The Judiciary

Chapter 17

• “ a government of laws and not of men.” –John Adams, 1780

• Russell Kirk said “…the grim order of Communism is better than no order at all.”

• Textbook quote page 385: “Despotic laws that produce order are more desirable than unrestrained freedom.”

• Do you agree or disagree with that idea?

• Law originates from God, but society can be just only to the extent that humans restrain human wickedness on the basis of scriptural morality.

Sources of American Law

• Law and justice are themes of Scripture.• First five books = “The Law”• God is the Judge of the earth.• Micah 6:8 Who has shown you, O Man, what

is good and what the Lord requires of you? But to do justly and to love mercy and to walk humbly with your God.

• God’s standard of justice is his own character.• Justice is conformity to God’s character.– How are humans limited in administering justice

by this definition?

History of Western Law

• Code of Hammurabi – Babylon, Mesopotamia• Law of Twelve Tables – Rome• Romans found commonsense solutions to everyday legal

problems

• Justinian Code – collected Roman law in one place• English Common Law – followed precedents• England took its legal system to its colonies

• Code Napoleon

• Blackstone collected the English laws into one book called the Commentaries on the Laws of England in 1765.

• Natural Law – expressed through creation, given to all men

• Revealed Law – set forth in the Bible

• Common Legal Terms page 389

What is Judicial Federalism?

• The court system is layered.–State courts–Federal courts

State Courts

• More than 95% of the nation’s legal actions are heard in state courts.

• Criminal and Civil Courts

Types of Cases Heard in Federal Court:

• Constitutional violations• Congressional violations• Treaty violations• Suits between foreign nations and U.S. or U.S.

citizens• Cases involving U.S. ambassadors• Crimes committed at sea on U.S. vessels• Crimes committed on federal property• Suits between states or citizens of different states

District Courts

• Judiciary Act of 1789 created a system of courts inferior to the Supreme Court, which included District Courts.

• Originally there were 13; now there are 94 District Courts.

• Have Original Jurisdiction in most federal cases. (They hear it first.)

District Courts

• A grand jury indicts or charges an accused person. (determine whether enough evidence exists to take the case to trial).

• A petit jury or trial jury hears the case and decides the verdict.

• 300,000 cases are heard in Federal District Courts each year. (85% of the federal caseload)

Each district has a

• U.S. Attorney – prosecutes criminal cases; represents the federal government in civil cases

• U.S. Marshal – provides protection for federal judges, transports federal prisoners, protects endangered federal witnesses, and manages seized evidence and assets, pursues and arrests federal fugitives.

Circuit Courts of Appeals

• Second Tier of the federal judicial system.• Originally 3 circuits; now 12 circuits• Circuit Courts have appellate jurisdiction.

They hear appeals after a lower court has made a decision. They rule on errors in procedure or judicial interpretation.

• Most cases are decided based on written briefs. Occasionally they are heard en banc.

The Supreme Court

• Third tier of the federal judicial system• Most powerful court in the world• Supreme Court judges are called “justices.”• Originally there were six; since 1869, we’ve

had nine.• One chief justice and 8 associate justices

The Supreme Court

• Both original and appellate jurisdiction, but takes very few original jurisdiction cases involving ambassadors.

• Writ of Certiori – appeals from state courts and federal circuit courts

• The Supreme Court hears fewer than 100 cases a year, although thousands appeal to the Supreme Court.

The Supreme Court

• Each justice has law clerks, recent law school grads who review cases and write memos about the cases for the justices.

• Four justices have to agree to hear a case for the Supreme Court to accept it.

• Typically the Supreme Court only takes cases which lower courts have disagreed on or those involving significant matters of public policy.

The Supreme Court

• In a Supreme Court case, lawyers for each side present written briefs of the case.

• Then a date is scheduled for each side to argue its case (one hour and 30 minutes each).

The Supreme Court

• Majority Opinion – is the winning opinion in which a majority of the justices agree. They will write a paper explaining their opinion.

• Dissenting Opinion – is written by those justices who disagree with the majority saying why they oppose the decision. Sometimes these minority opinions are used as justification for overturning a decision in another case down the road.

The Supreme Court

• Some decisions are written without an opinion – per curium

Selecting Judges

• In Texas, state judges are elected in partisan elections.

• Some states have non-partisan elections• Some states have judges appointed by govs.• Some states’ legislatures appoint justices

Selecting Judges

• Federal judges are appointed by the president• Confirmed by the U.S. Senate• Hold office for life

• Advantage: Wise old judges may use their experience to untangle complex legal questions.• Disadvantage: Some stay in office after they have

become impaired.

Selecting Judges

• Supreme Court Justices are nominated by the president and confirmed by the Senate.

• Confirmation hearings can be very tough because the candidates come under close scrutiny.

The Current Supreme CourtJustice Appointed by Date

John Roberts, Chief George Bush 2005

Antonin Scalia Ronald Reagan 1986

Anthony Kennedy Ronald Reagan 1988

Clarence Thomas George H.W. Bush 1991

Ruth Bader Ginsburg Bill Clinton 1993

Stephen Breyer Bill Clinton 1994

Samuel Alito George Bush 2006

Sonia Sotomayor Barak Obama 2009

Elena Kagan Barak Obama 2010

Constitutional and Legal Change

• Originally the Supreme Court was rather weak.• Under Chief Justice John Marshall 1801-1835,

the Supreme Court’s powers expanded greatly.

The Marshall Court

• Doctrine of Judicial Review – Supreme Court could declare executive and legislative acts unconstitutional. Case: Marbury v. Madison

• Supremacy Clause: the Constitution and the laws of the U.S. are the “supreme law of the land.”

• Expanded federal power.

Major School of Constitutional Interpretation

• Judicial Restraint: Strict constructionism – judges should apply only the clear statements of the Constitution to make their decisions.

• Judicial Activism: Broad constructionism – judges interpret the Constitution to meet present needs and make policy as necessary.

The Warren Court

• Brown v. Board of Education of Topeka – forbade segregation in schools

• Miranda v. Arizona – – Police cannot use evidence seized without a

warrant.– Suspected criminals must be informed of their

rights.

Later Courts

• Roe vs. Wade 1973 – applied the 4th amendment to abortion and allowed it to be legal

• Lawrence and Garner v. Texas 2003 – declared laws forbidding sodomy unconstitutional

• Do justice or play the game according to the rules?

• A nation of laws or a nation of men?