Chapter 15

The Federal Courts

The Federal Courts

The Legal SystemObj: Identify the general types of cases and types of courts in our legal system.

• “A government of laws and not of men.” John Adams, describing the new Massachusetts state constitution

• Rule of law: all are equal before the law and none are immune from it.– Fundamental fairness expectation Americans have of the

judicial system• "That’s not fair" is a tacit reference to rule of law

The Legal System

• Criminal law: the branch of law that regulates the conduct of individuals, defines crimes, and specifies punishments for criminal acts.– Government is always the plaintiff– Defendant cannot be forced to testify– Standard: guilty beyond a reasonable doubt– Penalties: fines, public service, imprisonment, death

The Legal System

• Civil law: the branch of law that deals with disputes that do not involve criminal penalties.– Plaintiff is the party that has been legally wronged– Defendant can be forced to testify– Standard: preponderance of evidence– Penalties: typically monetary

The Legal System

• Precedent: previous decisions from prior cases that are used to understand how a law is applied

• Stare decisis: "let the decision stand"– The use of precedent in a current case– The court is hesitant to overturn precedent

Types of Courts

• State versus federal• Trial versus appellate• State supreme court

• Each level (state and federal) has 3 tiers of courts• District• Appellate• Supreme Court

The U.S. Court System

Types of Courts

• State vs. federal courts– Depends on the law in question

• Federal law Federal court• State law State court

• State cases can be appealed in the federal system if there has been a violation of the U.S. Constitution.

Types of Courts

• Trial vs. appellate– Trial courts apply law to the facts of a given case.

• Facts of the case are introduced• Judges and juries make sense of how facts relate to law.• Trial cases take both law and precedent into account.

Types of Courts

• Trial vs. appellate– Appellate courts examine whether the law has been

applied correctly in a trial court case.• New facts cannot be introduced.• If new facts are available, the case goes back to a trial

court.• Appeals courts hear far fewer cases than trial

courts– Typically dwell on complicated elements– Sole concern: whether laws applied correctly

Types of Courts

• Supreme Court– The court of last resort– Has final interpretation over the Constitution and statutory

law, be it state or federal– No state constitution can run contrary to the federal

constitution– Recall, the Supreme Court is an appellate court

• No new facts allowed

Types of Courts

• Jurisdiction: where court has authority, power• Federal court domain includes:

– Cases between states– Ambassadors– Federal law– U.S. Constitution

• State and local courts have no say in the kinds of cases listed above.

The Federal Courts

Types of Courts

• Federal courts:– 94 judicial districts, plus three for territories– 11 regional circuits, plus one for the District of Columbia– U.S. Court of International Trade– U.S. Court of Federal Claims– U.S. Court of Appeals for the Federal Circuit– U.S. Court of Veterans Appeals– U.S. Court of Military Appeals

Types of Courts

• Habeas corpus– A prisoner can appeal for a writ of habeas corpus to a

court, claiming a violation of rights.– For a federal court to intervene in a state case, the

prisoner must argue that a federal right has been violated.

Federal Jurisdiction

• In 2008:– Federal district courts heard 349,969 cases.– Federal courts of appeal heard 61,104 cases.– U.S. Supreme Court heard 75 cases.

• Procedures of note– Only hear appeals they determine have merit– Three judges on the panel (no jury)

Federal Trial CourtsEQ: Describe the different levels of federal courts and their functions.

• Original jurisdiction: the ability to hear a case for the first time

• Appellate jurisdiction: the power to hear appeals from a lower court (reviews lower courts decisions)

Federal Appellate Courts

• 89 courts in 50 states, +1 Puerto Rico, +1 D.C., three territories– Staffed by 679 judges– Almost always one judge per case

• All areas of the United States and territories are covered by one of 12 circuit courts.– Each court has six to 28 judges.– Each trial usually has three judges.

Federal Appellate Courts

The Supreme Court

Supreme Court Background

Article III of the Constitution establishes the federal judiciary. Article III, Section I states that "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it.

Congress first exercised this power in the Judiciary Act of 1789. This Act created a Supreme Court with six justices. It also

established the lower federal court system.

How Judges Are Appointed

How Judges are Appointed

• Appointed by the president and confirmed by the Senate. • Senate confirmation only requires simple majority (51%)• Life terms! (“with good behavior”)

• Why?• Insulated from political pressure.

• Generally from more prominent and/or politically active members of the legal profession. • Why????

• President is most likely to appoint LIKE-MINDED JUDGES!

How Judges are Appointed

Selection Criteria• Party ideology• Party and personal

loyalties• Acceptability of the

Senate• Judicial experience• Race and gender• Litmus test- will this

person work?

How Judges are Appointed

• Can they be removed?• Yes, impeachment for “bad behavior”

(corruption, perjury, bribery, etc.). Starts in the House and tried in the Senate. • Generally done after judge is in jail.

• Nixon v. United States• Senate has sole jurisdiction to “try”

impeachments and that definition is broad.

How Judges are Appointed

• Senatorial courtesy– Senators from the president’s party suggest nominees for

district courts in their state when an opening appears.– President chooses from the list, then the Senate confirms.– The confirmation process has become highly political in

recent decades.

The U.S. Supreme Court

• Nine justices– Chief justice and eight associate justices

• System of equals, which functions on seniority basis• All judges have equal say, and each has one vote.• If chief justice sides with the majority opinion, he

assigns the writing of the majority opinion.• If chief sides with the minority opinion, the most senior

justice in the majority does.

Supreme Court Justices, 2009 (in Order of Seniority)

WHO ARE AMERICANS?

Who Are Federal Judges?

CHAPTER 15

WHO ARE AMERICANS?

Federal Judges in 2009, by Race and Gender

White men860

SOURCE: Russell Wheeler, 䇾 The Changing Face of the Federal Judiciary 䇿 (Washington, DC: Brookings Institution, 2009). Data are from August 2009.

African American men84

Hispanic men58

White women225

African American women40

Hispanic women 26

= 10 federal judges

WHO ARE AMERICANS?

Appointments to Federal Courts, by Administration

White men

White women

African America men

African American women

Hispanic men

Hispanic women

Asian America men

Asian American women

SOURCE: Russell Wheeler, 䇾 The Changing Face of the Federal Judiciary 䇿 (Washington, DC: Brookings Institution, 2009).

KENNEDY/ JOHNSON

NIXON/ FORD CARTER REAGAN G.H.W. BUSH CLINTON G.W. BUSH OBAMA

93% 95% 66% 86% 72% 52% 67% 36%1% <1% 12% 7% 16% 23% 16% 27%4% 3% 12% 1% 7% 12% 5% 10%

<1% 1% 3% <1% 1% 4% 2% 7%1% 6% 5% 4% 6% 6% 5%

<1% <1% 2% 4% 5%2%3%

The Power of the Supreme Court: Judicial Review

Judicial Review

• Judicial review: the power of the courts to review and, if necessary, declare actions of the legislative and executive branches invalid or unconstitutional.

• The U.S. Constitution does not mention judicial review.– Marbury v. Madison (1803)

Judicial Review of Acts of Congress

• Supremacy Clause and Judicial Act of 1789– All state laws and actions must be in conformity with the

U.S. Constitution, federal laws, and treaties.

Judicial Review of State Actions

The Supreme Court struck down a California law that regulated the sale of violent video games to children, stating it violated the first amendment.

• Supremacy Clause• Civil Rights movement

and incorporation through the 14th amendment.

Judicial Review of Federal Actions

• Congress’s dilemma: make laws too broad, and the executive branch can subvert them; make them too narrow, and they cannot adapt over time.• Ex. Air quality legislation

• The Court is hesitant to overturn executive-branch decisions because Congress can do so.

Judicial Review and Presidential Power

• Historically, the Court is hesitant to judge presidential authority during wartime.– Allowed imprisonment of

Japanese Americans in WWII (Korematsu v. United States)

– Deferential to handling of “enemy combatants" during Iraq War

Judicial Review and Lawmaking

Savana Redding was strip-searched by school officials who suspected she was holding prescription pills. The Court ruled the search was illegal.

Is the Supreme Court using the “due process” clause of the 14th amendment to “make law?”

Judicial Review and Lawmaking

• Common law: body of law stemming from judges, not from statutes– Allows courts to function in the absence of lawmaking,

just as executive orders do• Appellate courts also make rules that apply to how

courts decide cases.

Rules of Access

• “Cases and Controversies": there must be an actual dispute, not a hypothetical one.

• Standing: a party must have standing to sue by being a stakeholder in the outcome.

• Standing gives the legal right to initiate a case.• Mootness: a criterion used to dismiss cases that no

longer require a resolution.– The issue is resolved; nothing to address.

Cases Filed in U.S. Supreme Court

Formal written opinions per year = 80-90

Writ of Certiorari

• SCOTUS is more likely to "grant cert" t o cases where:– An important civil right or civil liberty is at stake.– Appellate courts have ruled differently on the same law,

and it needs to be applied universally.– The federal government is filing the appeal.

– Note: the Court is free to choose which cases to hear with few restrictions.

Solicitor General

• Federal government’s top lawyer– All cases before the Supreme Court are argued by an

attorney from the solicitor general’s office, often by the solicitor general himself or herself.

– When the solicitor general requests a writ of certiorari, the justices take the request extremely seriously.

– Currently Donald Verrilli (appointed 6/9/2011)

Amicus Curiae

• Amicus briefs can be filed by any stakeholder in a case, even if that person is not directly involved in the litigation.– Useful sources of legal interpretation and facts- Often used by interest groups to lobby courts.

Lobbying for Access

• Some interest groups have long-term legal strategies.– Bring test cases under the most favorable

circumstances– Bring cases in specific circuits, expecting the appeals court

to side a certain way– Have access to top experts in the field

The Supreme Court’s Procedures

The Supreme Court’s Procedures

The Supreme Court’s

Decision- Making Process

The Supreme Court’s Procedures

• Preparation– Both sides submit briefs, as do other interested parties.– The attorneys will also prepare extensively for the

questions they may face.– By the time a case reaches the Supreme Court, the

original attorneys may be replaced by more experienced attorneys.

The Supreme Court’s Procedures

• Oral argument– The Court meets three times per week when in session.– Each side gets a half hour, with many interruptions.– Sometimes, several different attorneys will address

different aspects of the argument.

The Supreme Court’s Procedures

• The conference– Justices meet by themselves on Wednesdays and Fridays

when in session.– Hold an initial vote– Chief justice or most senior justice will assign a justice to

write the majority opinion.– Usually the dissenting opinion is assigned as well.– Most opinions are written by the clerks under

the supervision of the justice.

Political ideology

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

I. Judicial activism. A. Philosophy that the courts should take an active role in

solving society’s problems. B. Courts should uphold the "guardian ethic:" they act as a

guardian of the people.C. Examples of judicial activism:

1. Striking down Topeka School Board’s policy of seg. in Brown v. Board (1954)

2. Striking down a Texas law that banned flag burning in Texas v. Johnson, 1989, and then striking down a congressional law that banned flag burning (US v. Eichmann)

3. Striking down the Gun Free School Zones Act in US v. Lopez, 1995.

4. Striking down line item veto in Clinton v. NY 19985. Striking down Florida recount in Bush v. Gore 20006. Striking down state death penalties for mentally retarded in

Atkins v. Virg., 2002 Striking down a Texas sodomy law in Lawrence v. Texas Striking down a DC city ordinance banning handguns in DC v.

Heller, 2008

JUDICAL ACTIVISM V. JUDICIAL RESTRAINTII. Judicial restraint. A.Philosophy that the courts should

allow the states and the other two branches of the federal government to solve social, economic, and political problems.

B.Federal courts should act only in those situations where there are clear constitutional questions. They should otherwise defer to elected lawmakers.

C.Courts should merely interpret the law rather than make law.

D.Suggests that courts should follow original intent of Founders: decide cases on basis of what the Founders wanted.

Associate Justice Antonin Scalia is a Strong Proponent of Judicial Restraint

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

III. Historical developments. A. In 20th century, prior to 1937,

liberals complained about the conservative Court being too activist when it struck down various reform-minded laws (e.g., minimum wage, banning child labor, NRA, AAA).

B.FDR responded with his "court-packing" attempt in 1937 ---> failed, but the Court, in itsfamous "switch in time that saved nine," began to accept New Deal legislation.

FDR “Packing Event” Characterized in Satire

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

C. Now, it was the conservatives who began to complain about the liberal Court being too activist, especially with the advent of the Warren Court (1954-1969). Conservatives began to complain about the Court's judicial activism in:

1. Rights of the accused, e.g., requiring the police to issue "Miranda warnings."

2. Civil rights, e.g., desegregating public schools in Brown v. Board.

3. Civil liberties, e.g., of prohibiting prayer in school.4. Political issues, e.g., Baker v. Carr, 1962.

D. The Burger Court (1969-1986) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade and UC Regents v. Bakke

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

E. We have now come full circle because the Rehnquist Court (1986-2005) wasaccused by liberals of being too activist -- when it overturns liberal precedents, liberals accuse the Court of being excessively activist, e.g.:

Overturning Gun Free School Zones Act Overturning Florida Supreme Court

decisions in election of 2000 Overturning California’s Proposition 215

that legalized medical use of marijuana

F. Similar views are held about the Roberts Court (2005 – present), e.g. DC v. Heller

Chief Justice Rehnquist

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

IV. Restraints on judicial power.

A. Courts can make decisions, but cannot enforce them

B.Courts cannot reach out and take cases, but must wait for the cases to come to them.

C.Courts can rule only on real, live controversies. They cannot “create” cases.

D.Presidential appointment of judges

How Much Judicial Restraint for CJ John Roberts?

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

E.Congress.

1. Senate confirmation of judges.2. Impeachment and removal.3. Increasing the number of courts and judges, and

thus the type of judges to Congress' and the President's liking. For example, in 1979, Congress (Democratic) created 152 new District and Appeals Court positions. Coupled with resignations and retirements, President Carter (Democratic) ended up appointing 40% of all federal judges during his one term of office.

4. Passing constitutional amendments (e.g., 14th Amendment overturned the Dred Scott decision, 16th Amendment allowed for an income tax that the Supreme Court had struck down in the late 19th century). Arlen Specter, Chairman of the Senate

Judiciary Committee

JUDICAL ACTIVISM V. JUDICIAL RESTRAINT

5. Repassing a law that was unconstitutional in hopes that the Supreme Court will change its mind.

6. Determining the jurisdiction of the courts -- what kinds of cases the courts can and cannot have. Article III, Section 2 of the Constitution may give Congress the power to prevent the Supreme Court from hearing certain types of cases (“In all other cases … the Supreme Court shall have appellate jurisdiction …with such exceptions … as Congress shall make.”)

E.Stare decisis.F. Existing laws.

Flag Defamation versus Free Speech

JUDICAL ACTIVISM V. JUDICIAL RESTRAINTG. The Constitution.H. Public opinion: The Supreme

Court probably does not "follow the election returns“ in the short run because the Justices were appointed by previous Presidents for life terms. In the long run, however, the Court will probably reflect public opinion because the Justices are appointed by Presidents who were elected by the people

Final Thoughts…

Liberalism and conservatism are not connected to activism and restraint. They are completely different concepts!Although the Constitution should always be the main focus, there are many factors that go into the opinion (decision) of each Supreme Court justice. And each justice weighs those factors differently.Whenever one side (liberal or conservative) is upset with the power and decisions of the other, they will claim judicial activism.

Traditional Limitations on the Court

• Standing limits the ability of many to bring issues into the courts.– Members of Congress have repeatedly tried to force

the president to obey the War Powers Act.• The Court is willing to protect classes, but hesitant to

remedy with broad reparations.• The Court has no mechanism to force the other

branches to obey.• Congress can limit access to the Court.