Judicial Process and Behavior Midterm

Power of Trial Judges

"unsung" heroes of the federal court system; establish the facts of the case

Retention elections

Election where a judge is retained or not retained after serving a specific term after being appointed; high retention rates in general; high affirmation rates with periodic drops and fluctuations which are a direct result of political forces and special interest groups

Judiciary Act of 1925

Established power of certiorari; sought to reduce the workload of the U.S. Supreme Court

Judiciary Act of 1789

Established relationship between the inferior and superior courts; through the act, Congress established the structure and jurisdiction of the federal court system; 6 Supreme Court justices at first

Judicial Review--definition

Judicial Review is the power of the court to review acts of the legislature, acts of the executive, and actions of the state governments for constitutionality and to declare those acts judged to be unconstitutional null and void

Senatorial Courtesy

Senators from the state that the nominee is from must give their informal approval for the candidate (senatorial courtesy); chair of committee must have blue slips from these senators in order to proceed to the hearing

Anticipatory Courts

Courts anticipate what problems need to be fixed

Marbury v. Madison--Background

(1803) -Constitution is silent about idea of JR -Framers were vague about power of JR; no explicit definition -But framers understood JR as give--Hamilton in Federalist Paper #78 makes it clear that all courts will have this power -U.S. Constitution went into effect in 1789 and Marbury v. Madison was the first case presented about judicial review; first instance where Supreme Court implemented JR

Madison v. Marbury--Facts

(1803) -William Marbury is suing James Madison, the secretary of State under President Thomas Jefferson -Jefferson had recently succeeded by John Adams as President (1801)--federalists were out and Jeffersonians were in the executive and congress -Outgoing Adams administration decided to pack the courts through the Judges Act of 1801 which created new system of federal courts, expanded courts and allowed Adams to nominate new federal judges to be approved by the Senate -John Marshall was nominated as chief justice by Adams but was at the time, the secretary of state under Adams and one of his responsibilities was delivering commissions -Marbury was also nominated and confirmed and just awaited the commission (nomination and confirmation) but his commission never arrived -James Madison then had undelivered commissions and Jefferson said to ignore them but Marbury said he had the right to his commission -Marbury sues Madison for undelivered commission -Employed Writ of Mandamus to request his commission

Baker v. Carr

(1962) Baker v. Carr was a landmark Supreme Court case that decided that redistricting (changing voting districts based on the census) is not strictly a "political question" and can thus be handled by the Supreme Court. Before this case, the Supreme Court refused to hear cases having to do with reapportionment issues because reapportionment was deemed a political issue. In this case, the Court argued that the Equal Protection clause of the 14th Amendment gave the Court the power to review this issue. From this day on, reapportionment was considered justiciable.

Provine "Deciding what to Decide"

(1981) -Expanded Tanenhaus' original cue theory -Added a few more cues by examining Burton's papers 1) Justices roll conception 2) Judicial attitudes

Perry "Deciding to Decide"

(1991) -Relied on interviews with judges and clerks -Circuit conflicts are very deciding in whether certiorari will be granted -Perry added the following cues: 1) Intercircuit conflict 2) Importance of the issue 3) Egregiousness; a blatant violation of justice

Nature of the parties under Jurisdiction

-Ambassadors -U.S. government is a party -Controversy b/w two or more states -State v. Citizen or another state -B/w citizens of different states

Behuniak Study of Amicus Briefs

-Amicus Briefs, Friend of the Courts, briefs are another strategy employed by interest groups -Amicus briefs offer information/suggestions as to the outcome of the case by parties and groups not directly involved in the litigation -Abortion cases have drawn a lot of amicus briefs--Webster v. Reproductive Health Services (1989)--335 briefs filed by interest groups on either side -Important question is how successful are Amicus briefs: their power is limited it determining the outcome of the case but they are effective in providing judges with information and long term consequences of a particular issue

Cook "Justice Brennan and the Institutionalization of Dissent Assignment"

-Brennan thought that Dissent Assignment should follow a procedure -Dissent is important for the future and to hold the majority opinion honest

Robert Dahl and the Regime-Maintenance Theory

-If courts rendered a decision in trend setting or trend resisting categories, within four years, the same decisions would move towards trend following -Decisions would eventually fall in line with the trend of the majority political party -Myth of the defender of minority rights is not accurate -Most decisions fall into the trend following category eventually; court decisions falls into sync with the current administration

Limits on Judicial Review

-Judicial Review is a huge power--nullifying acts of congress and the executive -There are checks and balances

Judicial Review--political nature

-Judicial review thrusts courts into political disputes and makes courts inherently political

After Judiciary Act of 1925

-Justices have lifetime tenure -no reduced salaries -can only be removed via impeachment

Criteria for judges

-Legal competence -Ideological preferences and political preferences -attributes: gender, race, ethnicity, age, etc. -pursuit of political support

Wasby "The Function and Importance of Appellate Oral Argument"

-Looked at how important oral argument is -Determined that it does indeed have a purpose -what do oral arguments provide that briefs don't? 1) The interactions during oral arguments between the parties and the judges is important 2) To focus the argument on a particular point 3) To reiterate most major points in the briefs 4) To clarify facts 5) To counter opposition argument; rebuttal 6) To appeal to justices' right and fairness 7) The legitimize the process and provide transparency and openness 8) To urge judges to re-read parts of the briefs 9) To prepare justices for conference 10) To force justices to communicate with each other *Oral argument allows both sides to be heard

Lowering the Barriers to Access

-Lowering fees of attorneys/litigation processes -Contingency fees, attorneys get share of wins but nothing if the case is lost -Class action lawsuit -allow non-lawyers a right of audience -interest group participation

Max Weber--Principles of Bureaucracy

-Max Weber was considered the father of bureaucracy -Established principles of bureaucracy 1) Unity of Command 2) Control 3) Functional groupings of personnel Courts are bureaucracies

Strategic Considerations in assigning majority opinions

-Needs to hold majority together -Unwise to give opinion to most extreme members or the members in the middle will drop off -e.g. the Roberts court has often assigned the majority opinion to Samuel Alito who falls in the middle rather than Clarence Thomas or Antonin Scalia

Cue Theory

-One theory in how judges select cases for review; cues that capture the attention of the judges -Put forth by Joseph Tanenhaus -Came up with three cues 1) Presence of the U.S. as a petitioner 2) Presence of issue of civil rights 3) Disagreement among courts below Tanenhaus had no way of testing this empirically because there was no data on how judges made the decisions to grant review Cues confirmed when Harold Burton released his notes regarding his grants of certiorari.

Models of state judicial selection system

-Partisan Ballot -Non-partisan Ballot (these approached value political accountability) -Gouvernatorial appointment similar to federal system (values judicial independence) -Merit system (seeks to balance political accountability and judicial independence)

Mapping out the process of judicial decision making

-Request for review -Clerk docket -Which cases to hear -First judicial conference -Oral argument -Second judicial conference

Writ of Mandamus

-Requires governments officials to fulfill their official duties -Must be requested directly from the Supreme Court as established by the Judiciary Act of 1789 -Key in Marbury v. Madison; Marbury used this to try to force Madison to hand over his commission

The Roles of the Courts (4)

-Resolving disputes (civil and criminal) -Make policy and engage in social engineering (apply novel solutions) -Monitoring government action -Social control (criminal disputes)

Judiciary Act of 1789

-Section 13 established the Writ of Mandamus that must be requested from the Supreme Court (unusual that cases rarely originate in the Supreme Court)

State Court Structure

-State courts are established by state constitutions -State courts are independent from the national court system -Each state has a varying system but there is a general "prototype"

Judicial Selection in the States--movement

-States wanted to increase political accountability; judicial selection via elections -Move towards merit-based Judicial Selection; judicial nominating commissions that would create a list of potential candidates that have been vetted; merit played an important role; governor would select from the list -Judge then serves for a specific term (i.e. seven years) and is then subject to a retention election; nonpartisan

Harold Burton

-Supreme Court Justice from 1945-1957 -Released his notes regarding his certiorari decisions -Made it possible to test the cue theory and determined that Tanenhaus was correct in his cues

Duel system of the U.S. Court System

-The U.S. has a duel system of state and federal courts -51 independent court systems (1 federal and 50 state courts) -The state came first with the Declaration of Independence -The duel system is based on unique history and federalism

The Origins of Judicial Review

-Thought that there needed to be anther higher/natural law check -There needs to be another power to review the acts of the legislature and the executive -Born during the revolutionary period and began to emerge in state legislatures and constitutions -early state courts began to define the idea of JR

Three conceptual roles of the judiciary

-Trend setting -Trend following -Trend resisting *even when courts are trend setting or trend resisting, they tend to converge to trend following within four years

Logic of the Triad

-Two parties are in dispute and decide that it is useful to take the case to a judge -Two parties are looking for a resolution, a neutral arbiter -The two parties and the judge equal the triad -The idea of the court is based on the triad

Nature of the Judiciary

-Undemocratic features: not elected, insulated from politics -Myth of court as a bulwark against temporary majorities as defender of minority rights

Mapping out the process of judicial decision-making--Oral Argument

-Usually one hour in duration, thirty minutes given to each side. Some exception for example in Obamacare and Bush v. Gore

Subject Matter falling under Jurisdiction

-in law and equity (common law) -under the Constitution (meaning of provisions) -laws of the U.S. (statutes) -Treaties -Admiralty and Maritime

Prototype of Courts--the old view

1) Independent judge (unbiased, not involved in dispute) 2) Applying pre-existing norms 3) Adversarial proceedings to 4) Achieve a dichotomous decision--one party is right and one party is wrong

Mapping out the process of judicial decision-making--Request for Review

1) Most common pathway is through certiorari (since 1925) 2) Also through appeal (greatly curtailed through cert.); mainly voting rights or election issues 3) Original jurisdiction (as defined by Article III), disputes between states, ambassadors, foreign ministers, etc. (very rare, 3-4 cases per year) 4) Certification, a court below is struggling to determine a case (very very rare)

Senate Procedure

1. Courtesy Meetings 2. Senate Judiciary Committee will conduct hearings followed by a vote of the committee members 3. Senate floor for a majority vote 4. Nominee confirmed through 2/3 majority

Eras of judicial selection

1st era: 1776-1840: political institutions selected the judiciary; governor and state legislature nominate and confirm the judges; 1789, the same thing was established in federal courts (president nominates and Senate confirms) 2nd era: 1840-1890: judicial elections in states (Jacksonian democracy) 3rd era: 1890-1940: non-partisan judicial selection; judges will run on their merit but no party label would be given on the ballot (Progressive era) 4th era: 1940-present: merit plan judicial selection; the governor is presented with a list of candidates decided by a judicial selection commission (politicians, ABA members, lawyers), the judge is selected and serves for seven years and then is subject to a retention election (should this judge stay on); no political affiliation is clear

Bush v. Gore

5-4, four liberal justices for Gore and 5 conservative justices for Bush--policy views influence judicial decision-making; novel solution was implemented in this case and the decision split among party lines

Legal Formalism

A theory that legal rules stand separate from political and social institutions; that judges merely apply rules to the facts of the case and are not creatively applying the law; judges are mechanical in how they act; judges merely declare the law, they do not make it; practice followed before Oliver Wendell Holmes and legal realism; protected judges from the social and public pressure

Origins of the Federal Judiciary System

A. U.S. Constitution, Article III section 1: did not establish full blown federal court system but rather "one supreme court and inferior courts and congress" B. Judiciary Act of 1789: established lower courts, determined relationship between superior and inferior courts C. Judiciary Act of 1891: established circuit court of appeals D. Judiciary Act of 1925:established power of certiorari

Actions of states

Acts of state legislatures, acts of state executives

Mapping out the process of judicial decision-making--Which cases to hear

After the official clerk has docketed the cases, the judges need to decide which cases to hear through the cert. processes. Each party in the lower courts have the power to appeal, but the case will only be heard in the Supreme Court if 4 judges decide to hear the case and grant a writ of certiorari. -Four justices must place a case on the discuss list in order for the case to be considered -Chief justice creates a discuss list, a short list of cases that the justices are interested in hearing

Benjamin Cardozo and The Nature of the Judicial Process

Benjamin Cardozo asked the question "how do judges decide?"; theorized that it was not just the written law, but also its history, utility, sense of right, custom, social interests, etc.--it is not JUST the law

Original Jurisdiction of U.S. Supreme Court

Cases that can be directly discussed in the Supreme Court; don't have to start in the lower courts As defined by Article III of the Constitution: -foreign ministers and counselors -disputes between states or state v. state

How do justices choose from 8500 cases?

Clerks help the justices. Each justice has four clerks that help them with the selection process and comb through the many cases on the docket. The justices may ask their clerks to look for particular cases, involving a particular issue or question to provide some guidance. Which cases are "cert-worthy?"

Roll off Voting

Could help explain high retention rates; judge question is often last on the ballot and is thus ignored my voters (30-40% leave this question blank)

Active Courts

Court actively identify problems, don't wait for them

Reactive courts

Courts must wait for cases to be brought to them

Passive courts

Courts must wait for cases to come to them

Judiciary Act of 1891

Established the circuit court of appeals system; have jurisdiction over most lower court appeals; current system has 13 court of appeals. -circuit courts became U.S. Court of Appeals -Supreme Court justices no longer serve on this court -court of appeals were created geographically -judges were appointed to serve specifically on this court and supreme court justices no longer served here

Exceptions Clause

Exceptions clause is a clause in the U.S. Constitution, Article III section 2, that grants Congress the power to make exceptions to the constitutionally defined appellate jurisdiction of the Supreme Court

Acts of Executive

Executive orders, rules and regulations within the executive branch

Ripeness and Mootness

Fall under the Case and Controversy Doctrine; have to do with the timing of a case and when a case can be settles

Court Term

First Monday in October to end of June

Mootness

Further legal proceedings cannot affect the case or the case has somehow moved out of the power of the courts; i.e. the law under question has been changed or settlement has occurred; "too late" to be heard

Habeaus Corpus

Habeau Corpus is writ of court order which allows a held individual to appear in court to determine the legality of the prisoner's confinement. Habeas corpus petitions are commonly used when a prisoner claims illegal confinement, such as holding a person without charges, when due process obviously has been denied, bail is excessive, parole has been granted, an accused has been improperly surrendered by the bail bondsman or probation has been unjustly denied. A petition for habeas corpus may be based on an error of fact or error of law. District courts have power of Habeaus Corpus

Standing

Has to do with "who" can sue? Rather than when and where (ripeness and mootness) Plaintiff must prove three things: 1) injury in fact--invasion of legally protected interest, the injury is concrete, particularized, actual or imminent 2) Cause/Connection between the injury and the conduct complained of; clear cause and effect, clear responsible party 3) Likely that injury would be redressed by favorable decision; remedy must be possible

Strong form JR

If it is unconstitutional it is null and void

Weak form JR

If it is unconstitutional, the judge can suggest that the law be adjusted and changed through a declaration of incompatibility

Centralized judicial review vs. US system

In some governments, there is a centralized court that handles questions of constitutionality; judicial review is centralized In the U.S. this power is diffused across all courts and the power to declare acts unlawful rests in all judges

Federal Method of Judicial Appointment

In the federal system, judicial selection involves an appointive measure by the president. The president nominates a candidate and the candidate is confirmed by the Senate. This is laid out by Article II section II of the Constitution. The rules laid out in this article are relatively vague and open to interpretation. Informal norms and processes have developed to guide the process of judicial nominations. Party and ideology is a clear factor in selecting judges.

Main question in Marbury v. Madison

Is section 13 of the Judiciary Act of 1789 constitutional? No, so Marbury doesn't receive his commission because he cannot request a Writ of Mandamus from the Supreme Court

Theory of Convergence

It doesn't really matter how the judge makes it to the bench; generally the quality has improved

What does the lack of unanimity in the Supreme Court show?

It shows that each judge applies a different "mix" of extralegal factors; it is an argument for legal realism--other factors besides the strict law must play a role

Judicial Independence vs. Political Accountability

Judicial independence is the idea that judges are separate from political institutions; political accountability means that judges are accountable to their public and the public interests. Independence from political institutions makes political accountability weaker. Federal courts are more focused on judicial independence and state courts are more focused on political accountability. One way to understand the two focuses, is to examine how judges are selected for their positions.

Legal Realism

Legal realism was an attach on the old way of thinking; do judges make or merely declare the law?; a theory that all law derives from social interests and public policy; a judge considers not only abstract rules but also social interests and public policy when making his decision

Justification/Explanation for why a law that violates the Constitution is null and void

Marshall describes and establishes the theory of of a written constitution and establishes the hierarchy of legal authority -U.S. Constitution creates boundaries and all statutes and regulations are legal to judicial review to determine their compatibility with the constitution

Mapping out the process of judicial decision-making--Second Judicial Conference

Meeting to discuss the cases presented in the oral argument to come up with a tentative vote. The assignment of the opinion writing also takes place during this conference. Justices will begin to draft their opinions and will attempt to win over other justices to support their side. The final decision is announced from the bench and released to the public.

Movement through the federal court system

Most cases start in the U.S. District Courts of which there are 94, these are also know as the trial court. Parties have a right of appeal to the U.S. Court of Appeals, of which there are 11 circuits plus the D.C. circuit, here judges sit on three judge panels unless it is en banc. From here parties still have a right to appeal but the Supreme Court is not required to hear every case; parties can petition for a writ of certiorari but of roughly 8,500 cases, the Supreme Court hears about 80 cases per term.

Movement through the state court system

Most cases start in the lower courts or the trial courts which include a jury and a judge. They can be courts of limited jurisdiction and devoted to specific issues like small claims, traffic, family, housing, juvenile, etc. There are also major trial courts for felonies and crimes where disputes generally involve higher costs or offenses. Both parties have the power to appeal to the Intermediate appeals court, est. in 1950's and 1960's and usually include panels of three judges. From there, parties can still appeal to the highest court similar to the Supreme Court but the court of last resort also has discretionary power similar to certiorari.

Vertical Judicial Review

National, state, and local governments review up and down

Unity of Command

One of Weber's principles of bureaucracy -Chain of command, hierarchical structure -system of higher and lower courts -precedent is the way in which unity of command is achieved; determined by higher courts and must be applied and followed in lower courts

Functional groupings of personnel

One of Weber's principles of bureaucracy -Differences between different judges: trial judges, appellate judges, Supreme Court justices, etc.

Control

One of Weber's principles of bureaucracy -Judicial appointments -Exceptions Clause, Article III Section 2, Congress has power to determine what cases make it into the court

Injury in Fact

Part of standing under the Case and Controversy Doctrine; can be an economic or monetary injury or a non-economic injury

Horizontal Judicial Review

Power of courts within one level of government across three branches

Mark Galanter Study "Why Haves come out ahead"

Repeat player versus one shotters; the advantage lies with the repeat players, those that are in the court all the time like insurance companies or big corporations for example -Haves come out ahead and repeat players have an advantage -One shotters have a lesser chance of winning -POINT: we need to be aware of the capability of each player -This advantage can be neutralized through planned litigation and interest group involvement; party capability theory

Rule 22

Rule for unlimited debate (filibuster); only possible in the Senate not the House; can be ended by a cloture (60 senators)

Scattershot vs. Single Shot approach

Scattershot approach: bring a lot of lawsuits forward, some will be successful and others will be lost Single shot approach: identify one case where you have a good chance of winning and that could have national focus *Single shot approach was eventually favored by the LDEF and Thurgood Marshall--eventually culminated into Brown v. Board of Education (1954)

Section 13 of Judiciary Act 1789 considered unconstitutional

Section 13 of the Judiciary Act of 1789 was considered unconstitutional in 1803 because Constitution Article III defines U.S. Supreme Court's original and appellate jurisdiction and this is not compatible with the Judiciary Act. Writ of Mandamus does not fall under original or appellate jurisdiction as defined by the Constitution. An ordinary act of congress may not change the constitution.

Formal Procedures that are mentioned in the Constitution for selecting federal judges

Selecting federal judges: article II section 2 -provides skeletal outline of process -the president shall nominate judges to the Supreme Court with the consent of the Senate

11th Amendment

Sovereign immunity; states cannot be dragged into federal court by a citizen

Case and Controversy Doctrine

Standing, ripeness, and mootness

William Brennan "Guardian of Our Liberties" (1976)

States have terrific courts and state courts could be more responsive to rights than the federal courts

Acts of legislature

Statutes

Process of Opinion Assignment

Takes place during the Second Judicial Conference. If the chief justice is in the majority, he can either choose to write the opinion himself or assign the opinion to another justice. If the chief justice is in the minority, the senior justice on the majority side will write the opinion or assign it to another justice. There is some strategy involved in this process. In a tight decision (5-4 or 6-3) you want someone in the middle to draft the opinion because he or she is more likely to present arguments that are compelling to the other side.

Nuclear Option

Term used early in the 2nd Bush Administration; w/ a simple majority, Senate an "change rules" which means it could changes its filibuster rule and vote on a new judge without the power of a filibuster; right now, if Democrats attempt a filibuster, the simple majority republicans could create a new rule through the nuclear option to end the process of filibuster

Concrete Review

The Supreme Court can only review cases that comes before it; high premium is placed on having an actual case in controversy; only form practices in the U.S.

No political questions

The Supreme Court cannot settle political questions. The Supreme Court has held that federal courts should not hear cases which deal directly with issues that Constitution makes the sole responsibility of the other branches of government. Baker v. Carr (1962)

Jurisdiction

The authority of courts to hear and decide cases; nature of the parties and the subject-matter determine jurisdiction

Balancing fairness and efficiency

The bureaucratic structure of the courts helps with efficiency but it is important to remember that courts have another motive besides efficiency which is justice; balancing justice and efficiency is important

Ripeness

The case is not yet "ripe," meaning no actual harm has occurred yet. Ripeness doctrine is related to the prohibition against courts providing advisory opinions, or ruling on hypothetical cases that haven't actually happened yet - another action that is prohibited by the "case or controversy" requirement. "Too early" for case to be heard.

Mapping out the process of judicial decision-making--First Judicial Conference

The first judicial conference is where the discuss list is discussed and a vote is cast whether or not to hear a particular case (rule ten, four justices need to want to hear the case). Clerk will then inform the parties of their denial or acceptance of writ of certiorari. Clerk then sets date for the oral argument (usually within three months) and then the appellant has 45 days to file a brief and the appellee has thirty days after that to file a brief in response.

Declaration of Incompatibility

The law or act is not in line with the Constitution and needs to be amended or adjusted; weak form of judicial review

Mapping out the process of judicial decision-making--Clerk Docket

The official clerk of the court creates the court docket, original and appellate docket (approx. 8500 cases per year)

Martin Shapiro and the New Policy View

Thought that you needed to look at the departures from the court prototype to determine -Found that judges are not independent but rather dependent: they have political motivations, backgrounds, pre-existing biases -That they don't apply law because the law has run out but rather novel solutions rather than pre-existing norms -multiple interactions/parties to achieve a non-dichotomous decision Shapiro observed that the real characteristics of judges and courts is that judges make policy; they are not mere mouthpieces of the law

How do judges make decisions?

Two approaches: legal formalism and legal realism

Appellate Jurisdiction of Supreme Court

U.S. Supreme Court can hear cases on appeal

en banc

U.S. court of appeals, judges sit en banc, re-hearing with all judges instead of the usual three judge panel

Supreme Court Phases

Warren Court: 1952-1969, liberal activism, 26 cases of judicial review Burger Court: 1969-1989, court is transition, 27 cases Rehnquist Court: 1989-2005, conservative activism, 38 cases Roberts Court: 2005-present, conservative activism, 17 cases so far

Interest Group Participation in Litigation: Wasby Study of Planned Litigation

Wasby looked at planned litigation by interest groups -NAACP: civil rights interest group and LDEF was its litigation arm; early efforts led by Thurgood Marshall -LDEF was responsible for planned litigation that would eventually culminate into landmark case in Brown v. Board of Education (1954) that established that separate but equal is inherently unconstitutional -Favored single-shot approach and targeted institutions of higher education in the hope that progress would trickle down -NAACP planned litigation served as a model for other interest groups

Departures from the Old View Prototype of the Courts

What do courts really look like?

How does the President choose his nominee?

With the help of: -Chief of Staff -Office of Legal Council -Attorney General (Head of Department of Justice) -ABA

Oliver Wendell Holmes

Wrote The Path of the Law which included more modern thinking on judicial decision-making; the mechanical, mathematical way is a fallacy and judges use a rational approach to law that requires analysis of social contexts; an attach on legal formalism

Abstract Review

high national courts may review acts before they go into effect; review is part of the legislative process and not based on actual/real disputes; practices in Germany and France but not allowed in U.S.