Chapter 15 The Judiciary American Democracy Now 4e

Chapter 15: The Judiciary American Democracy Now, 4/e

What Do Courts Do? n n The United States has an adversarial judicial system. A court must have jurisdiction: the legal authority to resolve a case. Trial courts have original jurisdiction. Appellate courts have appellate jurisdiction. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Marbury v. Madison and the Principle of Judicial Review n n n Initially, the federal judiciary was quite weak, with little effect on society, because the bulk of lawsuits were still resolved in the state court systems. Marbury v. Madison (1803) established the principle of judicial review. Today, the U. S. Supreme Court is the highest court of the land. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Dual Court System n n The existence of both a federal court system and 50 independently functioning state court systems defines the dual court system that exists in the United States. Citizens are subject to both state laws and federal laws. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Sources of Laws in the United States n n Law is a body of rules established by government officials that binds governments, individuals, and nongovernment organizations. There is a variety of sources of law in the United States, including constitutions, pieces of legislation, executive orders, rules and regulations made by administrative bodies, and judicial decisions. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Common Law n n Common law is judge-made law grounded in tradition and previous judicial decisions, instead of in legislation. The doctrine of stare decisis directs judges to identify previously decided cases with similar facts and then apply the rule of law used by the courts in the earlier cases to the current case. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Constitutional Law n n The U. S. Constitution is the supreme law of the land. The body of law that comes out of the courts in cases involving constitutional interpretation is known as constitutional law. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Legislation as a Law Source n n n Laws written by legislatures are called statutes. The U. S. Code is a compilation of all the laws ever passed by the U. S. Congress, and it reflects that body’s priorities and concerns. Each state has a penal code, which is a compilation of all its criminal law. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Executive Orders n n Article II, Section 1, of the U. S. Constitution states that “the executive power shall be vested in [the] president of the United States. ” This power has been interpreted to allow the president to issue orders that create and guide the bureaucracy in implementing policy. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Administrative Rules and Regulations: Administrative Law n n The rules, regulations, and standards made by public administrators have the force of law, even though the legislature has not voted to approve them. Administrative rule making fleshes out the broad principles in the statutory law and is a source of law. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Criminal Law n n Criminal law is the body of law dealing with conduct considered so harmful to society as a whole, even when directed against an individual, that it is prohibited by statute (a federal statute, state statutes, or both). Beyond a reasonable doubt: there is no reasonable doubt that the defendant committed the crime. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Civil Law n n Civil law is the body of law dealing with private rights and obligations that are established by voluntary agreements, statutes, constitutions, or common law. Preponderance of evidence: it is more likely than not that the accused caused the harm claimed by the complainant. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Trials Versus Appeals n n In a jury trial, a group of citizens hears evidence and determines guilt or innocence. In a bench trial, a judge hears evidence and determines guilt or innocence. Trials include presentation of evidence and examination of witnesses. Appellate cases involve briefs by lawyers and an examination of trial transcripts. Cases are decided by majority vote. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

State Law and Federal Law n n Federal laws apply throughout the United States. State laws apply only to those residing in the state and those visiting or doing business in the state. Problems arise when state law and federal law are in conflict. The federal court system has the authority to resolve conflicts over all federal law, as well as conflicts over the meaning of the U. S. Constitution. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw-Hill Education.

The Federal Court System n n Article III of the Constitution states that “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. ” Congressional legislation established the inferior courts and special courts with distinctive jurisdiction. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Jurisdiction of Federal Courts n n Article III, Section 2, of the Constitution strictly defines federal court jurisdiction. Federal courts are empowered to hear only cases involving a federal question or diversity of citizenship. A federal question is a question of law based on interpretation of the U. S. Constitution, federal laws (including common law, statutory law, administrative law, and executive orders), or treaties. Diversity of citizenship means that the parties in the case are individuals from different states or that the case involves a U. S. citizen and a foreign government. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Structure of the Federal Courts n n The federal court system is a three-tiered hierarchical system. At the bottom, in the first tier, are the U. S. district courts, which are trial courts with original jurisdiction over a case. In the middle tier of the federal system are the U. S. courts of appeals, which have appellate jurisdiction. At the top of the federal court hierarchy, in the top tier, is. Copyright the ©U. S. Supreme Court. 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

U. S. Special Courts n n n These include the U. S. Bankruptcy Court, the U. S. Court of Military Appeals, the U. S. Tax Court, and the U. S. Court of Veterans’ Appeals. Congress established the FISA in a 1978 act that spells out the procedures for the collection of human and electronic intelligence. FISA courts were charged with determining whether an individual could be subject to warrantless surveillance of his or her communications. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

U. S. District Courts n n n There are 94 federal district courts with 677 judgeships. District courts have mandatory jurisdiction: they must hear all cases filed with them. A judge presides over the trial court, and the judge, or a jury if the defendant chooses the jury option, decide what happened in the case based on the application of the law to the facts presented in the courtroom. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

U. S. Court of Appeals n n At the middle level of the federal judicial hierarchy are 13 courts of appeals. Congress has authorized 179 judgeships for these courts. The judges work in panels of three to review cases. Courts of appeals review the legal procedures of a preceding case and decide whether the law was applied appropriately given the facts already admitted into evidence. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw-Hill Education.

The U. S. Supreme Court n n n Hears appeals from both the federal courts and the state courts when cases decided there concern a federal constitutional question or when federal law is involved Has discretionary jurisdiction There are 8 associate justices and 1 chief justice on the Supreme Court. The latter provides both organizational and intellectual leadership on the Court. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Appointing Federal Judges n n n The Constitution gives the president the authority to nominate federal judges for the district courts and the courts of appeals, as well as justices to the Supreme Court using whatever criteria he or she chooses. The Senate has a check on the president’s power to nominate federal judges and justices because the Constitution delegates to that body the power of advice and consent for federal judges. The Constitution established the term of office for federal judgeships created under Article III to be “during good behavior. ” Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Selection Criteria n n n Judicial competence Ideology Representation of demographic groups q q q n Descriptive representation Substantive representation Symbolic representation Political considerations Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Senate’s Role: Judicial Confirmation n n In the case of the federal district court judges, a custom known as senatorial courtesy gives senators—although only those who are of the same political party as the president—a powerful voice in choosing the district court judges who will serve in their state. In the selection procedure, for courts of appeals judges and U. S. Supreme Court justices, the Senate Judiciary Committee plays a prominent role. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Judiciary Where Do You Stand? Do you think the president should consider gender and racial diversity when naming a potential Supreme Court judge to the bench? a. Should consider b. Should not consider Source: Newsweek Poll/Princeton Survey Research Associates International, www. pollingreport. com/court 2. htm. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

How the U. S. Supreme Court Functions n n Decision making on the Court is a multistep process that provides many opportunities for conflict and compromise. As a collegial court, which means it is made up of a panel of justices who must evaluate a case together and decide by majority vote the outcome, Supreme Court justices must work together as they navigate the process. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Choosing Cases for Review n n In the vast majority of cases, the Supreme Court is reviewing a decision made by a lower court rather than exercising original jurisdiction. Approximately 7, 000 certiorari petitions are filed with the Court each year, each asking for the review of a case already decided. Ultimately, the justices agree to review approximately 100 cases Supreme Court clerks prepare a cert memo. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Choosing Cases for Review n n The writ of certiorari is a higher court’s order to a lower court to make available the records of a past case. The justices determine whether they will consider a case according to a practice known as the Rule of Four. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Considering the Case n n n Parties to the lawsuit file briefs with court. A person or group that is not party to the lawsuit may file amicus curiae brief with court. Oral arguments give the justices the opportunity to ask the parties and their lawyers specific questions about the arguments in their briefs. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Meeting in Conference and Assigning Opinion Writing n n After the justices have listened to the oral arguments in the case, they meet in conference to deliberate. The chief justice plays a vital role in this process. After the likely votes of the other justices are tallied in the conference, the chief justice decides whether he is with the majority. If he is, he chooses whether he wants to write the majority opinion. If he declines, he can assign the task to one of the other justices in the likely majority. If the chief justice is not with the majority, the senior member of this majority decides whether to write the opinion or assign the opinion to another justice. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Deciding How to Vote n n Judicial scholars offer three judicial decision-making models. The legal model focuses on legal norms and principles as the guiding force in judicial decision-making. Those following the attitudinal model follow their policy and ideological preferences when deciding cases. According to the strategic model, “while justices’ decisions are primarily motivated by policy concerns, institutional constraints exist that limit the ability of the justices to vote in a manner that is compatible with their attitudes and values in every case. ” Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Writing the Opinion n The justice writing the majority opinion must lock in all the available votes. Concurring opinions agree with how the majority opinion decides the case but disagree with at least some of the legal arguments or conclusions reached in this majority opinion. Dissenting opinions not only disagree with these arguments and conclusions but also reject the underlying decision in the case. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw-Hill Education.

The Judiciary Where Do You Stand? Do you think the current Supreme Court is too liberal, just right, or too conservative? a. Too liberal b. Just right c. Too conservative Source: “ 1/3 of Americans Say U. S. Supreme Court Too Conservative, ” www. gallup. com/poll/28861/One. Third-Americans-Say-US-Supreme-Court-Too. Conservative. aspx. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Judges as Policy Makers n n Courts make law—common law—by deciding cases and establishing legal principles that guide future litigants and judges. The lawmaking function of courts ensures that judges have a powerful role as public policy makers, because the decisions they make profoundly affect not only the parties in the case but also society, the economy, and politics. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

From Judicial Review to Judicial Policy Making n n Marbury v. Madison (1803) Plessey v. Ferguson (1896) Brown v. Board of Education of Topeka, Kansas (1954) Because of their policy-making role, judges participate in a larger political discourse that goes far beyond the concerns of individual litigants. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Activism Versus Restraint n n Judicial activism refers to the courts’ willingness to strike down laws made by elected officials as well as to step away from past precedents. Practitioners of judicial restraint believe that the judiciary, as the least democratic branch of government, should not check the power of the democratically elected executive and legislative branches unless their actions clearly violate the Constitution. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Judiciary Where Do You Stand? Do you believe the justices on the U. S. Supreme Court should base their rulings on what they believe the Constitution’s framers originally meant when it was written or on what they believe the Constitution means for the country today? a. Original meaning b. Meaning for today Source: FOX News/Opinion Dynamics Poll, www. pollingreport. com/court 2. htm. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

Checks on the Courts n n n Legislatures and chief executives The public Internal constraints Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.

The Supreme Court Today: The Roberts Court n n n John G. Roberts became chief justice in 2005. Ideological distribution tilts slightly conservative. Anthony Kennedy is often a swing vote. Copyright © 2015 Mc. Graw-Hill Education. All rights reserved. No reproduction or distribution without the prior written consent of Mc. Graw. Hill Education.