Post on 29-Apr-2022
The Federal JudiciaryLesson Objective:
In order to understand the decision making process in the
Supreme Court, students will internalize and review the key
structural and procedural aspects of the Federal Court System.
Students will work to analyze, evaluate and synthesize various
scenarios and determine jurisdiction.
Unit Essential Question: To what extent is having an unelected
group of 9 lawyers making decisions for all of America good
for democracy?
Aim:
How is the court system structured?
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I. The Authority to Run a Court System
A. Article III of the Constitution creates the SUPREME COURT.
B. Allows CONGRESS to create “inferior” (lesser) courts.
C. Article of Confederation did NOT include any court system.
D. Without interpretative ability, law is a “dead letter.”
II. The Federal Courts do NOT Cover
Everything
A. Under FEDERALISM, BOTH the states AND the federal
government operate court systems.
B. Each of the 50 states has its own body of law and its own court
system.
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If you break state law, you will be tried in a state court
(murder, robbery).
If you break federal law (pornography, wire fraud, bank
robbery, kidnapping), you will be tried in federal court.
Sometimes, state law will be used in federal court when the
parties are from different states.
There are some cases that are EXCLUSIVELY heard by
federal courts (interpretation of federal law).
C.
E.
D.
F.
The District Courts
District courts have original jurisdiction
over most of the cases heard in the federal
courts
District courts hear both civil and
criminal cases
District courts use both grand and petit
juries
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III. There are Two Types of Law
CRIMINAL
:
CIVIL:
Laws passed by a legislature (state or federal) to
PROTECT SOCIETY and punish those who do not
comply.
Punishments include: fines; jail; possibly even the
death sentence
Laws that govern conflicts between PRIVATE
PARTIES or, sometimes, between a private party and
a government. Punishments include: penalties;
compensation being required to do (or not do)
something.
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IV. The Inferior Courts (Trial Courts)
A. Each state has at least one federal court (Federal District Court)
B. Some states have various “districts” (NYS has 4)
C. There are 94 districts across the 50 states.
D. Some states (with low population) have only 1 district.
E. Populous states has numerous districts.
F. New York: 4 federal districts (based on geography).
G. 677 district court judges, each nominated by the president and
confirmed by the Senate on a simple majority vote.
H. Senators from each state usually suggest candidates.
I. No formal qualifications – not even a law degree!
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Let’s say you bring a federal lawsuit in Alaska. Then you must file
an appeal in the Ninth Circuit. The District of Columbia has its
own Court of Appeals.
Exclusive Jurisdiction
Federal
Admiralty
Antitrust
Bankruptcy
Federal Crimes
Patents
Cases against the US
Exclusive Jurisdiction
States
anything not Federal
Concurrent jurisdiction
Questionable jurisdiction
Citizenship cases
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V. What do Federal District Courts Do?
A. Each court holds TRIALS, using federal law.
B. Both civil and criminal cases.
C. Each district has at multiple judges.
D. JURISDICTION: The authority of a court to try (trial) and
decide a case.
E. There is EXCLUSIVE JURISDICTION and CONCURRENT
JURISDICTION.
F. Concurrent Jurisdiction: Sometimes the parties are from
different states, and so neither parrty will agree to a state court.
Court Officers
Each district court has many officials who
assist the district judge
Clerks – take care of the records of the
court’s proceedings, maintain the court seal
Bailiffs – keep order in the courtroom
Stenographers – keep an accurate record of
what is said in the courtroom
Court Officers
Magistrates – issue warrants of arrest, set bail, and can try certain minor offenses
Bankruptcy judges – at least one per district court
326 in the US, serve 14 year terms
United States attorneys – try cases before the district courts
Federal marshals – national police
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CIVIL LAWSUIT
Person charged has
CONSTITUTIONAL
RIGHT to have a jury (but
defendant may waive this
privilege).
Jury standard:
BEYOND A
REASONABLE DOUBT
CRIMINAL
LAWSUITJury NOT REQUIRED.
Can PERHAPS be
carried out just in front
of judge.
If a jury is used:
standard is
PREPONDERANCE
OF THE EVIDENCE
VII. Two Types of Trials
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VIII. Courts of Appeal
A. A Court of Appeal DOES NOT hold trials.
B. Instead, it REVIEWS the decisions of lower courts and determines
whether there were PROCEDURAL ERRORS OR ERRORS IN
INTERPRETING THE LAW.
C. Both State courts and federal courts have courts of appeal.
D. An appeal is NOT automatic (except in certain cases – such as a
capital case).
E. You must APPLY to have your case heard.
F. And the appeals court may either decide to hear the case or will
deny the appeal.
G. There are 12 federal Courts of Appeal. Each “circuit” covers
several states. A court of appeals hears appeals from the district
courts located within its circuit.
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VI. Appointment of Federal Judges
A. When there is a vacancy on a federal district court, the president
will usually ask the senators from that state for the names of
candidates.
B. This is called “Senatorial Courtesy”
C. Who can be a federal judge? ANYONE.
D. Most are state judges, law professors, former members of
Congress.
E. Most presidents will pick judges who are members of their own
political party – but don’t have to.
F. NO TERM LIMIT – federal judges serve until they retire or die or
are removed (very rare).
G. Only 13 federal judges removed since 1789.
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TRIAL COURT
Jury Trial
APPEALS COURT
If a party files an action to have the decision reviewed, it is heard
in a Court of Appeals.
The Court of Appeals DOES NOT conduct a new trial.
A PANEL OF JUDGES looks at the record to see if the trial was
properly conducted – errors of law. It can:
Uphold the decision ; or
Throw out the decision and ORDER A
NEW TRIAL
Defendant found guilty
Defendant
can choose
to not appeal
and accept
sentence
File APPEAL
The Courts of Appeal
Courts of appeals were created in 1891 as
“gatekeepers” to the Supreme Court
There are now 12 courts of appeals and 179
judges
Appellate courts are regional and usually
hear appeals from courts within their
circuits
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IX. Salary and Benefits
A. A judge of the Federal District Court makes $199,100.
B. This is about the salary a lawyer with two years of experience at a
top law firm will make!
C. Lifetime tenure (during “good behavior”).
D. Good medical and dental benefits for life.
E. Majority of the 677 Federal District Judges and 177 Court of
Appeals judges are white, over 40, and worked in corporate law or
federal positions.
F. Few judges come from public interest law, public defender
services, or the private sector.
G. Most judges have some sort of political connections and party
affiliation.
The Inferior Courts
The Courts of Appeal
They also hear appeals from the United
States Tax Court, the territorial courts, and
from decisions of federal regulatory
commissions
Each Supreme Court Justice is assigned to
one of the 12 circuits
Two Other Constitutional Courts
The Court of Appeals for the Federal
Circuit has 12 judges. It was set up in 1982
to centralize the appeals process in certain
types of federal cases and in cases from
certain lower and special courts
Has a nationwide jurisdiction
Hears only civil cases
Supreme Court is SupremeU.S
Supreme Court
U.S Courts of Appeals
U.S District Courts U.S. Court of Federal Claims
State SupremeCourt
State Appellate Courts
Trial Courts
Municipal Courts
Appeal
Inside a District Court-Courts housed in buildings with other federal offices
-”Chambers” include Judge, administrative assistant, 2-3 law clerks, court reporter, court room deputy
-150-400 active cases at any time
-30% criminal; 70% civil
-5-20 trials a year, but active daily schedule
Decision-Making Bodies
Federal Judges – lifetime appointment from
president
Appellate Court’s review all cases sent to
them, but not the Supreme Court
Dist. Ct. Ruling
App. Ct.
Sup. Ct. 1% of
petitions granted
1% of all filed cases go to trial
Panel (3) or en banc
Interpreting Caselaw
Court will look to see how other cases interpreted and applied the law to similar facts.
Anatomy of Civil Litigation
Initial Pleadings: Complaint, Answer, Counter Complaint, Motions to Dismiss,
Transfer, Lack of Jurisdiction
Pre-filing
Activity
Fact Discovery: Depositions, Documents,
Interrogatories, Inspections, Disputes,
eDiscovery
Expert Discovery: Technical Experts, Damages Experts, Liability Experts,
Reports, Depositions
Summary Judgment Briefs and Arguments
Pre-trial: Motions in
Limine, Exhibit and Witness
Lists, Jury Instructions
Trial: Opening, Fact and Expert
Witnesses, Closing
Post-trial Motions
Appeal: Briefs and
Hearing
The Supreme Court
West Side of the Court
Supreme Court
Front Facade
Back of Supreme Court
Contemplation
of Justice
Authority of Law
1810-1860
The Old Senate Chamber
Supreme Court Chambers
Conference Room
Supreme Court Library
The Supreme Court
Only court specifically mandated by the
Constitution
Has a chief justice and eight associate
justices
This is the highest court in the United States
and has the final authority on all questions
of federal law
Judicial Review
Judicial review is the power to decide on the constitutionality of an act of government
The Founders intended to give this power to the courts, but did not write it in the Constitution
Alexander Hamilton discussed this idea in Federalist 78 (quote p. 472)
The principle was established in the case of Marbury v. Madison (1803)
Judicial Review
Court often exercises this power
Constitution is the Supreme law of the land
Article VI
All legislative enactments are subordinate to
the Constitution
Judges are sworn to enforce the provisions
of the Constitution
Jurisdiction
The Supreme Court has great power as the
ultimate authority on constitutionality and
as the arbiter of disputes between States and
between States and the Federal Government
The Supreme Court has both original and
appellate jurisdiction
Jurisdiction
Original Jurisdiction is based on Article III
Section 2
Cases to which a State is a party
Cases involving Ambassadors, other
public Ministers, and Consuls
Jurisdiction
Congress has provided that the Court shall
have Exclusive and Original jurisdiction
over:
Ambassadors or other public Ministers
Cases between States
Congress can control the appellate
jurisdiction of the Supreme Court
Jurisdiction
Can remove any appellate jurisdiction that it
wishes
But most of its cases are appeals
Since 1925, the Supreme Court has had
almost complete control over its own
caseload
How Cases Reach the Court
Over 6,000 cases are appealed to the Supreme Court each year
The Court will select only a few hundred to be heard
Under the “Rule of Four,” at least four justices must agree that the Court should hear a case before the case is selected for the Court’s docket
How Cases Reach the Court
The Court will dispose of half of the cases
with a simple, brief, written statement
The Court decides, with full opinions, only
about 100 cases per year
Most cases reach the Court by writ of
certiorari – an order to a lower court to send
the record in a given case to the Supreme
Court for its review
How Cases Reach the Court
Certoriari (“cert”) is granted in only a
limited number of cases
Constitutional question
When “Cert” is denied, the lower court
ruling stands
A few cases reach the Court by “certificate”
Not clear about a rule of law
How Cases Reach the Court
Most cases reach the supreme Court
through the State Supreme Courts and the
Federal Courts of Appeal
The Supreme Court
Chief Justice
John Roberts (Bush, 2005)
Associate Justices
John Paul Stevens (Ford, 1975) - retired
Antonin Scalia (Reagan, 1986) – died
Anthony Kennedy (Reagan, 1988) - retired
David Souter (Bush, 1990) - retired
The Supreme Court
Clarence Thomas (Bush, 1991)
Ruth Bader Ginsburg (Clinton, 1993)
Steven Breyer (Clinton 1994)
Samuel Alito, Jr. (Bush, 2006)
Sonia Sotomayor (Obama, 2010)
Elena Kagan (Obama, 2012)
Neil Gorsuch (Trump, 2017)
Brett Kavanaugh (Trump, 2018)
Chief Justice John Roberts
•George W.
Bush appointed
•Age 58
Antonin Scalia
(died 2015)
•Ronald Reagan
appointed
•Age 77
Anthony Kennedy
(retired 2018)
•Ronald Reagan
appointed
•Age 73
Clarence Thomas
•George Bush
•Age 66
Ruth Bader Ginsburg
•Bill Clinton
appointed
•Age 80
Steven Breyer
•Bill Clinton
appointed
•Age 66
Samuel Alito, Jr.
•George W.
Bush appointed
•Age 64
Sonia Sotomayor
•Barack Obama
appointed
•Age 60
Elena Kagan
•Barack Obama
appointed
•Age 54
The Court is Shrouded in Secrecy
We will discuss how a case moves through the Court with particular attention to: The role of law clerks
The strategy, negotiation, and compromise among the nine justices at each stage of the process
We will conclude by asking whether a Court composed of unelected, unaccountable, elite lawyers is good for America.
Neil Gorsuch
•Donald Trump
appointed
•Age 51
Brett Kavanaugh
•Donald Trump
appointed
•Age 54
“The Nine
Old Men (and
Women)”
Research shows that the nine justices are generally divided along ideological lines: 5 Conservatives: Roberts, Thomas, Alito, Gorsuch, Kavanaugh
4 Moderate Liberals: Kagan, Sotomayor, Ginsburg, Breyer
Sorcerers’ Apprentices: Law Clerks
Each justice has 4 clerks, the Chief 5, and retired justices 1
Recent Law School graduates largely from: Harvard, Yale, Chicago, Columbia, Stanford, Virginia, Michigan
One-year clerking experience on the U.S. Courts of Appeals
One year on the Supreme Court.
After clerkship they can choose any job they want.
The Supreme Court at Work
The court term begins at 10:00 am on the
first Monday in October
The term will usually end in June or July
Justices hear cases in two-week cycles
Usually will hear oral arguments on
Monday, Tuesday, Wednesday, and
sometimes Thursday
Deciding to Decide
Discretion - the Court
largely chooses which cases
(petitions for write of
certiorari) it wants to
consider.
Of the nearly 10,000 cases
appealed to the Supremes
every year, only 70 or so are
decided with full written
opinions after oral
argument.
How can nine justices
examine nearly 200 petitions
each week?
Granting Certiorari Cert Pool - Cert petitions are
divided up between every law clerk
at the Court (except Justice Stevens’
clerks who work alone). The clerks
prepare a brief memo on each case
for all the Justices to read.
Excluding the Stevens clerks, there
are 34 clerks in the pool. Therefore,
each pool clerk reviews and writes a
memo on roughly six cases each
week.
Justice Stevens does not require his
clerks to write memos on all of the
petitions because if they did, each of
his 4 clerks would be writing nearly
50 memos each week!
Granting
Certiorari Cues - shortcuts that allow
clerks and justices to
determine cases “worthy” of
consideration:
U.S. government is a party
to the dispute.
Conflict among courts.
Conflicting ideology
between Supreme Court and
lower court(s).
Interest group participation.
When 2 or more cues exist in
the same case, chances of
obtaining cert are high.
In the above pool memo, the clerk notes a circuit split and recommends grant.
Granting
Certiorari Some justices have their clerks
“mark up” the pool memo with
their own views and
recommendations. Justice
Blackmun was suspicious of
ideological bias and asked his
clerks to mark up the pool
memo with the information
about the pool clerk who
drafted the memo: the clerk’s
first name, the justice they
currently clerk for, the lower
court judge they last clerked
for, and the law school
attended.A Blackmun clerk marks up the pool memo to note that it is from
“Margo” Schlanger, a Ginsburg clerk who attended Yale Law School.
Granting
Certiorari
Discuss List - The Chief
Justice with his clerks
makes up a list of cases
he thinks ought to be
discussed by the full
Court. The other justices
may add cases to the
“discuss list.”
Here, former C.J.
Rehnquist [WHR] lists
cases for discussion.
Cases not listed by any
justice are automatically
denied.
Granting
Certiorari Rule of Four – by
tradition, cert is granted if
at least 4 of the Justices
decide a case deserves to
be reviewed.
Here, Rehnquist and
O’Connor vote that they
will “join 3” meaning that
if three others want to
hear the case, they will
also agree to hear it.
Oral
Argument Clerks prepare lengthy
“bench memos” for their justices outlining the facts, issues, and possible questions to ask attorneys.
During oral argument, justices constantly interject with questions.
Research shows that oral argument matters. Quality arguments are more likely to win than poor arguments.
Justices often foreshadow their position on the case through their questions and comments.
Justice Blackmun’s oral argument notes provide a grade for each attorney. SG Wallace
gets a “6” on a 10-point scale while his opponent, a “young” “36”-year-old from “UCLA” Law School scores a “5”
Conference Vote
In Conference the justices meet
alone to discuss the cases they
have just heard oral argument in.
The Chief begins by stating the
facts of the case and stating his
vote. Votes proceed in order of
seniority with the most junior
justice speaking and voting last.
The justices keep track of the
voting and discussion.
Here, Justice Blackmun notes
that Justice Souter said he was
“troubled,” “close to” the
position of “J[ohn] P[aul]
S[tevens],” and not with “N[ino]
& K[ennedy].”
Opinion
Assignment A day or two after
conference, opinions are
assigned by the Chief
Justice if he was in the
majority. If he wasn’t, the
opinion is assigned by the
most senior justice in the
majority.
Who writes the opinion is
important because if 5 or
more justices agree, the
majority opinion is the law
of the land.
Above: C.J. Rehnquist’s Assignment Sheet shows that J. Stevens assigned
one opinion to J. Ginsburg while J. Blackmun assigned one to himself and
one to J. Stevens.
Opinion Assignment Strategy The Chief is concerned with
distributing the workload
evenly.
Chiefs often assign important,
groundbreaking cases to
themselves.
In closely divided cases,
opinions are assigned to justices
who are on the fringe or are
unsure of their position if their
vote will constitute a majority -
swing votes.
Some justices become expert in
a particular area and get the
opinion assignment in those
cases.
When Chief Justice Roberts and Justice Stevens
disagree, Stevens controls the opinion assignment.
Opinion Writing The justice who the opinion is
assigned to directs his/her law
clerk to write the first draft of
the opinion. When the justice is
satisfied with the result, it is
circulated to the other justices.
At right are Justice Blackmun’s
hand-written corrections to his
clerk-written draft of a death
penalty case where Blackmun
decided, “I no longer shall
tinker with the machinery of
death.”
Coalition Formation: The Clerk Network
After the majority opinion author circulates a draft, the clerks from the other chambers review it and if necessary suggest changes and make recommendations to their justices.
Memos are then sent to the opinion author. The clerk who originally drafted the opinion reviews them and makes recommendations to the justice about what should or should not be changed and why.
Clerks mine the “clerk network” during lunch-time, in the hallways, and on the basketball court—the highest court of the land—to find out information for their justice on the positions of the other justices.
Chief Justice Rehnquist with his Law Clerks. 2002.
Coalition
Formation:
Separate
Opinions Justices who are only partially
satisfied with the reasoning of the opinion, but agree with the result may issue their own concurring opinions.
Justices who disagree with the majority may write dissenting opinions.
At left is one of J. Blackmun’s circulation (log) sheets. He used these to keep track of the memos and separate opinions circulated in each case.
Conclusion Americans trust the Court far more than
congress or the presidency.
Some of the most controversial issues
in America have been decided by 5-4
votes on the Supreme Court: a
presidential election, affirmative action,
school prayer, abortion, etc.
Justices have life tenure.
No justice has ever been impeached and
removed from office.
Average life expectancy of justices is
87—ten years longer than U.S. average.
Should we make changes in judicial
tenure or in the way the Court operates?
J. Stevens was born on April 20, 1920
The Supreme Court at Work
Each lawyer must be on the approved list to
argue cases before the Supreme Court
Each side receives thirty minutes to argue
their case
Justices can interrupt a lawyer at any time
to ask questions about the case
When the red light goes on, the period is
over
The Supreme Court at Work
Briefs are the main way that information is
provided to the Justices.
Briefs, written documents supporting one
side of a case, are submitted before oral
arguments are heard
May run into the hundreds of pages
Amicus curiae (friend of the court briefs)
Can only be filed with court’s permission
The Supreme Court at Work
The Solicitor General represents the United
States whenever the US is a party to a case
He or she decides which cases to appeal to
the Supreme Court
The present Solicitor General is Paul
Clement
The Supreme Court at Work
The Conference:
Done behind closed doors
No written records are kept of the
proceedings
Chief Justice speaks first about the case
and lays out his reasoning about the rule
of law and how the case should be
decided
The Supreme Court at Work
The next senior justice then speaks and gives his point of view
Then each justice in order of seniority
Once all justices have had their say, the last justice appointed to the court will vote.
Then each justice will vote in order of seniority
The Supreme Court at Work
The Chief Justice will vote last giving
him the opportunity to break a tie, if
necessary
Quorum for the Court is six
Majority is necessary for a decision to be
rendered
4 of 6; 4 of 7; 5 of 8; 5 of 9
The Supreme Court at Work
If the vote ends in a tie, the decision of the
court that heard the case last, stands
If the Chief Justice is in the majority, he
will write the opinion of the court or will
assign this to one of the majority voters
If Chief Justice is in the minority, the senior
Justice in the majority will serve in this role
The Supreme Court at Work
Opinions that can be issued:
Opinion of the Court (Majority Opinion)
Outlines the court’s position and the
reasoning for that position
Concurring Opinion
Justice agrees with the majority but for
different reasons
The Supreme Court at Work
Dissenting Opinion
Justice believes that the Court erred in
its ruling and here are the reasons why
Stare decisis – let the decision stand
Creates the rule of precedent
Dissenting Opinion could be used to
overturn some future case