The Judiciary

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					 The Judiciary
The Federal Courts
Constitutional Underpinnings
• Where is the Supreme Court located in
  the Constitution?
• Who has the right to create the “courts?”
Congressional Underpinnings
• Article 1:
   – Created “legislative and special” courts
   – Created to carry out enumerated powers of
   – Judges hold FIXED terms, not life terms
   – Examples:
      • Claims court—hears lawsuits against government
      • Court of Military Appeals
      • DC Courts
Congressional Underpinnings
• 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. . .
• Statutory—
  – Deals with written statues (laws)
• Common—
  – Based upon a system of unwritten law
  – Unwritten laws are based on “Precedent”
  – Basic law system in England
• Criminal—
  – Concerns violations of the criminal code
• Civil—
  – Concerns disputes between two parties
Interesting Question:
• 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
• Now—
  – 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
    requires interpretation
  – Thus, interpretation of statues and the
    Constitution is, de facto, making law
Judicial Law Making. . .
• Judges interpret law, and therefore
  MAKE law;
  – The SC is the Constitution (F. Frankfurter)
  – The SC is a constitutional convention in
    continuous session (W. Wilson)
• Evidence?
  – 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
    Political questions
• What are the 4 types of jurisdiction held
  by the courts?
• What is the jurisdiction of the federal
Jurisdiction—Answers. . .
• Courts:
  – 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
  the Senate
  – 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
• There is usually the following:
  – “Jewish Seat,” “Female Seat,” “African-
    American Seat”
Ideology of Justices
• Presidents generally appoint people of
  similar philosophy
• 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
  – Andrew Johnson—Congress reduced court
    from 9 to 7
         The Supreme Court
The Nine Old Men. . . And a Couple
                        of Women
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
  those cases
• 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;
• Jurisdiction:
  – 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
• Types:
  –   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
    the constitution
  – Remand to lower courts
  – Executive Branch may ignore decision
  – State and local governments may not carry it
    out either
Judicial Activism
• Philosophy that the courts should take an
  active role in solving social, economic or
  political problems
  – “guardian ethic”
• Look at your court cases sheet—which
  are examples of judicial activism?
Judicial Restraint
• 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
    the law
  – Suggests “original intent” of founding
    fathers—decide cases on the basis of what
    the founding fathers “wanted”
Historical Courts
• Warren Court—
  – Most “activist”
• Burger Court—
  – Not as activist, but still “liberal” despite
    appointments by Conservatives
• Rehnquist Court—
  – Too “activist” by liberals!!! Most

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