Judicial Branch Supreme Court and Lower Federal Courts

History The founding fathers thought least of the judicial branch than the other two. n Appointment of John Marshall as Chief Justice in 1801 changed that. n Marshall envisioned the court as the final judge and authority on the Constitution. n

n Marshall Court responsible for the establishment of the concept of “Judicial Review”. n Judicial review is the power to authoritatively interpret the Constitution by judging the constitutionality of the actions of government. n Established in the case of Marbury v. Madison (1803)-ruled part of the Judiciary Act of 1789 unconstitutional.

Scope of Judicial Power n The American judicial system is based on the “adversary system”. n Adversary system: court of law is a neutral arena in which two parties argue their differences and present their points of view before an impartial arbitrator. n Based on “fight theory”-arguments over law and evidence hopefully arrives at truth and fairness.

n n n Courts only decide “justiciable disputes”. n Those that grow out of actual cases and are capable of settlement by legal methods, judges may not start a case. Courts work on issue of “standing to sue”. n Litigants must have sustained or be in immediate danger of sustaining injury. n “Class action suits”: a small number of people represent a larger group. Interpretive nature of court system allows courts to “make law”.

Types of Law in the American System n n Statutory Law: Law that comes from a lawmaking body (i. e. Congress), treaties, and executive orders. Common Law: Law based on tradition or prevailing custom. Equity Law: A system of law designed to furnish remedies which are not legally recognized under common law. Constitutional Law: Decisions that are interpretations of the Constitution.

n n Admiralty and Maritime Law: Laws applicable to cases concerning shipping and commerce on the high seas and navigable waters of the US. Administrative Law: Laws relating to the authority and procedures of administrative agencies, and the rules and regulations issued by those agencies. Criminal Law: Law that defines crimes against the public order and the punishment for violations. Civil Law: Law that governs relations between individuals and defines their legal rights. Government may be party to civil action.

Restraints on Power n Judges are not free to do whatever they want. n Judicial system is controlled in part by the political system. n Legal profession also puts some restraints on courts. n Rule of “stare decisis” (rule of precedent): Judges are expected to abide by previous decisions of their own and superior courts. n Exception is decisions on constitutional law.

Federal Court Structure n n Three tiered structure. n District Courts. n Courts of Appeals. n A Supreme Court. District Court. n There are from 1 -4 Districts courts in each state, D. C. , and territories (94 total). n Each has from 2 to 28 Judges. n Workhorses of the Federal Court system. n Judges normally sit alone and are appointed for life.

District Judges may appoint help such as law clerks, bailiffs, court reporters, magistrates, etc. n Magistrate Judges: “associate” judges who reduce the work load of District Judges. n Do some jobs of Judges except presiding over criminal trials (setting bail, jury selection, hearing motions, etc). n District courts are trial courts of original jurisdiction. n Grand Jury-Court of indictment (accusation), decides if evidence exists to hold a trial. n Petit Jury-Trial jury. n

n Court of Appeals. Reviews cases from lower District Courts. n There are 12 geographical Court of Appeal districts n

There is a 13 th Court of Appeals for the Federal Circuit, located in Washington, D. C. which has national jurisdiction (patents, copyright, international trade, etc. ). n There are 6 to 28 permanent judges in each circuit (179 in all). n Court of Appeals normally hear cases as a three judge panel. n For very important or controversial cases, all judges in the district may preside (en banc). n

n Supreme Court. n Less than 1% of cases appealed from the Court of Appeals. n Have “original jurisdiction” in cases affecting ambassadors, admiralty cases, and cases between states. n All other cases they have appellate jurisdiction, have power to review decisions of other courts and agencies. n Is the only federal court which may review state court decisions and only when there is a conflict with federal law.

Lawyers and the Federal Courts n The job of prosecution falls upon the Justice Department. n Consists of the Attorney General, Solicitor General, 94 U. S. Attorneys, and 1, 200 Assistant Attorneys. n U. S. Attorneys are appointed by the President and serve 4 year terms. n Usually resign when the opposing party wins the Presidency. n Will attempt to prosecute or plea bargain violations of federal statute.

U. S. Attorneys also represent the U. S. in civil cases. The Solicitor General will represent the U. S. before the Supreme Court. n Court will most likely hear a case upon the recommendation of the Solicitor General. Defense Attorneys. n Indigent defendants are assigned a lawyer from the public defender system. n n n

Politics of Judicial Selection n Judges and U. S. attorneys are appointed by the President and confirmed by the Senate. n Senatorial courtesy: President consults with the Senators from the state in which the appointee will work (except Appeals Court or Supreme Court). n Judicial interest groups (liberal and conservative) attempt to influence the confirmation process. n The American Bar Association (ABA) also rates candidates as “qualified” or “not qualified”.

n Party, race, gender and political ideology are important factors in selection. n Presidents choose from party 90% of time. n More recently, Presidents have attempted to make court system more “representative” in respect to race and gender. n Senate confirmation affects Presidential choice. n If opposing party controls Senate, President must “temper” his appointments (i. e. less liberal, less conservative, etc. ).

n n Role of Judicial Philosophy. n Does the candidate believe in “judicial restraint” or “judicial activism”. n Judicial Restraint: belief that judges should interpret the Constitution to reflect the framers intent. n Judicial Activism: belief that judges should adapt the Constitution to reflect current attitudes and philosophies. Role of Presidential tenure. n With lifetime terms, judges sometimes resign or stay on depending on the President's term. n May stay on to prevent a possible appointment. n May resign to allow an appointment.

Supreme Court Operation n The Court’s term opens on the 1 st Monday in October and runs through the end of June. n Oct. through April they listen to oral arguments two weeks a month. n After 2 weeks adjournment to consider the cases, they return to write opinions. n Takes at least 6 justices to make a decision. n Majority vote decides case. n If a tie, the lower court ruling prevails.

n n Powers of the Chief Justice. n Title does not imply more important. n Chief Justice is responsible for controlling conferencing, assigning the writing of opinions, usually writes the most important of opinions. Law clerks. n Each justice entitled to 4 clerks. n Screen writs of certiorari and help draft opinions.

n How cases are chosen. n 8, 000 cases are appealed to the Supreme Court annually. n Usually hear only 100. n Come before the court by a formal “writ of certiorari”-formal writ to bring a case before the court. n The Supreme Court will review a case only if the claim has broad public significance. n “Rule of four”-if 4 justices are interested in a particular writ of certiorari, the case will be reviewed.

n n Amicus Curiae (friend of the court). n Briefs which justices receive before case which present legal arguments, background and precedent. n Guarantees that the Dept. of Justice is represented if the constitutionality of an act of Congress or action of the executive is questioned. Oral Arguments. n Lawyers are limited to 30 minutes for arguments. n Justices may interrupt, talk among themselves, do research, demand answers to questions, etc.

n n The Conference. n Secret meetings where justices review case and cast vote. n Opinions. n When the Chief Justice is with the majority, they will decide who will write the “opinion of the court”. n When in the minority, the senior justice among the majority will decide. n Justices are free to write dissenting opinions. Post-decision. n Decision is “remanded” back to lower courts to implement.