Pump Primer:
•List at least four current Supreme Court Justices.
•List the name of the present court.
Learning Objectives:
16.1 Identify the basic elements of the American judicial system and the major participants in it
16.2 Outline the structure of the federal court system and the major responsibilities of each component
16.3 Explain the process by which judges and justices are nominated and confirmed.
16.4 Describe the backgrounds of judges and justices and assess the impact of background on their decisions
16.5 Outline the judicial process at the Supreme Court level and assess the major factors influencing
16.6 Trace the Supreme Court’s use of judicial review in major policy battles in various eras of American history
16.7 Assess the role of unelected courts and the scope of judicial power in American democracy
Biblical Integration
The law provides a standard for living that are the duty and delight of a Christian; a foundation for the legal system of any nation that desires justice. (Matt. 22:37-40; John 1:17)
Introduction:
Although the scope of the Supreme Court’s decisions is broad, the actual number of cases tried in our legal system is tiny, compared to lower federal courts and state and local courts. This means that a great deal of judicial policymaking occurs in courts other than the Supreme Court. This chapter describes how the court systems are structured, how judges are selected, and the influence of the courts on the policy agenda in the United States.
Video: The Big Picture
Why do the unelected judges in the Supreme Court have so much power in a democratic system?
Author George C. Edwards III asks this fundamental question and delves into why decision-making at the Supreme Court level is often based on the personal ideologies of the judges.
Video: The Basics
Do you have confidence in the U.S. court system?
Watch this video to discover what the Founders did to make sure the federal judiciary would be independent of political influence. You’ll also learn about an important check the Supreme Court has on the other two branches of U.S. government.
Nature of the Judicial System (LO 16.1)
In principle, the judicial system provides an arena for two parties to bring their conflict before an impartial arbiter. In theory, justice will emerge when the judge applies the law to the case and determines which party is legally correct. Most cases in our justice system never go to trial because the parties reach a settlement out of court.
There are two basic types of cases: criminal and civil. In a criminal case, the government is the instigating party, charging the defendant with violating specific laws. His offense may harm an individual or society as a whole, and his punishment may be imprisonment, a fine, or some form of community service. A civil case pertains to statutes or common law, and involves a dispute between two private parties, although the government can be a party to a civil suit. Civil cases cover such matters as contracts, property, divorce, child custody, and damages. Money is usually the objective in civil disputes, and imprisonment isn’t an option because a private party, not the government, is filing suit—although a person can face both criminal and civil suits for the same crime.
It’s important not to confuse criminal and civil cases. And,it’s also important not to confuse state and federal courts. The vast majority of all criminal and civil cases are tried in state courts.
______Law
The government charges an individual with violating specific laws.
______for crimes against society (or public order)
Tort(______) Law
Involves a ______between two parties (one of whom may be the government itself) over a wide range of matters
Participants in the Judicial System
______
______- bring charges
______- one being charged
Actual ______, not hypothetical cases
______to sue - must be an injured party
______suits - a small group to sue on behalf of a larger group
______disputes – must be solvable by legal methods
______
Large profession; 1 million attorneys
Not only for the rich anymore
Groups
Sometimes choose to represent a plaintiff to test the ______of a law
______briefs or “friend of the court”
•An attempt to get their point of view across
Linda Brown
Linda Brown was handpicked to be the plaintiff in the famous Brown v. Board of Education case that successfully challenged the constitutionality of school segregation.
Review Questions
In which type of case can the defendant receive imprisonment as a punishment?
- Criminal
- Civil
- Class action
- All of the above
Structure of the Federal Judicial System (LO 16.2)
The Constitution specifies only the Supreme Court, leaving it to Congress to establish other federal courts as needed. There are both constitutional and legislative courts established by Congress.
Legislative courts are highly specialized and function differently from constitutional courts of general jurisdiction, so this chapter will focus mainly on constitutional courts.
It’s important to understand the difference between courts with original jurisdiction, which hear cases first and determine the facts, and courts with appellate jurisdiction, which hear cases on appeal from a lower court. Appellate courts review only the legal issues, not the facts of the case.
______ Courts
Article III courts created by ______
______ Courts
______courts created by Congress for special purposes.
Judges have fixed terms and lack protections against removal or salary reductions.
Slide 20:FIGURE 16.1: Organization of the federal court system
The federal court system is hierarchical and composed of both constitutional and legislative courts.
District Courts
Organization and jurisdiction
____ courts - at least one in each state
•Judges per court 2-28
•Total 675
______jurisdiction only
Hold ______and impanel juries
______judge, occasionally require panel of ___
•Rely on federal magistrates to help them handle their workloads.
2% of criminal cases; 1% of civil cases
•309,000 cases in 2010
•Majority of cases involve state law and are tried in ______courts
Courts of Appeals
Review district court decisions
Errors of ______and law
Don’t hear ______or retry cases
75% of 55,000 cases come from ______courts
Review and enforce Independent Regulatory Commissions orders
_____ circuits, serving at least 2 states
6-28 judges per circuit; 179 total
___ judges per case; ______(by all the judges of that court) occasionally
Set precedent
FIGURE 16.2: The federal judicial circuits
The 12 circuits vary in geographic size because they’redesigned to serve a relatively equal population. Population shifts have made district populations uneven, and some have called for dividing the 9th circuit.
Supreme Court
Unique responsibilities
Resolving conflicts among ______
Maintaining national ______in law over state law
Ensuring ______in interpretation of federal laws
Composition
_____ Justices
•_____ associate justices; ____ chief justice
•Constitutionally Congress can change the number
Controls its ______
Picks and chooses what cases it will hear
Receives ______appeals/year
•Most cases are appeals from lower federal courts, some losers in state courts
Only hears about ______cases/year
Appeals must involve a substantial federal question
Slide 26:FIGURE 16.3: How cases reach the Supreme Court
There are three routes to the U.S. Supreme Court. The first is through its original jurisdiction, but this happens rarely as the Supreme Court’s original jurisdiction is limited to a few specialized types of cases that don’t arise often.
Most cases reach the Court through appeals from decisions in lower federal courts.
Some cases also reach the Court as appeals from the highest state court.
TABLE 16.1: Sources of full opinions in the Supreme Court, 2010-2011
Review Questions
How many cases does the Supreme Court hear per year?
- 100
- 50
- 80
- 10,000
Politics of Judicial Selection (LO 16.2)
Since lower federal court judges and Supreme Court justices serve for life, judicial appointments are a way for a president to leave an enduring legacy. Judges can be impeached, but this has happened only 7 times in more than 200 years. Congress is also forbidden from reducing the justices’ salaries, which further insulates them from political pressure.
But, the president’s judicial nominations must be confirmed by the Senate, which can be a contentious process in situations of divided government.
Lower Courts
______
Unwritten ______for district court judgeships
Senate does not confirm nominees opposed by the senator of the president’s party from the state in which the district court is located
______and ______background checks
President chooses from survivors of check
Nominee suggested by a senator is on the list, the president must choose this person
In effect makes the Senate both the nominating and approving body
Politics of judicial selection
______divide
Process lengthy and contentiously growing
______groups increasingly active
______against candidates who don’t share their ideology
Supreme Court
Vacancies infrequent
•Some presidents never get to fill a position
•______nominates & ______confirms
______justice vacancy unique
•Elevate an associate justice or nominate someone from outside the Court
______courtesy not relevant
•Court justices do not serve in districts or circuits
Chief Justice William Rehnquist
Justice Rehnquist served on the Court from 1972 until his death in 2005. Elevated to Chief Justice in 1986 by President Reagan. President G.W. Bush went outside the Court after Rehnquist’s death and nominated John Roberts, Jr. to fill the chief justice vacancy
Partisan balance in Senate key
Senate ______Committee
•Confirmation process,
•Holding hearings - grills candidates on their judicial philosophy and dissects their past
•Highly political
•______
•To prevent confirmation
•Key to confirmation – president’s party holding 60 seats = ______
TABLE 16.2: Unsuccessful Supreme Court nominees since 1900
Since 1900, there have been 8 Supreme Court nominees who didn’t get Senate confirmation. Abe Fortas was an associate justice who was unsuccessfully nominated for chief justice.
The Senate never took any action on Homer Thornberry’s nomination, and Douglas Ginsburg’s nomination was withdrawn. Robert Bork was rejected for being too conservative, and Harriet Miers for not being conservative enough.
Image: Elena Kagan
Elena Kagan is the junior justice on the Court, having been nominated by President Obama in 2010. As is typical in modern times, she was confirmed by a vote along party lines
Review Question
How is the chief justice chosen?
- Voted on by the other 8 justices
- The most senior justice gets the position
- Nominated by president, confirmed by Senate
- Picked by the Senate Judiciary Committee
Backgrounds of Judges and Justices (LO 16.3)
Criteria for Selection
______
Ethics
Diversity
______– most important
Not a legal requirement to be a ______
Non-lawyer may not make it through confirmation
______background
White, male, lawyer
______African Americans
______women
______Hispanic American
Diversity v. ideology
Older, ______
Mostly______
____Catholics – current court 6 Catholics
______-______class backgrounds
Prominent lawyer or judge
Image: Swearing in of Sonia Sotomayor
Sonia Sotomayor is the first Hispanic American to serve on the Court.
As we can see, the backgrounds of federal judges are not representative of Americans.
TABLE 16.3: Supreme Court justices, 2013
This table shows the 9 Supreme Court justices that comprise the current Court.
Who’s most likely to retire before President Obama’s second term expires?
Criteria for Selection
Geography
Different regions of the country
Not as important, other considerations are more prominent today
______Diversity (20th Century)
Effort to have Jewish or Catholic Justice
______/______
Main criterion in use today
Background Characteristics and Policymaking
What presidents expect v. what they get
Democratic expect nominees to turn the Court in a ______direction
Republican expect nominees to move the Court in a ______direction
Disappointed ____ of the time
Diversity: More than a symbolic difference?
______judges are slightly more sympathetic to charges of sexual discrimination
______American judges are more sympathetic to claims of racial discrimination
Differences in judicial decision making can not be attributed to any one characteristic, such as sex, race, religion, or background
Image: U.S. Supreme Court, 2013
Can you name each justice in this official photograph?
Review Question
What is the main criterion presidents use to select judicial nominees?
- State where they are from
- Religion
- Race
- Ideology
Courts as Policymakers
The Supreme Court isn’t the only court that makes policy. All appellate courts make policy when they set precedents for how to interpret laws. But as the highest court in the land, the Supreme Court is the final arbiter of what a law means. So how does the Court make decisions? Let’s explore that topic.
Accepting Cases
First step in process
Justices meet in conference ______a week
•Rely on law clerks to pass along the most interesting cases
______
•Four justices must vote in favor for a case to be heard
Writ of ______
•Formal document that orders the lower court to send up a record of the case for review
Accepting Cases
Type of cases selected
Civil______
Discrepancies in ______of a law
Requests by ______General
•Third ranking official in the DOJ
•In charge of the court appeals made by the federal government.
•Decides what cases to ______
•Review and modifies the ______
•Represents the federal government before the Supreme Court
•Submits ______briefs
FIGURE 16.4: Obtaining space on the Supreme Court’s docket
This figure shows the process of appealing a case to the Supreme Court. Most cases are turned down.
Process of Decision Making
______
Attorneys
Amicus curiae briefs (interest groups)
Solicitor general
Oral arguments
______thru______; ______weeks on, two weeks off; starting first week in ______. Thru June
10am until noon; ____ minutes for each side
______—with all the justices present
Justices interrupt with questions
Nerve-wracking experience for a lawyer
Conference
Meet once to twice/week to discuss case, vote, and assign opinion writing (mostly Thursday and Fridays)
Opinion writing
Majority opinion explains the legal reasoning of the decision
•______assigns opinion, if in majority; if not, the senior associate justice on the winning side assigns the writing
______opinion
•Support a majority decision but stress a different constitutional or legal basis for the judgment
______opinion
•Explaining why they disagree with the majority.
FIGURE 16.5: Supreme Court’s decision-making process
The process outlined here can take more than a year from petition to announcement of decision.
Basis of Decisions
Principle of ______(stair-ee di-sahy-sis)
“let the decision stand.”
Lower court respect precedent of the Court
Free to overturn its own precedent
•Brown v. Board of Education (1954) overruled ______(1896) – “separate but equal”
Why do justices disagree?
Uncertainty and ______
•“Equal protection,” “due process of law,” “unreasonable search and seizure,” “necessary and proper,” etc.
•Everyone has an opinion on what they perceive each legal ruling to mean constitutionally.
Judicial philosophy
______(original intent or Strict Constructionist)
•Interpreted according to what the Framers intended
•______Justices
•______Constructionist
•Interpreted according to the times, the Constitution was meant to be flexible
•______Justices
•______Construction – Courts interpret the act of Congress.
Video: Thinking Like a Political Scientist
Why do legal scholars and political scientists disagree over how judges make decisions?
In this video, East Central University political scientist Christine Pappas analyzes this and other questions scholars study. She explains how the other branches of government limit the role of the judiciary in public policy-making, and discusses research on how public opinion influences the courts.
Implementing Court Decisions
Judicial implementation
______population
•Relies heavily on lawyers and judges to understand and reflect the intent of their decision in subsequent actions
______population
•Rely on other branches of government to implement
•Controversial policy area far out of step with public opinion would cause problems of enforcement by other branches
•______population
- Those affected by the decision, who must be aware of and demand implementation and enforcement of a decision that benefits them in some way
Image: Virgil Hawkins
The Court ordered the all-white University of Florida Law School to admit Virgil Hawkins, but it never did so.
Review Question
What principle governs judicial decision making?
- Stare decisis
- Ex post facto
- Amicus curiae
- Quid pro quo
Explore the Simulation: You Are a Supreme Court Clerk
Through the power of judicial review, the Supreme Court has the last word on issues of constitutional interpretation. Supreme Court justices can strike down federal legislation. In this simulation, you’ll explore this process as you serve as a Supreme Court clerk.
Courts and Public Policy: A Historical Review (LO 16.4)
Throughout American history, the Supreme Court has made controversial decisions with major public policy implications.
The types of questions before the Court have changed over time. The founding era was dominated by questions of federal supremacy, and federalism issues continued to be raised throughout the nineteenth century.
Government’s regulation of the economy became a prominent issue in the early twentieth century.
Since the Second World War, questions of personal liberty and social and political equality have predominated.
John Marshall and the Growth of Judicial Review
______(1803)
•Jefferson defeated John Adams 1800 Election
•In the ninth hour, Adams appointed as many Federalists to the judiciary as possible
•New Secretary of State – Madison refused to deliver the outstanding commissions, William Marbury sued
______
•Court has power to interpret Constitution
Video: In Context
The Marbury v. Madison decision had a huge effect on the way the United States is governed.
In this video, East Central University political scientist Christine Pappas discusses Marbury v. Madison and analyzes how the power of judicial review has impacted campaign finance law.