The Federal Judiciary - Typepad

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


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


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


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


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


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 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 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 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 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


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


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


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

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