The Judiciary

Constitutional Intent
1. Federalist 78- Alexander Hamilton-Judicial Review-
2. “Independent judges were needed to guard the Constitution and rights of individuals.”
3. “Judges needed to be placed above the fray of politics.” “Least Dangerous Branch”
4. All Federal Judges are appointed by the President and approved through the Advice and Consent of the Senate.

Article III -Judiciary
1. Judiciary Act 1789
  1. Supreme Court
    - Five justices and a Chief Justice
  2. Circuit Court
    - Geographic sections of nation
    - SC Justices would “Ride circuit” when the court is not in session to hear cases on appeal.

District Court
- Minimum of one per state

Evolution of the Court-Court Packing and Judicial Review
1. Washington appoints six Federalists to the first Supreme Court
2. Judiciary Act 1801-
  1. Adam’s Midnight Judges
    - John Marshall from Secretary of State to Chief Justice of the Supreme Court
    - Reduce number of Supreme Court justices to six
      - Keep Jefferson from getting the next appointment
    - Marbury v. Madison (1803) “The case of the missing commissions”
      - Marshall Created the problem, and now he will solve it
        
        Judicial Review- created by Marshall

Judiciary Act 1803
1. Jefferson Reverses Adam’s Intent
Court Packing Presidents
1. Washington- Six Federalists
2. John Adams- Midnight Judges

Franklin Roosevelt- New Deal Debate

Ronald Reagan- Reagan’s Revolution – Judicial Devolution

Significant Chief Justice Era’s
1. Marshall Court- Nationalism
2. Taney Court-Duel Federalism

Taft- Hughes- Substantive Due Process- Property Rights

Warren Court- Due Process Model- Cooperative Federalism
Burger Court- Roe v. Wade and transition for Liberal to Conservative Era
Rehnquist Court- Crime Control Model- New Federalism

American Legal System
1. Trial courts
  1. Evidence, juries, guilt or innocence
  2. Grand Juries v. Petite Juries
2. Appellate courts
  1. Questions of procedure and constitutional substance involved during the trial court
3. Jurisdiction
  1. Original jurisdiction
    - Initial court of authority
  2. Appellate jurisdiction
4. Law
  1. Criminal-Public Law
    - National or State
  2. Civil- Private Law

Federal Court System
1. Constitutional or Article III Courts
  - Supreme Court
  - Circuit Court
  - District Court
2. Legislative Courts
  - Congressional use of implied powers to create courts for a specific purpose
    - Territorial Courts
    - Tax Courts
    - S. Court of Veteran’s Affairs.

District Courts
1. Minimum of one per state-currently (2011) 94 courts in operation.
2. Single judge hears a case involving one of the following
  1. Federal government as a party
  2. A federal question or claim under the Constitution, treaty, or Fed statute

Civil case above $50,000

Appointed by District Judge to “help” with legal issues.
1. Federal Magistrate-
2. Special Master
Federal Prosecutor-
1. S. Attorney under the Direction of the U.S Attorneys General

Circuit Courts or Courts of Appeal
1. Eleven Circuits
  1. Hears appeals from the District Courts
  2. 179 Judges each Circuit headed by a Chief Judge
2. C. Circuit
  1. Regulatory Commission and Agencies
    - NLRB and SEC
  2. S. Court of Appeals for the Federal Circuit
    1. Patent, Contract, and Financial Claims
  3. Decisions
    1. Three-judge panels
    2. En Banc-Any judge on the Circuit may sit in on the case (HOT CASES!)

No Original Jurisdiction
- There are no trials at this level, only appeals.

C. Court of Appeals
- Appeals from Administrative Agencies
- Second most important court in nation next to Supreme Court
  - Makes Administrative Policy through its rulings
    - Presidential priority in appointments

Court of Last Resort
1. If the Supreme Court does not grant review, then the Circuit Court ruling is the final decision. Therefore, the in a period of limited review by the Supreme Court (Rehnquist) the Circuit Courts have become a de facto Supreme Court.

Supreme Court of the United States
1. Eight Associate Justices and a Chief Justice
2. Original Jurisdiction (Article III)
  1. Two or more states
  2. Case involving the United States and a State

Foreign Ambassadors or diplomats

A state and a citizen of another state (state initiated)

Appellate Jurisdiction
1. Circuit Courts
2. State Supreme Courts

Court of Military Appeals

Judicial Selection
1. Highly Political- Appointed by the President and approved the Senate.
  1. District and Circuit Appointments
    - Senatorial Courtesy
  2. Supreme Court
    - President’s selection through Attorney’s General’s office and Party.
  3. Nomination Process- Highly Partisan (used for all federal Judicial nominations)
    1. Justice Department and Senators advance names of candidates to President
      - Investigation and background check
        
        Reagan- extreme “litmus test” of conservative ideology

President limits selections and makes decision
- Nomination is sent to Senate Judiciary Committee
- ABA rates the candidate.
- Candidate makes “good will” visits to members of the Judiciary Committee
- Interest Groups take a position on candidate, lobbies senate and public.
- Senate Judiciary Committee
  - Holds hearing on candidate
  - Holds a vote on nominee (Recommend or Disapprove)
- Senate holds a floor vote on nominee.
- Power in process
  - Senate Judiciary Committee Chairman
    - May refuse to schedule a vote (personal veto)
      1. Senator Eastland- Mississippi- Chairman for 21 years. Actively kept African Americans off the Federal bench
    - Home state Senator may veto selection (Blue Slip)
    - Interest Groups
      1. Bork- National Television Campaign
      2. Thomas- NAACP campaign against approval

Criteria for Judicial Selection
1. Ideology
2. Competence
3. Political Patronage “Party Pie”
4. Reward
  - CA Governor Earl Warren was given Chief Justice for “delivering” CA during election
5. Religion
  - Catholics are against Abortion- Scalia
  - Jewish “Seat” on the Court- Brandeis, Frankfurter, Goldburg, Fortus, Ginsburg
6. Race, Gender, Ethnicity
  1. Black “Seat “ Thurgood Marshall –Clarence Thomas
  2. Woman’s “Seat” Sandra Day O’ Conner, Ruth Bader Ginsburg

Hearing Cases- “The First Monday in October”
1. Original Jurisdiction
2. Appellate Jurisdiction
  1. “Exhaust all lower courts.”
  2. Appeals are filed
    - Reviewed by law clerks
    - Influence by Solicitor General

Rule of Four

Appeal or Writ of certiorari- to be informed
- In Forma pauperis- In the form of a pauper.
- Interest Groups fund many cases- ACLU, NAACP

Oral Arguments and Decisions- “Oyez, Oyez, Oyez”
1. Legal Briefs are filed in advance
2. Justices have read arguments and have prepared questions
3. Half hour arguments per side.
4. Justices retire to conference and vote
5. Judicial Opinions
  1. Majority- Winning side
  2. Dissenting- legal argument in opposition

Concurring- agreement in end result, but using different reasoning

Plurality-more than three
Per curiam- unsigned opinion

Size of ruling 9-0, 5-4 and impact

Politics of Judicial Rulings
1. Judicial Activism-Judges should use theirs powers broadly to further justice
2. Judicial Restraint- Judges should not over-rule decisions of other branches
3. Influence on Rulings-Extra-legal factors
  1. Behavioral
  2. Political Ideology

Attitudinal/Strategic Model- personal preference towards a case and/or the judicial/legislative or judicial/executive relationships.

Public Opinion

Solicitor General
1. The President’s lawyer in the Supreme Court
2. The Tenth Justice of the Supreme Court
3. Serves “At the pleasure of the President”
  1. Originally a non-political position
4. “A small specialized law firm within the Justice Department”
5. Handles all cases involving the United States in the Supreme Court
6. Advises the Supreme Court on which cases to hear
  1. Gets over 80% of its cases into Supreme Court
  2. Files Amicus Curiae Briefs on behalf of United States
    - “Friend of the Court” A legal argument to influence the outcome of a case.
    - A lobbying tool that places the U.S. government into many cases.
  3. Political Role: Solicitor General is often “forced” to take a political position on a case rather than a legal one.
    1. Rex Lee- Solicitor General to the Reagan administration on the many political issues he was forced to take. “I’m not the pamphleteer general, I’m the Solicitor General.
    2. Reagan administration had a set of “agenda cases” which it would bring into the Supreme Court either as a case or through Amicus Curiae.

Judicial Policy-Making
1. Power of National Supremacy
2. Power over Legislative and Executive decisions
3. When Courts rule on and Constitutionality of an action, they are making policy.
  1. Brown v. Board of Education- Foundation for Civil Rights Movement.
  2. Miranda v. Arizona- Due Process model for procedures

Aderand v. Pena- Reverse discrimination model.

Precedent- stare decisis
1. Reversing precedents
  - Plessy v. Ferguson to Brown v. Board of Education
2. Judicial Implementation
  1. Brown v. Board of Education
    - Brown II- “All deliberate speed”
    - Little Rock High School

Politics of the Judicial Branch
1. Court Packing
  1. All levels
2. Judicial Selection
3. Political Ideology
  1. “litmus test”
4. Solicitor General
  1. Case Selection
  2. Amices Curaie
5. Informal Constitutional Amendments
  1. New Deal
6. Alliances and Policy-Making
  1. Legislative-Judicial Laws made by Congress will be upheld by the Courts
  2. Executive- Judicial Administrative actions made by the Executive Branch will be upheld.
    - Anti-Trust Law Changed by the “Chicago School” Judges
    - Political Capital- Changes in the Courts come at “no cost” to the President
      - Brown v. Board advanced Civil Rights and did not cost the President votes.

Judicial Devolution and New Federalism
1. Implementation of new judicial interpretation through the courts.

Judicial Strategy- How to change law in America
1. Single Party wins White House and Senate.
2. Appoint ideological judges to the federal bench.
  1. Supreme Court
  2. C. Circuit Court

Target Circuit Courts

Senate Judiciary Committee approves appointments.
Solicitor General “selects” agenda cases to be brought before the court.
Executive Branch issues new “rules” in Administrative agencies
Ideological Court rules favorably in these cases.
1. New policy is implemented

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Sources of American Law.pdf

Supreme Court-Selection.pptx