving states and
– Appellate—cases from courts of appeals and
state supreme courts
• From which “jurisdiction” does the Court
get most of its cases?
Answer. . .
• Appellate Jurisdiction:
– By FAR the most common way the Court
hears its cases
How Cases Reach Court
• Petition—relatively few are granted—less
than 90% do not make it;
• Rule of 4: 4 justices must decide to hear a
– What are the reasons the Court may hear or
reject hearing a case?
Rule of 4 Answers. . . .
• Case lacks a substantial federal issue
• Party lacks standing
• Court agrees with a lower decision
• Case is a political “hot potato”
• Conflicts in the lower courts
• Court wants to make a determination
• Constitution is unclear—court wants
How the Court Works
• Runs from 1st Monday in October to the
end of June
• Hear cases / arguments M—Th, must
have 6 justices to hear a case
• Oral arguments last 30 minutes—open to
• After oral arguments, they chat about the
– Unanimous—less that 1/3 of all cases
– Majority—most of all
– Dissenting—minority opinion
– Concurring—someone who agrees with
majority, but for different opinions
• Assigning opinions:
– Chief Justices job—assigns the role; slant,
need to be careful. . .
Don’t get around much. . .
• What are some of the ways to get around
the Supreme Court’s decisions?
Carrying out the Opinions
• Ways to get around court opinions
– Amending Constitution—court cannot strike
down something as unconstitutional if it is in
– Remand to lower courts
– Executive Branch may ignore decision
– State and local governments may not carry it
• Philosophy that the courts should take an
active role in solving social, economic or
– “guardian ethic”
• Look at your court cases sheet—which
are examples of judicial activism?
• Philosophy that the courts should allow
the states and other branches to solve
social, economic, or political problems.
– Courts should “interpret” the law, not make
– Suggests “original intent” of founding
fathers—decide cases on the basis of what
the founding fathers “wanted”
• Warren Court—
– Most “activist”
• Burger Court—
– Not as activist, but still “liberal” despite
appointments by Conservatives
• Rehnquist Court—
– Too “activist” by liberals!!! Most