The Judiciary15

The Judiciary

The job of courts is to resolve legal disputes using the adversarial system.

• Under an adversarial system, each party presents its version of events, with virtually all attempts to slant information short of lying under oath deemed acceptable.

Appeals

If trial courts make mistakes about questions of law, the American legal system allows for appeals.

• Appeals are heard by appeals courts and by the Supreme Court.

Types of Disputes

Trials resolve two distinct types of disputes. • In criminal cases, the government prosecutes an individual for

breaking the law.• In civil suits, a plaintiff sues a defendant to enforce a right or

to win monetary damages.– The U.S. Constitution guarantees jury trials in all criminal

cases and in all civil suits over $20.– Today, Congress limits access to the federal courts in

monetary civil suits to claims of $75,000 or more. – Suits for lesser amounts must go to state courts.

Criminal Law

Criminal law is based on statutory authority.• When there are gaps in statutory law, courts rely on judge-

made law known as common law. – Common law requires that judges accept and rely on

previous decisions or precedent.

Article IIIArticle III

Article III of the Constitution and the Judiciary Act of 1789 establish the judicial branch of government.

• Article III briefly refers to a Supreme Court of the United States and grants Congress the authority to create lower courts at its discretion.

• The Judiciary Act of 1789 established the structure of the courts:– Today there are 94 district courts, 13 circuit courts and 1

Supreme Court.

Jurisdiction

The lawful authority of a court to hear a case is its jurisdiction. • For the Supreme Court, there are two types of jurisdiction.– Appellate, which is the authority to hear cases from lower

courts (both state and federal)– Original, which is the authority to hear the case first.• The Supreme Court has original jurisdiction in cases

involving foreign dignitaries and disputes between states.

Judicial Appointments

The Constitution grants the president the authority to nominate judges, but these nominations are subject to the advice and consent of the Senate.

• Judges confirmed by the Senate serve during “good behavior,” or life, unless otherwise removed.– The Senate established a custom crucial to judicial

independence: that judges would not be removed due to partisan disagreements with their decisions.

Judicial Review

Constitutional interpretation brings forth the greatest power of the federal judiciary, judicial review. • Judicial Review is not found specifically in the Constitution.• The Supreme Court granted itself the power of judicial

review in the case of Marbury v. Madison (1803).

The Appointment ProcessDistrict Courts• When a vacancy occurs in a district court, the president

selects a nominee, but with awareness of how the senators from the state in which the court is located might react.

- Presidential staff consult with this state’s senators if they are members of the president’s party, because if one of them is opposed, he or she can invoke the norm of senatorial courtesy and receive the support of other members of the Senate in blocking that nominee.

- Confirmation of district court judges is generally routine, with nearly 90 percent of nominees since the Carter administration (1977–81) approved

The Appointment Process continued

The Court of Appeals• The formal process is the same as that of district court judges,

but outside interest groups pay closer attention to the nominees.

- Court of appeals judges represent multiple states, seats “belong to” particular states, so senatorial courtesy still applies. - The Senate has failed to confirm more than 20 percent of court of appeals nominees since Jimmy Carter’s administration.

- In 2010, Senate Republicans began extensive use of holds, a process by which a single senator can block the unanimous consent agreements by which the Senate operates, to prevent votes on many of President Obama’s nominees.

The Appointment Process continued

The Supreme Court• The appointment of a Supreme Court justice is a high-stakes

affair.• Often, presidents choose nominees in part because of

perceived electoral advantages. • Presidents also try to choose nominees who are close to them

ideologically, hoping to shape the direction of the Court.• In recent times, nominees for the Supreme Court always

receive hearings from the Senate Judiciary Committee. • There has been a substantial growth in interest group

involvement in Supreme Court nominations

Number of Interest Groups Supporting and Opposing Supreme Court Nominees

The Appointment Process continued

The Supreme Court (cont.)Once on the floor, senators debate the pros and cons of the

nominee until the vote is set.• The votes by senators largely depend on two crucial factors

about the nominees: their perceived ideology and their perceived qualifications.– The question of qualifications includes not just ability, but

also ethics. – Clarence Thomas• Race, religion and sex also play a role in determining who

is appointed to the Court.

Ideological Distance and Voting for Supreme Court Nominees

Qualifications and Voting for Supreme Court Nominees

Judicial Organization

The Courts of AppealsAbove the 94 district courts are the U.S. Courts of Appeals. They

are divided geographically into eleven circuits plus a circuit for the District of Columbia and a “federal circuit” that hears appeals from courts that deal with patents and customs.

• The number of judgeships in each circuit ranges from just six in the First Circuit, to twenty-nine in the Ninth Circuit.

• Regardless of the number of judgeships, the courts usually hear appeals from the district courts in three-judge panels.

• The courts have mandatory jurisdiction over cases appealed to it.

U.S. Courts of Appeals and U.S. District Court

The Supreme Court

Each year, about 8,000 losing litigants ask the Supreme Court to review their cases.

• The Court’s decision to grant certiorari is purely discretionary.

• The current Court hears about 100 cases a year.• Because of the number of cases appealed each year, law

clerks tend to do most of the early reviewing.

The Supreme Court continued

• Discuss list- list of cases deemed worthy of further discussion

that usually have one of the following characteristics:• The federal government is the party asking for review

(Solicitor General)• the case involves conflicts among the circuit court• the case involves civil rights or civil liberties• the case is of interest ideologically or politically to the

justices

The Supreme Court continued

The Supreme Court continued

• The Court grants cert through a rule of four. – Although five votes constitute a majority, the Court will

agree to hear a case if any four justices vote to grant.–Overall, the Court grants only about one percent of cert

petitions, leaving the lower court decision as final in the remaining 99 percent of the cases.

Oral Arguments

Parties normally receive thirty minutes each for oral argument, although the justices frequently interrupt with questions.

• Oral arguments for the U.S. Supreme Court have recently become available for the public on the Court’s website within days after case has been heard.– http://www.supremecourt.gov/oral_arguments/oral_argu

ments.aspx

The Decision

Within a few days of oral argument, the justices meet in conference to vote on the merits of the case, that is, to decide which side wins, and to assign a justice to write the Opinion of the Court in the case.

• If the chief justice is in the majority, he assigns who writes the opinion.

• If the chief is not in the majority, the assignment is made by the senior justice who is in the majority.

• It explains the Court’s justification for its decision and sets guidelines for other courts to follow in subsequent cases.

Opinions

• Majority opinion: Opinion of a court laying out the official position of the court in the case.

• Concurring opinion: Opinion by a judge that agrees with the court majority’s result (that is, which party wins) but sets out a separate rationale .

• Dissenting opinion: Opinions written by judges who disagree with the result reached by the majority as to who should win a case.

• Plurality judgment: Opinion of the court that results when a majority of the justices cannot agree on the rationale for a decision.

• Majority opinion: Opinion of a court laying out the official position of the court in the case.

• Concurring opinion: Opinion by a judge that agrees with the court majority’s result (that is, which party wins) but sets out a separate rationale .

• Dissenting opinion: Opinions written by judges who disagree with the result reached by the majority as to who should win a case.

• Plurality judgment: Opinion of the court that results when a majority of the justices cannot agree on the rationale for a decision.

Impact

The fact that the Supreme Court issues a decision does not necessarily mean that governmental officials will comply (see Brown I and II).

• If the decision is based on the meaning of a statute, it can be overturned by Congress, state legislatures, or through referenda.

• When the Supreme Court declares something unconstitutional, legislatures find it difficult to overturn.

• Most Supreme Court decisions are complied with. Following the Supreme Court’s Watergate decision, President Richard Nixon turned over the Watergate tapes, even though it meant the end of his presidency.

The Judiciary and Public Policy

The job of the courts is to interpret the law, but in doing so, they often appear to go beyond mere interpretation and instead get actively involved in policy making.

• According to the legal approach, justices base their decisions on legally relevant materials, such as prior court precedents, the plain meaning of the text of the law under consideration, and the intent of the Framers of the law.

The Extralegal Approach

Extralegal factors are those that go beyond the legal factors that courts are supposed to consider.

• The most important extralegal considerations include the justices’ own preferences and strategic considerations based on the preferences of others.– Justices take into consideration the preferences of their

colleagues, as well as other members of government (the President).

Ideology of Supreme Court Justices

Activism and RestraintGiven the undemocratic nature of judicial review, politicians

frequently decry judicial activists, judges who go beyond what the law requires and seek to impose their own policy preferences on society through their judicial decisions. • These critics insist that judges should act with judicial restraint,

that is, judges should respect the decisions of other branches, or, through the concept of precedent, the decisions of earlier judges.– Contemporary research suggests that justices respect the

decisions of legislatures and earlier judges when those decisions are consistent with the justices’ ideology.

Number of Federal Laws Declared Unconstitutional, 1790–2009

Focus Questions

• Why is the apparently simple requirement of providing “equal protection of the laws” in fact more difficult than it seems?

• In what ways do the federal courts lack traditional means of accountability?

• How are courts, nevertheless, responsive?• Do citizens have equal access to the justice system? Does the

justice system treat them equally?• Is the judiciary a gate, or a gateway, to democracy?