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The Judiciary

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					Adapted by Kelly M. Taylor




          THE JUDICIAL BRANCH
Adapted by Kelly M. Taylor




        The American Legal System
 • The American legal system is a dual system:
        – state courts--actually 50 different 'systems'
        – federal courts
 • Both systems have three tiers:
        – trial courts--litigation begins and courts hear the facts
          of the case at hand (original jurisdiction)
        – appellate courts--decide questions of law, not fact
          (appellate jurisdiction)
        – high or supreme courts
Adapted by Kelly M. Taylor




     http://www.uscourts.gov/understanding_courts/gifs/figure1.gif
Adapted by Kelly M. Taylor
Adapted by Kelly M. Taylor
                                 State Courts:
                             Each state has a court system.
Adapted by Kelly M. Taylor
Adapted by Kelly M. Taylor




                             Question# 1
      • If you were to file a case w/ Texas about the
        Pledge of Allegiance being in conflict with
        the establishment clause, what path would
        your case take? See charts.
Adapted by Kelly M. Taylor


              The Constitution and the
                National Judiciary
 • Article III of the Constitution establishes:
        – a Supreme Court in which the judicial power of the United
          States is vested
        – life tenure or ‘good behavior’ for judges
        – judges receive compensation that cannot be diminished during
          their service
        – such inferior courts as Congress may choose to establish
        – the original jurisdiction of the Supreme Court
 • The intent of Article III was to remedy the failings of
   the Articles of Confederation which left judicial matters
   to the states.
Adapted by Kelly M. Taylor




                             Question # 2
      • How did the New Constitution in 1789
        impact the national courts?
Adapted by Kelly M. Taylor




                    Article III - Supreme Court
                    President appoints ( selects)



                        Senate confirms or denies
                             after hearings
Adapted by Kelly M. Taylor


          Federal Selection Process
• The selection of judges is a very
  political process.
• Judges are nominated by the president
  and confirmed by the Senate.
      – Often presidents solicit suggestions from
        members of the House of Representatives,
        Senators, their political party, and others.
• Provides president opportunity to put
  philosophical stamp on federal courts
Adapted by Kelly M. Taylor


       Who will President Obama select
            if a seat opens up?
      • "I will seek someone who understands that justice
        isn't about some abstract legal theory or footnote
        in a casebook," Obama said. "It's also about how
        our laws affect the daily realities of people's lives -
        - whether they can make a living and care for their
        families, whether they feel safe in their homes and
        welcome in their own nation.“ La Times

      • Each President has different preferences. It is a
        president’s Constitutional Power to select judges
        for the Supreme Court.
Adapted by Kelly M. Taylor



    The Senate will hold
  hearings and vote on the
         new pick!
      What will happen?



      Listen to NPR as the debate about Sotomayor
        continues: 8 min.
      NPR: Introduction of Sotomayor at
        http://www.npr.org/templates/story/story.ph
        p?storyId=104730820
 Adapted by Kelly M. Taylor
                               Question # 3
• According to what you heard about Sotomayor:

    – A. What controversies exist regarding her
      nomination?
    – B. If you were a senator, what questions would you
      ask her during the Congressional hearings? Why
      those questions?
    – C. Knowing what you know today, if you were a
      Senator, would you confirm or deny Sotomayor.
    – Need more information? See the article by the NY Times at
      http://www.nytimes.com/2009/06/11/us/politics/11judge.html?hp
Adapted by Kelly M. Taylor




                      What ever happens…….
  *We will have a Supreme Court made up of 9
  Justices. The are seated for life or until death,
  retirement, or impeachment.
  *They make up the highest court in the land.
  *They will hear cases and interpret the US
  Constitution
 Adapted by Kelly M. Taylor


         Generally speaking, the Court
               will hear cases
• involves a basic constitutional
  principle

• an important question of federal law

• conflict between state and federal
  laws
Adapted by Kelly M. Taylor




                             Who’s Who
 • John Paul Stevens - Ford
 • Samuel Alito- GW Bush
 • *John Roberts- GW Bush (chief justice)
 • Antonio Scalia - Reagan
 • Anthony Kennedy - Reagan
 • David Souter – GH Bush- has announced retirement.
   Obama has nominated Sotomayor.
 • Clarence Thomas – GH Bush
 • Ruth Bader Ginsburg - Clinton
 • Stephen Breyer - Clinton
 Adapted by Kelly M. Taylor




http://www.nusd.k12.az.us/nhs/gthomson.class/judicial/sc.justices.gif
Adapted by Kelly M. Taylor
                             The Process……
      • The president usually tries to nominate
        a justice whose political philosophy is
        similar to his/her own
      • The nominee must win approval of the
        Senate
      • Scholars refer to periods by the Chief
        Justice (Berger Court, Warren Court,
        Rehnquist Court)
Adapted by Kelly M. Taylor



                             Political Philosophy
      Court - an ever changing political
      institution that fluctuates between
      liberalism and conservatism as well
      as activism and restraint.
Adapted by Kelly M. Taylor
                             Justice Ideology and
                               Voting Patterns
                      • Liberal/Moderate
              • Stevens, Souter, Ginsburg, Breyer
                        • Swing Votes
                          • Kennedy
                        • Conservative
                • Roberts, Alito, Scalia, Thomas
Adapted by Kelly M. Taylor




                             Judicial Review
  • Judicial review is the power of a court to decide if a
    law or other legal issue contravenes the Constitution,
    and overturn it.
  • This power is not mentioned in the Constitution.
  • Judicial review was established by the Marshall Court
    for itself and posterity in Marbury v. Madison (1803).
  • Marbury's long-term effect has been to allow the Court
    to have the final say in what the Constitution means.
Adapted by Kelly M. Taylor


                             Judicial Review
    • Judges have used this power
      sparingly.
    • The power has only been used
      about 140 times to strike down acts
      of Congress.
    • Although more frequently (over
      1200 times) to invalidate acts of
      state legislatures.
          How Active should the Federal Courts be in
Adapted by Kelly M. Taylor




                             POLICY MAKING?

                             INTERPRETING THE
                               CONSTITUTION?

                 ENFORCING JUDGMENTS?

           Should the Federal Courts practice Judicial
                Activism or Judicial Restraint?
Adapted by Kelly M. Taylor




                             Judicial Activism
                 The Court should take an
                 active role in using its powers
                 to check the actions of
                 Congress, legislatures, the
                 executive branch and
                 agencies.
Adapted by Kelly M. Taylor




                             Judicial Restraint

                 The Supreme Court should
                 defer to the decisions made
                 by elected representatives of
                 the people in the legislative
                 and executive branches.
Adapted by Kelly M. Taylor




                                       Question 4
      • A. What is Judicial Review?



      • B. In your opinion, explain why the current
        court should practice Judicial Activism or
        Judicial Restraint
      •     Think about Affirmative Action ( grutter v. MI), abortion,
      •     Juvenile death sentences, medical use of pot,
Adapted by Kelly M. Taylor




                    How the Justices Vote
      Legal Factors
      • Judicial Philosophy
             – Judicial Restraint - advocates minimalist roles for
               judges, and the latter
             – Judicial Activism - feels that judges should use the law
               to promote justice, equality, and personal liberty.
      • Precedent
             – Prior judicial decisions serve as a rule for settling
               subsequent cases of a similar nature.
Adapted by Kelly M. Taylor

                    How the Justices Vote
Extra-Legal Factors
• Behavioral Characteristics
      – The personal experiences of the justices affect how they vote.
        Early poverty, job experience, friends and relatives all affect
        how decisions are made.
• Ideology
      – Ideological beliefs influence justices' voting patterns.
• The Attitudinal Model
      – A justice's attitudes affect voting behavior.
• Public Opinion
      – Justices watch TV, read newspapers, and go to the store like
        everyone else. They are not insulated from public opinion and
        are probably swayed by it some of the time.
Adapted by Kelly M. Taylor
Adapted by Kelly M. Taylor




                             Question #5
      • An Amicus Brief is a friend of the court
        brief.

      • Visit www.google.com and look up pope
        submits amicus brief. What did Pope John
        Paul II communicate to the US Supreme
        Court?
Adapted by Kelly M. Taylor

                             How Supreme Court
                             Decisions are Made

Case on the Docket              Briefs and Amicus
                                                      Oral Argument
    Approx 95                    Briefs submitted



Justices Conference
  Cases discussed                Opinions Drafted
                                                    Opinions Announced
    Votes taken                   and Circulated
 Opinion Assigned
Adapted by Kelly M. Taylor



                             Landmark Cases

      • Marbury vs. Madison (1803) judicial review
      • McCulloch vs. Maryland (1819) upheld
        implied powers clause
      • Gibbons vs. Ogden (1824) power to regulate
        interstate commerce, federal law prevails
        over state law
      • Dred Scott vs. Sandford (1857) contributed to
        the Civil War
Adapted by Kelly M. Taylor



                     Landmark Cases cont.
      • Plessy vs. Ferguson (1896) “separate
        but equal”
      • Brown vs. Board of Education (1954)
        “separate is inherently unequal”
      • Baker vs. Carr (1962) reapportionment,
        one person one vote- all Congressional
        districts should be about the same size
        500,000 people
      • Roe vs. Wade (1973) right to privacy
Adapted by Kelly M. Taylor



           The Supreme Court Today
 • According to a 1990 poll, only 23% of Americans
   knew how many justices sit on the Supreme Court,
   and two-thirds could not name a single member.
 • In 1998, a poll of teenagers showed that only 2%
   could name the Chief Justice.
 • Yet, Supreme Court decisions have been credited
   with strengthening the Constitution, increasing the
   power of the federal gov’t., starting the Civil War,
   reshaping race relations, restoring fairness to our
   electoral system, redefining the rights of women,
   deciding a presidential election, and there is more
   to come!
Adapted by Kelly M. Taylor




                       FINAL ASSESSMENT
      • The Supreme Court has spoken on a variety
        of issues. With which do you agree/
        disagree and why? Choose the 3 most
        important to you:
      •     Juvenile death sentences – only at 18 ( TX)
      •     Downloading illegal ( Metro)
      •     10 Commandments- outside not inside gov. buildings ( TX/ KY)
      •     Race may be used as one of many factors in college admissions ( Grutter v. U MI)
      •     Rejected informant-CIA case (Miller/Cooper)
      •     May not sue for lack of police action ( Gonzales)
      •     No medical Use of Marijuana
      •     Searching cars ok w/o warrant at traffic stop ( Thorton)

				
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