American Government Chapter 13

Amicus Curiae Brief

A brief (a document containing a legal argument supporting a desired outcome in a particular case) filed by a third party, or amicus curiae (Latin for "friend of the court"), who is not directly involved in the litigation but who has an interest in the outcome of the case.

Justiciable Controversy

A controversy that is real and substantial, as opposed to hypothetical or academic.

Majority opionion

A court opinion reflecting the views of the majority of judges.

Senatorial Courtesy

In federal district court judgeship nominations, a tradition allowing a senator to veto a judicial appointment in his or her state.

Discuss the characteristics, political leanings and cases involved with Chief Justice Rehnquist and Chief Justice Roberts.

Rehnquist Court -William H. Rehnquist became the sixteenth chief justice of the Supreme Court in 1986 and was a strong anchor for the Court's conservative wing until his death in 2005 -the Court moved to the right, however, decisions were not always in line with conservative ideology. The Court was divided in many cases, making it difficult to predict how the Court would rule on an issue. In the 1995 case U.S. v. Lopez the Court determined that Congress had overreached its powers under the commerce clause when congress tried to ban guns in school zones. According to the Court the possession of guns did not mean commerce was involved. Yet in 2005, in Gonzales v. Raich, the court determined Congress had the power to ban marijuana even when a state law allowed it's usage and growing and the growing and use of the drug were strictly local in nature. These two rulings supported ideas that are generally considered conservative even though the same reasoning is used to come to two completely different results. The Roberts Court -the first term of the Roberts Court in June 30, 2006 indicated a rightward drift. In Hudson v. Michigan, chief justice Robers wrote the majority opinion in the 5 to 4 decision that it was not necessary to suppress evidence if the police did not knock and announce their presence before forcibly entering a home. The ruling removed the protection of the "knock and announce" rules for criminal suspects. However is several other close 5 to 4 decisions Justice Kennedy (the swing vote) led to liberal rulings. The second term for the Roberts Court (2006-2007) led to the Court shifting further to the right ideologically. Decisions of the Second term -Gonzales v. Carhart. The court upheld a 2003 law banning partial birth abortions. -Ledbetter v. Goodyear Tire & Rubber Co.. The court held that employers are protected from lawsuits over racial or gender pay discrimination if the claims are based don decisions made by the employer more than 180 days before the claims are filed. Many felt argued this verdict would make pay discrimination suits almost impossible to win. The third term (2007-2008) the justices continued to chart a conservative course -However they drew back from the pro-employer stance taken previously -in two cases, the Court held that workers who complain about racial or age-based bias may sue for damages if they face retaliation from employers (CBOCS West, Inc. v. Humphries). The court decided three other discrimination cases in favor of the employees. -the most significant case of the third term was Columbia v. Heller where the District of Columbia's ban on handguns was overturned. The Court established the right of individuals to won guns for private use, not only as a member of militias. The Court held up Kentucky's use of lethal injection in Baze and Bowling v. Rees.

precedent

a court rule bearing on subsequent legal decisions in similar cases. Judges rely on precedents in deciding cases.

What is the "nuclear option"?

a revision of senate rules that would disallow filibusters against judicial nominees

Strict construction

A judicial philosophy that looks to the "letter of the law" when interpreting the Constitution or a particular statute.

Broad Construction

A judicial philosophy that looks to the context and purpose of law when making an interpretation.

Class-Action Suit

A lawsuit filed by an individual seeking damages for "all persons similarly situated." Think those botched hip replacement surgery ads on tv.

Appellate Court

A court having jurisdiction to review cases and issues that were originally tried in lower courts.

Unanimous Opinion

A court opinion or determination on which all judges agree.

Trial Court

The court in which most cases begin.

Compare civil contempt to criminal contempt.

civil contempt- failing to comply with a court's order for the benefit of another party to the proceeding. -can be taken into custody, fined, or both, until that party complies with the court's order. Criminal contempt(obstructing the administration of justice or bringing the court into disrespect) -can be taken into custody and fined but cannot avoid punishment by complying with the previous order

Reverse

To annul, or make void, a court ruling on account of some error or irregularity.

Affirm

To declare that a court ruling is valid and must stand.

What are the opposing arguments in regard to judicial review?

-Some claim that the power of judicial review givers unelected judges and justices on federal court benches too much influence over national policy. -some say judicial review is built in as part of checks and balances with the courts being able to check the powers of the legislature

What is the role of the chief justice?

-he or she is in essence the chief executive officer of a large bureaucracy that includes more than one thousand judges with lifetime tenure, hundreds of magistrates and bankruptcy judges with limited tenure, and a staff of about thirty thousand -the chief justice is also the chair of the Judicial Conference of the United States, a policy making body that sets priorities for the federal judiciary. That position means that the chief justice indirectly oversees the $6 billion budget of this group. -the chief justice appoints the director of the Administrative Office of the United States Courts. The chief justice and this director select judges who sit on judicial committees that examine international judicial relations, technology, and a variety of other topics.

What types of cases does the Supreme Court hear? This should include the facts that are involved and the role that the solicitor general may play.

-the Court's appellate jurisdiction is almost entirely discretionary -freedom of speech, the right to bear arms, campaign finance, capital punishment, the rights of criminal suspects, affirmative action programs, religious freedom, abortion, property rights, sexual harassment, porn, states' rights, and many other matters with significant consequences for the nation Factors that influence the court to take a case -if a legal question has been decided differently by various lower courts, resolution may be needed form the highest court -if a lower court's ruling conflicts with a higher court's ruling -The Court considers if the decision has impact beyond the parties involved -The solicitor general can ask the Court to take a case. The solicitor general is a high ranking presidential appointee within the justice department. He promotes presidential policy within the federal court system. He or she decides what cases the government should ask the Supreme Court to review and what position the government should take in cases before the Court.

Rule of Four

A United States Supreme Court procedure by which four justices must vote to grant a petition for review if a case is to come before the full court.

Explain the court's procedures.

1. If the Court decides to grant a petition for review, it will issue a writ of certiorari. -the writ orders a lower court to send the Supreme Court a record of the case for review. The Court will not issue a writ unless at least four justices approve it. 2. Once the Supreme Court grants certiorari in a particular case, the justices do extensive research on the legal issues and facts involved with the case. Each justice is entitled to four law clerks, who undertake preliminary drafting and research necessary for the justice to form an opinion. 3.the court normally does not hear evidence, as is true with all appeals courts. The Court's consideration of a case is based on the abstracts, the record and the briefs. The attorneys are permitted to present oral arguments. The lawyers are questioned at any time during the oral argument with all statements and the justices' questions being recorded. 4.The justices meet to discuss and vote on cases in conferences haled throughout the term. In these conferences, in addition to deciding cases already before the Supreme Court, the justices determine which new petitions for certiorari to grant. These conferences take place in private. 5.The Court reaches an opinion which is eventually made public. Sometimes the decision of the lower court is upheld or affirmed. Sometimes the decision of the lower court will be reversed or the case will be remanded and sent back to the lower court to be retried. When in the majority the Chief justice decides who writes the opinion. If he is in the minority, the senior justice on the majority side determines who will write the opinion.

Judicial Restraint

A doctrine holding that the courts should defer to the decisions made by the elected representatives of the people in the legislative and executive branches.

Judicial Activism

A doctrine holding that the federal judiciary should make an active role by using its powers to check the activities of governmental bodies when those bodies exceed their authority.

Discuss how senatorial courtesy has changed under various political leaders.

A practice used in the Senate, called senatorial courtesy, is a constraint on the president's freedom to appoint federal district judges. Senatorial courtesy allows a senator of the president's political party to veto a judicial appointment in his or her own state. During much of American history, senators from the "opposition" party (the party to which the president did not belong) also enjoyed the right of senatorial courtesy, although their veto power varied over time. In 2000, Orrin Hatch, Republican chair of the Senate Judiciary Committee, announced that the opposition party (at that point, the Democrats) would no longer be allowed to invoke senatorial courtesy. The implementation of the new policy was delayed when Republican senator James Jeffords of Vermont left the Republican Party. Jefford's departure turned control of the Senate over to the Democrats. After the 2002 elections, however, when the Republicans regained control of the Senate, they put the new policy into effect. When the Democrats took over the Senate following the elections of 2006, Senator Patrick J. Leahy (D., Vt.), chairman of the Judiciary Committee, let it be known that the old bipartisan system of senatorial courtesy would return. Of course, the Republicans, who were now in the minority, were unlikely to object to nominations submitted by Republican president George W. Bush, and the old practices did not become truly effective until Democratic president Barack Obama took office.

Federal Question

A question that has to do with the U.S. Constitution, acts of Congress, or treaties. A federal question provides a basis for federal jurisdiction.

Dissenting Opinion

A separate opinion in which a judge dissents from (disagrees with) the conclusion reached by the majority on the court and expounds his or her own views about the case.

Concurring opinion

A separate opinion prepared by a judge who supports the decision of the majority of the court but who wants to make or clarify a particular point or to voice disapproval of the grounds on which the decision was made.

Describe the Sources of American law including:

A. Constitutions -The constitution of the federal government and the states set forth the general organization, powers and limits of government. The U.S. Constitution is the Supreme law of the land as the state constitutions are the supreme law within the boundaries of a given state. When a law is declared unconstitutional it cannot be enforced. B. Statutes and Administrative Regulations -although common law provides the basis for both our civil and criminal legal systems, statutes (laws enacted by legislatures) have become increasingly important in defining the rights and obligations of individuals. -Federal statutes may relate to any subject that is a concern of the federal government and may apply from ares ranging from hazardous waste to federal taxation. -State statutes include criminal codes, commercial laws, and laws covering a wide variety of matters -cities, counties, and other local political bodies pass statutes but in their case they are called ordinances. -Ordinances can concern issues such as zoning and public safety C. Case Law -case law includes judicial interpretations of common law principles and doctrines, as well as interpretations of the types of law just mentioned-constitutional provisions, statutes and administrative agency regulations. -It is up to the courts to decide what a constitutional provision or a statutory phrase means. In doing so, the courts establish law.

Explain the steps involved in the appointment of federal judges.

All federal judges are appointed. Article II, section 2 of the Constitution states that the president appoints the justices of the Supreme Court with the advice and consent of the Senate. Congress has used the same procedure for staffing other federal courts. No matter what level, the president and the Senate jointly appoint to every vacant judicial position. Judicial Appointments -candidates for federal judgeships are suggested to the president by the Department of Justice, senators, other judges, the candidates themselves, and lawyers' associations and other interest groups. In selecting a candidate, the president considers competence such as the political philosophy, ethnicity, and gender of the candidate. -the president makes the actual nomination, transmitting the mane to the Senate. The Senate either confirms or rejects the nomination. To reach a conclusion, the Senate Judiciary Committee invites testimony, both written and oral, at various hearings.

How does partisanship play into the Senate's confirmation of federal judges.

Almost 20 percent of presidential judiciary nominations are rejected or not acted upon by the senate. It depends on what party has control of the senate. The opposing party controlling the Senate can merely block appointments for political reasons.

Writ of Certiorari

An order issued by a higher court to a lower court to send up the record of a case for the review.

Discuss the judicial requirements of jurisdiction and standing to sue.

Because the Constitution established a federal government with limited powers, federal jurisdiction is also limited. Article III, section 1, of the U.S. Constitution limits the jurisdiction of the federal courts to cases that involve either a federal question or diversity of citizenship. A federal question arises when a case is based, at least in part on the U.S. Constitution, a treaty, or to federal law. A person who claims that her or his rights under the Constitution, such as the right to free speech, have been violated could bring a case to a federal court. Diversity of citizenship exists when the parties to a lawsuit are from different states or (more rarely) when the suit involves a U.S. citizen and a government or citizen of a foreign country. The amount in controversy must be at least $75000 before a federal court can take jurisdiction in a diversity case however. Standing to sue -another basic judicial requirement is standing to sue, or a sufficient "stake" in a matter to justify bringing suit. The party bringing the lawsuit must have suffered a harm, or have been threatened by a harm, as a result of the action that led to the dispute in question. Standing to sue also requires that the controversy at issue be a justiciable controversy. A justiciable controversy is a controversy that is real and substantial, as opposed to hypothetical or academic. In other words, a court will not give advisory opinions on hypothetical questions.

General Jurisdiction

Exists when a court's authority to hear cases is not significantly restricted. A court of general jurisdiction normally can hear a broad range of cases.

Limited Jurisdiction

Exists when a court's authority to hear cases is restricted to certain types of claims, such as tax claims or bankruptcy petitions.

How did common law evolve?

In 1066, the Normans conquered England, and William the Conqueror and his successors began the process of unifying the country under one rule. One of the ways in which they did this was to establish the king's courts. Before the conquest, disputes had been settled according to the local custom. The king's courts sought to establish a common, or uniform, set of rules for the whole country. As the number of courts and cases increased, portions of the most important decisions of each year were gathered together in Year Books. Judges settling disputes similar to ones that had been decided before used the Year Books as the basis for their decisions. If a case was unique, judges had to create new laws, but they based their decisions on the general principles suggested by earlier cases. The body of judge-made law that developed under this system is still used today and known as common law.

Explain the various "secret courts" (include laws passed to justify these courts).

In order to combat terrorism, Congress has created special courts which meet in secret. The FISA Court -the first secret court created in 1978. -Created by the Foreign Intelligence Surveillance Act -this court hears requests for warrants for the surveillance of suspected spies. -Officials can request warrants without having to reveal the suspect or to the public the information used to justify the warrant. -the seven judges of the FISA court meet in secret, with no public opinions or orders. There is no public access to the court's proceedings or records. Alien "Removal Courts". -created in the wake of the Oklahoma City bombing in 1995 with Congress passing the Anti-Terrorism and Effective Death Penalty Act of 1996 -the judges in this court rule on whether there is probable cause for deportation of a "alien terrorist". If so, a public deportation proceeding is held in a U.S. district court. The prosecution does not need to follow the procedures that normally apply in criminal cases. In addition, the defendant cannot see the evidence that the prosecution used to secure the hearing. Enemy Combatants In the wake of 9/11 the Bush Administration held many terrorists and suspected terrorists and held them at the U.S. naval base at Guantanamo Bay. If you remember from that policy discussion on torture in the beginning of government, if the suspects are declared enemy combatants they can be denied legal rights.

Common Law

Judge-made law that originated in England from decisions shaped according to prevailing custom. Decisions were applied to similar situations and gradually became common to the nation.

Case Law

Judicial interpretations of common law principles and doctrines, as well as interpretations of constitutional law, statutory law, and administrative law.

What is the civil law system

Nations who do not share the common law tradition typically rely on a statutory code alone, in which is called the civil law system. Judges under the civil law system are not bound by precedent in the way that judges are under the common law system.

How does partisanship play into judicial appointments?

President's usually appoint judges or justices who belong to their own party. Presidents see their federal judiciary appointments as the one sure way to institutionalize their political views long after they have left office as these are lifetime positions.

Diversity of Citizenship

The condition that exists when the parties to a lawsuit are citizens of different states or when the parties are citizens of a U.S. state and citizens or the government of a foreign country. Diversity of citizenship can provide a basis for federal jurisdiction.

Oral Arguments

The arguments presented in person by attorneys to an appellate court. Each attorney presents reasons to the court why the court should rule in her or his client's favor.

Jurisdiction

The authority of a court to decide certain cases. Not all courts have the authority to decide all cases. Where a case arises and what its subject matter is are two jurisdictional issues.

Opinion

The statement of the judge or a court of the decision reached in a case. The opinion sets forth the applicable law and details the reasoning on which the ruling was based.

Judicial Implementation

The way in which court decisions are translated into action.

Litigate

To engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit.

Remand

To send a case back to the court that originally heard it.

State Decicsis

To stand on decided cases; the judicial policy of following precedents established by past decisions.

Identify the types of federal courts and the types of cases each hears.

U.S. district courts -the district courts are trial courts. A trial court handles trials where testimony is taken. The U.S. district courts are courts of general jurisdiction, meaning they can hear cases on a broad range of issues. U.S. court of appeals -when a party is dissatisfied with the decision of a district court they can appeal to the appropriate U.S. court of appeals, or federal appellate court. An appellate court has the jurisdiction to review cases and issues that were originally tried in lower courts. There are 13 U.S. courts of appeals-also referred to as the U.S. circuit courts of appeals. Twelve of these courts, including the U.S. Court of appeals for the district of Columbia, hear appeals from the federal district courts located within their respective judicial circuits. The Court of Appeals for the thirteenth circuit, called the federal circuit, has national appellate jurisdiction over certain types of cases involving patent law and those in which the U.S. government is a defendant. -the appellate courts due not conduct another trial. A panel of three or more judges review s the record of the case on appeal, which includes transcript, and determines if there was an error. Usually, appellate courts do not look at questions of fact but at questions of law. An appellate court will challenge a trial court's finding of fact only when the finding is clearly contrary to the evidence presented at the trial or when there is no evidence to support the finding. U.S. Supreme Court -a party can petition the U.S. Supreme Court to review the decision of an appellate court. The chance the Supreme Court will grant the petition is slim. -The highest level of the three-tiered model of the federal court system in the United States. According to the language of Article III of the Constitution, all other federal courts are considered inferior. -Congress has the power to create other federal courts if necessary. These can include the district courts, the appeals courts, and the federal courts of limited jurisdiction. -although the Supreme Court can exercise original jurisdiction (and act as a trial court) in certain cases, such as those affecting foreign diplomats and those in which a state is a party, most of its work is as an appellate court. -the Court can hear appeals from the federal appellate courts and the supreme courts of the states. However the Supreme Court only has jurisdiction to review a state supreme court decision only if a federal question is involved.

Political Question

an issue that a court believes should be decided by the executive or legislative branch- or these two branches acting together.

Discuss the checks on the court's power (include specific examples).

executive checks -the executive branch checks the court because as the executors of the law they decide what they enforce. Andrew Jackson said "now let him enforce it" in reference to a decision made by John Marshall. The executive branch could decide not to enforce a decision. However, a president who would do so will probably would lose public support. State governments can refuse to but then the federal government steps in. When Arkansas did not want to integrate public schools, the national guard had to be sent in. Legislative checks -the legislature appropriates funding for laws that coincide with a supreme court decision -Constitutional amendments can make a supreme court ruling null and void -Congress can also right new laws to support a court decision or to go against it. Public opinion -the justices are ultimately affected by social trends -the public can influence state and local governments to not enforce a particular decision -the public can simply ignore the laws because the court doesn't enforce them and small things can not be enforced on a national scale. There are some rural southern schools which still have school sponsored prayers.

What ideas are linked with liberal activism? Conservative activism?

liberal activism -linked with judicial activism (see definition) conservative activism -linked with judicial restraint (see definition)