chapter 15 - judiciary

what case gave the court the power to make policy?

Marbury v. Madison (1803) with judicial review examples: - . The Court in Plessy established the common-law legal principle of separate but equal - In Brown, using the common-law principle of judicial review, the Court reinterpreted the Fourteenth Amendment's equal protection clause and found the segregation laws unconstitutional. The Court took its decision further, calling for integration of public schools with all deliberate speed.

administrative rule-making

bureaucrats use their administrative discretion to establish specific rules, regulations, and standards necessary for the effective and efficient implementation of policy

sources of US laws

constitutions, pieces of legislation, executive orders, rules and regulations made by administrative bodies, and judicial decisions

US district courts

do the bulk of the work of the federal judiciary have original, mandatory jurisdiction, which means they must hear every case filed with them 93 federal, 673 judgeships A judge presides over the trial court. The judge, or a jury if the defendant chooses a jury trial, decides what happened in the case, based on the application of the law to the facts presented in the courtroom. two parties to the lawsuit present evidence and witnesses testify Each state has between one and four district courts, and Washington, DC, and Puerto Rico each have a district court. Congress, through legislation, can modify the jurisdiction of district courts as well as change the number of district court judgeships. Defendants who lose in the district courts have the right to appeal their cases to a federal court of appeals if they believe the presiding judge misinterpreted or misapplied the law. - but a majority are not appealed most cases are just resolve din district courts

dual court system

each state has a judicial system that is responsible for resolving legal disputes over the state's laws while the federal judicial system is responsible for resolving legal disputes over national laws AND between state governments

through legislation and judicial decision making, the authority of the federal courts has...

evolved

a lawsuit that began in a state court can end up in the...

federal court system if a state court case raises questions about federal laws (typically about U.S. constitutional rights during an appeal), then the case may be brought to a federal appeals court after the state court of last resort, the highest court in the state's court system, has an opportunity to hear the case - twist to the independent functioning of state and federal courts

what is the most significant power the Supreme Court exercises?

judicial review

Constraints on Judicial Policy Making

- checks and balances - public accountability - internal constriants

Article I courts

Congress establishes Article I courts to administer and resolve conflicts regarding specific federal laws judges who preside over Article I courts are appointed to serve for fixed terms ex. U.S. Bankruptcy Courts, the U.S. Court of Military Appeals, and the U.S. Tax Court. ex. Foreign Intelligence Surveillance Act (FISA) court - empowers the government to conduct secret searches where necessary to protect national security, and it significantly broadened the powers of law enforcement agencies to engage in such investigations. Agencies must go before the FISA court to justify secret searches.

judicial competence

Constitutionally, federal judges are not required to have a law degree, nor do Supreme Court justices need to have prior judicial experience 1. Today, a law degree is expected, and judicial experience has also become a means to assess competence 2. look for candidates who evidence professional and personal integrity 3. solid oral and written communication skills

accusation: criminal vs civil

Defendant harmed the peace and safety of the society by violating the criminal law Respondent's action or inaction caused harm to an individual or group

conflict to be resolved: trial vs appellate courts

Is the accused guilty or not guilty? Did an error of interpretation or application of law occur?

who decides?: trial vs appellate courts

Judge in bench trial; jury in jury trial Panel of judges

reviewing the certiorari petition

Most Supreme Court justices pool their law clerks so that only one clerk reviews a certiorari petition and writes a cert memo

The _____________________ serves as the repository for the Court's recordings

National Archives or can listen at oyez.com

outcome: criminal vs civil

Punishment Remedy

law

a body of rules established by government officials that bind governments, individuals, and nongovernment organizations

penal code

a compilation of a state's criminal law

resolving legal disputes; courts in the United States have an ______________ judicial system

adversarial

court of appeal have __________ jurisdiction

appellate

deciding how to vote: the attitudinal model

indicates that judges allow their policy and ideological preferences to influence their decisions - Supreme Court justices are for the most part ideologically consistent in their own decision making - sometime vote against thier policy preferences

it is through __________________ that ______________ established inferior courts and special courts with distinctive jurisdiction

legislation; Congress

internal constraints

need to focus on the facts - Law schools train lawyers, and hence judges, to focus on the facts of the case and the relevant legal principles For lower-court judges, precedents from higher courts, as well as earlier decisions made by the court itself - impose limitations through the common-law doctrine of stare decisis. the federal district court and appeals court judges do not diverge far from Supreme Court precedent - because if they did so, they would risk having their decisions overturned by the Supreme Court

do presidents always succeed in appointing?

no Eisenhower regretted who he appointed to the court - earl warren didn't make the decisions that pres hoped for

Public criticism of judicial decisions by presidents is...

not unheard of or unusual Trump's attacks were different; he targeted the legitimacy of the courts to make these rulings and the integrity of the federal judges who make them - life tenure protects these justices and judges from being removed from the bench because a president or Congress doesn't like their rulings

type of jurisdiction: trial vs appellate courts

original appellate

Who appoints Supreme Court justices?

president's authority to appoint, with the advice and consent of the Senate, Supreme Court justices and other federal officers, including federal judges the power to appoint federal judges is a power shared by the president and the Senate long-term effect that a judge, particularly a Supreme Court justice, can have on constitutional interpretation and public policies the Constitution does not establish qualifications for judgeships; presidents are left to use their own discretion when nominating judges, and senators also use their discretion when providing advice and consent

trial courts

questions of facts are resolved

appellate courts

questions of interpretation and application of law

the decision made by the last court to hear the case __________.

stands

senatorial courtesy

the Senate will not confirm a nominee if a senator from the nominee's home state opposes the nominee

court cases affect

the daily lives of citizens

federal question

when cases decided there concern a conflict over federal law

specialized courts

Article I courts - Congress established the specialized courts through legislation grounded in its authority under Article I of the Constitution to "constitute tribunals inferior to the Supreme Court"

Marbury v. Madison (1803)

Established judicial review ruled that a section of the Judiciary Act of 1789 was unconstitutional. the U.S. Supreme Court argued something it had never argued before: that it had the power not only to review acts of Congress and the president but also to decide whether those acts (including laws enacted) were consistent with the Constitution and to strike down laws that conflicted with constitutional principles.

appellate jurisdiction

they are responsible for identifying and correcting errors made by judges in lower trial courts

original jurisdiction

they are the first courts to hear a case

selection criteria

- Presidents seek competent nominees - who will win Senate consent - demographic characteristics in efforts to make federal courts more representative [since Jimmy Carter] the political self-interest of presidents and senators makes the federal judicial appointment process politically contentious The lack of constitutionally enumerated judicial qualifications opens the door even wider to a politically contentious process

jobs of the courts of appeals

- clarify laws to determine if the judge(s) in the previous trial or hearing properly interpreted and applied the relevant laws to the case. - must navigate between conflicting laws - determine what the law is, and in so doing, they make law 1. each party to the legal dispute submits a legal brief that presents the facts as it understands them, the relevant law, and any favorable precedent cases - do not include the questioning of witnesses, nor do they use juries goal of each party's legal brief is to persuade the court to rule in its favor 2. A panel of judges reviews the legal briefs as well as the transcripts from the trial court and any previous appellate court hearings from the case 3. Judges may allow each party to make a brief oral argument, which may be interrupted by questions from the panel 4. The panel decides the case (with a simple majority vote) based on the review of the briefs, oral arguments when allowed, and deliberations among themselves and their law clerks 5. Appellate courts often write, announce, and publish opinions that provide the legal rationale for the court's decision

Sources of Law in the United States

- common law (judicial decisions) - constitutional law (constitutions) - statutes (legislation) - executive orders - administrative law (administrative rules and regulations)

judicial checks on other branches

- interpreting the meaning of laws and policies - evaluating the constitutionality of the actions of other branches - resolving conflicts between political actors and other individuals - ensuring that laws are applied consistently and fairly

trial courts

- original jurisdiction - resolve lawsuits by determining the truth of what occurred—the facts of the case - The dispute in a trial court may involve the claim that a defendant harmed society by violating criminal law, or it may involve the claim that a defendant caused harm to an individual, a group, or an organization by violating civil law - questioning of witnesses by lawyers for both parties - the presentation of evidence - The accused usually has the choice between a bench trial and a jury trial

Today, only about ________ of grievances or charges actually go to trial

1%

The federal court system is a three-tier hierarchical system;

1. At the bottom, in the first tier, are the U.S. district courts, which are the federal trial courts with original jurisdiction over a case. 2. In the middle tier of the federal system are the U.S. courts of appeals, which have appellate jurisdiction. 3. At the top of the federal court hierarchy, in the top tier, is the U.S. Supreme Court. The U.S. Supreme Court has appellate jurisdiction and rarely used, very limited, original jurisdiction.

cases on the US supreme court's docket process

1. original jurisdiction or applications for review by appeal or write of certiorari from federal and state courts (justices use rule of four to determine docket) 2. briefs submitted by both sides; amicus curiae briefs filed by interested parties 3. oral arguments presented by attorneys for each side 4. justices' conference: cases discussed; nonbinding votes taken; opinion writing assigned 5. justices' opinions drafted and circulated for comment 6. court's final decision announced

2 characteristics of dual sovereignty

1. the federal government establishes national law, and each state government establishes its own state laws 2. dual court system

the 2 goals of a law

1. to create a peaceful, stable society - by establishing rules of behavior that government enforces, with punishments imposed on those whom the government finds guilty of violating the law 2. to create processes by which conflicts about the rules and expected behaviors can be resolved

when did the supreme court begin audio recording oral arguments?

1955 it does not allow video recording or photographs - Therefore, the only images we have of Supreme Court cases are artists' sketches

Ultimately, the justices agree to review about _______ cases in each annual term that begins in October and typically runs through the following June or July.

80

Story of Marbury v Madison

Adams loses to Jefferson [democrat/anti-federalist] outgoing president Adams appoints fellow federalist Marbury, but incoming secretary of state James Madison [on Jefferson's side] refuses to file the paper work. Marbury sues to get the job. - writ of mandamus - makes them do their job (Marshall is a federalist) chief justice Marshall decides against Marbury and in doing so both democratic-republicans and federalists agreed that the supreme court has the power of judicial review federalists win in a sense - says supreme court gets to decide and the court was all run by federalists at the time - even though Adams was an anti-fed - he thought he succeeded created a compromise that got them power that they did not have prior both sides happy anti-feds win the case feds win the control of the supreme court

checks and balances

Article II Congress the power to create all federal courts other than the Supreme Court gives the president and the U.S. Senate important powers in determining who sits on all federal courts courts must rely on the executive branch to enforce their decisions - if presidents fail to direct the bureaucracy to carry out judicial decisions, those decisions carry little weight Congress also can control, through legislation, the number of judges or justices who serve in the federal judiciary - Congress has been willing to increase the number of judges only when its majority is of the same party affiliation as the incumbent president The two houses of Congress have a central role in deciding whether to impeach federal judges - The House issues the articles of impeachment, and the Senate conducts the impeachment trial Congress initiates the process of constitutional amendment and can attempt to change the Constitution to overrule a court decision with which it disagrees - in several cases Congress has embarked on constitutional amendment procedures in direct response to a Court decision with which members of Congress or their constituencies have disagreed - For example, the Twenty-Sixth Amendment (1971), which standardized the voting age to 18 years, came about after the Supreme Court ruled that states could set their own age limits for state elections the legislature and the executive can check the courts' power of judicial review through the creation of new laws - Congress approved and President Obama signed the Lilly Ledbetter Fair Pay Act in 2009, which overruled the Court's interpretation of law

standard of proof: criminal vs civil

Beyond a reasonable doubt Preponderance of evidence

what case was a catalyst for lawsuits in which litigants claim violations of their constitutional rights to equal protection of the law and due process?

Brown VS Board of Education prior to the Brown case, conflicts over the separation of powers within the national government and the distribution of powers between the national and state governments dominated the Supreme Court's docket. However, since the Brown case, the Supreme Court's decisions on individual rights have dominated Therefore, judicial policy making includes defending and creating individual rights through the courts' interpretations of laws.

An example of the interplay between public opinion and judicial decisions

Brown v. Board of Education Court ruling Initially, many southern state legislatures and even judges in federal district and appellate courts in the South did not comply with the Court's call to integrate schools. Not only did some school districts continue to segregate, but more than 100 southern legislators signed the "Southern Manifesto," a document that claimed the U.S. Supreme Court had overstepped its authority.

Thinking Critically: Should There Be a Retirement Age for Supreme Court Justices?

Calls for justices to retire are not unusual, although the call is typically sparked by ideological disagreements calls for a mandatory retirement age have grown louder yes: - age-related cognitive decline - Most state governments have taken advantage of this and established mandatory retirement ages The legitimacy of the Court is at stake no: - People should not be forced to retire simply because of the number of years they have lived - Retirement should be voluntary unless an employer can prove the employee is no longer competent - If the justice chooses not to retire, then impeachment might be an option - This approach serves fairness and due process other: - mental health assessments - host educational programs with neurological experts - a hotline for staff and judges to report signs of cognitive decline of judges - offer an incentive for justices to accept "senior status," which is a form of semi-retirement - establish an 18-year term for federal judges

discuss list

Compiled by the chief justice, a list of possible cases

amicus curiae brief: reviewing legal briefs

Filed by a person or group that is not a party to the lawsuit. It is written to influence the Court's decision in a specific case. "friend of the court" brief Controversial cases with the potential to affect public policy trigger the filing of many amicus briefs. common typically put forth new legal arguments and discuss broader societal effects Justices do not legally have to consider the information provided in amicus curiae briefs. However, research indicates that justices often use the information or the legal arguments contained in amicus curiae briefs to help them decide cases. no type of interest group dominates amicus activity provides an avenue for citizen engagement and civic discourse, which support a healthy democracy

verdict: criminal vs civil

Guilty or acquitted (not guilty) Liable or not liable

Antonio Scalia

However, even the most well-known originalist and advocate for judicial restraint, former Supreme Court justice Antonin Scalia, was not always faithful to the "original" meaning of the Constitution.

judicial review

Judicial review is the Court's authority to determine whether an action taken by any government official or governing body violates the Constitution courts are responsible for ensuring that the U.S. Constitution is not violated Marbury v. Madison (1803) all courts in the United States, federal and state, have judicial review authority.

big long story

Originally: it was very hard for justices to not be accepted Most people passed Now this doesn't happen Senatorial norm of deference Presidents nominate Senate confirms or rejects Senator norm of deference - give pres who they want Presidential norm of consulting senators - secret way to negotiate The case with Robert Bork was a minor fluff - court went back to normal accepting everyone after he was denied He was opposed by many Very conservative Disagreed with the civil rights movement and the federal level He wanted states to deal with the civil rights movement by themselves He sided with Nixon during the Nixon scandal Orders started to weigh in to get Bork not to be confirmed for the supreme court Ex. to kill a mocking bird star Henry Peck made a commercial to oppose him - celebrities participating in this kind of stuff doesn't happen often His nomination was eventually withdrawn His failed nomination = "Borked" after bork, many more people confirmed and no more people not being rejected until 2016 - the battle over lower courts Obama starts nominating lower court nominations in 2009 sen. McConnell opposes them republican minority powers so these nominations are confirmed filibusters - republicans used them a lot to prevent lower court judges from being confirmed democrats said these people were qualified so why are you preventing them but sen. said it was fine because they didn't like them DC court of appeals vacancies democrats said too many vacant seats Sen. Harry Reid changes rule on lower court nominations - did not allow filibusters on lower court nominees [did not apply to supreme court] democrat in 2016 changed this rule then republicans took control of the senate 2016 - Antonin Scalia died and Obama nominates people McConnell said they would not confirm anyone because in 7 months (it was an election year) a new pres would come in Merrick Garland was nominated by Obama but McConnell would not hear him Neil Gorsuch is nominated by president trump Democrats filibuster him because they think the situation was unfair he is confirmed though because they say that they can't filibuster in supreme courts anymore nothing in the constitution required hearings recent judicial nominations Kennedy retires [put in place of bork] Kennedy had sometimes sided with liberals liberals feared that the court would turn entirely against them with 5-4 majorities for a long time Kennedy was a moderate who could swing if replaced by a liberal or conservative, there would be no chance of a swing, and everything would be ruled one way or another trump nominates Kavanaugh dr. ford accuses him of sexual assault in 1982 judge Kavanaugh argues that the allegations are a democratic hit job Kavanaugh was confirmed 2020 liberal Ruth Bader Ginsburg died in September 2020 trump nominates Amy Coney Barett - even though they made Obama wait in an election year - remembering "the stolen seat" she is confirmed despite democratic protests court power balance shifts to 6-3 "court-packing" - do they need to add seats to the court? they did not confirm this idea - need a majority in the senate and did not get that steven breyer retires Biden campaign pledge nomination of Ketanji Brown Jackson "liberal" replacing a "liberal" Democrats control the senate now all past nominations changed the balance of the court - had the bigger fights will not change the balance of courts because it is a "Liberal" replacing a "liberal" - probably will get confirmed supreme court nominations are high-stakes not backroom deals anymore The last time someone tried to pack the courts - FDR because he wanted to pass his new deal plans "switch in time that saved nine" - he would have added members but he didn't because one member compromised and sided with FDR so the supreme court wouldn't become politicized (it is anyways but it wasn't back then) senate confirmations are more of a check today - got rid of the filibuster - used to only not allow someone in if they were not qualified - most people the president wanted passed through - then Bork - then it was much harder to get someone past the senate - easy to get someone past if a liberal replaces a liberal/a conservative replaces a conservative - presidents have to predict the environment before they select someone - will they pass? recent judicial nominations CONCLUSION - senate process may be broken - senators may refuse to confirm nominees based upon party - senate confirmations are more of a check today - dem or repub may add seats when they control the white house and congress - the court may have lost all reputation for neutrality - the judges are not neutral

which court used an activist stance? [conservative]

Rehnquist Court (1986-2005) overturned laws enacted by Congress such as the Gun-Free School Zones Act and a section of the Violence Against Women Act that created a right for victims of sexual misconduct to sue in federal courts also overturned the Florida Supreme Court's interpretation of Florida election law on counting votes

accuser: criminal vs civil

State or federal government whose criminal law was alleged violated (prosecutor) Individual or group that alleges harm (complainant)

constitutional law

The body of law established in constitutions - courts have had to resolve disputes over the meaning of the language in the U.S. Constitution

Original Jurisdiction of the Supreme Court

The framers limited the Supreme Court's original jurisdiction to those cases that concern ambassadors, public ministers, and consuls, and those involving two or more states. But over time, Congress, in cooperation with the Court, has decided that the Court should retain original jurisdiction only in cases involving suits between two or more states.

rule of four

The justices determine which cases to hear according to this practice the justices will hear a case if four or more of the nine justices decide they want to hear it. - They do not need to give reasons for wanting or not wanting to hear a case—they simply must vote

administrative law

The rules, regulations, and standards made by bureaucrats through administrative rule making ex. standards established by the Social Security Administration to determine eligibility for Social Security disability benefits

The Senate's Role: Advice and Consent

This sharing of power, with the president nominating judges and the Senate confirming them, operates in accordance with our system of checks and balances. [the Senate's power of advice and consent for presidential nominations to federal offices and judgeships involves the tradition of senatorial courtesy; the Senate will not confirm a nominee if a senator from the nominee's home state opposes the nominee.] In the case of federal judicial appointments, the Senate Judiciary Committee sends to the nominee's home-state senators a form called a "blue slip," so called because it is printed on blue paper, on which the senator can indicate support or opposition to a judicial nominee. At the discretion of the Senate Judiciary Committee chairperson, if one of the home-state senators does not support the nominee, or does not return the blue slip, then the nomination may not move forward in the confirmation process. Today, senatorial courtesy is considered in the selection of district court and courts of appeals judges. The Senate Judiciary Committee gathers information on and interviews judicial nominees. Then, the Committee votes on whether to recommend the nominees to the full Senate. - The full Senate uses this vote to signal whether a nominee is acceptable. Once Supreme Court justices and other Article III judges are confirmed by the Senate, they serve for as long as they want, or until death, or conviction by the Senate of an impeachable offense.

political ideology

Using party affiliation and previous decisions on the bench to assess a nominee's political ideology, presidents nominate judges, including Supreme Court justices, with whom they are ideologically compatible. Mindful that federal judges typically serve far beyond the tenure of the presidents who appoint them, presidents often regard these nominations as a way of cementing their own legacies - Liberal presidents nominate liberal judges, and conservative presidents nominate conservative judges

tort

When the harm is to a person's body or property and is caused by another person's negligence or other wrongful act examples: - medical malpractice suits - product liability lawsuits

evidence: trial vs appellate courts

Witnesses testify to facts Legal briefs and court transcripts are reviewed

US code

a compilation of all the laws ever passed by the U.S. Congress - one document

briefs: reviewing legal briefs

a document detailing the legal argument for the desired outcome The petitioner (the party that sought the Court's review) files with the Court a brief After the filing of this brief, the opposing party files its own brief with the Court basically their argument

jury trial

a group of citizens selected to hear the evidence determines guilt or liability Each juror (member of the jury) is expected to be impartial and neutral and base her or his decision on the facts

writ of certiorari

a higher court's order to a lower court to make available the records of a past case so that the higher court can review the case. a Latin term roughly translated as "a request to make certain"—for specific cases. A writ of certiorari is sent when the justices, using their discretionary jurisdiction, agree to hear a case.

decisions that can be made

affirm - agree with the lower court reverse - disagree with the lower court remand - send it back to the lower court - facts and info are unresolved and need to be resolved - lower court needs to rehear the case - new trial majority opinion - the decision of the court - 5 or more voted in one direction - a legal document that describes why they decided what they did - actual decision minority opinion - judges who oppose the decision of the court - why they think the decision made was wrong - critique majority opinion - help future judges to read to decide future cases - fuel for lawyers to consider other cases - actual decision concurring opinion - agree that it was the right direction - DISAGREE ON WHY - agree for different reasons dissenting opinion - disagree and disagree on why the minority said it was bad

which decision model is sued the most?

all three - none of these models explains every aspect of judicial decision making

The overwhelming majority of cases decided by the U.S. Supreme Court are ______________.

appeals

selection of cases - must have these things to have a case heard

appeals - must be a constitutional question that could change the ruling - they do not question the facts of the case - they assume the lower court already made the facts clear - the answer to the constitutional question is not decided and must be decided - not seen because the lower courts "tried it wrong" standing - must have standing - you had to of suffered harm or potential harm to you or your reputation or social standing from the lower court decision

certiorari petitions

asking for the review of a case already decided

oral arguments

attorneys' formal spoken arguments that lay out why the Court should rule in their client's favor give the justices the opportunity to ask the parties and their lawyers specific questions about the arguments in their briefs. To assist in their preparation for oral argument, justices typically have their law clerks prepare bench memos each side's lawyers have 30 minutes to make a statement to the Court and to answer the justices' questions - However, the justices can provide more time The justices frequently interrupt the attorneys during their oral arguments by asking questions and sometimes seem to ignore the lawyers entirely, instead talking with one another. - justices do not discuss the cases before oral argument - so they are often using questions to bring out points that they think their colleagues ought to know about This discourse takes place entirely in public view, and transcripts and even audiotapes are readily available to the public

Political scientists distinguish periods of court activity by changes in the...

chief justices

US courts of appeals

circuit courts 13 total federal courts, 179 judgeships (made by congress) First through Twelfth Circuit Courts each has a geographic area over which it has appellate jurisdiction. - hears appeals from the district courts in its geographic area (circuit) - Twelfth Circuit is better known as the DC Circuit because that is the area its jurisdiction covers, which includes appeals stemming from federal administrative agencies located in Washington, DC. Thirteenth Circuit is better known as the Federal Circuit. - jurisdiction is not geographically based; it is issue based. handles appeals of cases that cover specific federal matters such as international trade, government contracts, and patents. - Judges on the courts of appeals work in panels of three to review cases. - have mandatory jurisdiction; therefore, they hear all cases that are filed with them Losing parties can appeal to the U.S. Supreme Court; however, only a very small percentage do - the courts of appeals are in fact the last court to hear most cases appealed from the district courts.

undemocratic superlegislature

citizens mad that the people are being overturned by only 5 people against the will of the people/voters ex. proposition 8 CA - some laws in CA don't go through state legislature but go straight for the citizens to be enacted proposition 8 - only straight marriage allowed - a federal judge threw out proposition 8 - upset citizens - said it was "judicial tyranny"

preponderance of evidence

civil trials prove that the evidence indicates that the respondent is more likely than not to have caused the harm and is therefore liable

the supreme court is a ________ court

collegial made up of a panel of justices who must work closely together to evaluate a case and decide, with a simple majority vote, the outcome Collegially, they decide what cases to hear, resolve each case heard, and develop the legal reasoning that, as presented in the Court's written opinion, will persuade the public that the Court's decision is correct.

it is __________ for Supreme Court cases to be decided by a 5-4 vote

common indicates that the justices do not all agree on the same interpretation of constitutional language and its legal principles

what kind of law do courts make?

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 policymakers - the decisions they make profoundly affect not only the parties in the case but also society, the economy, and politics the U.S. Constitution is briefer and covers fewer topics and does not cover contemporary issues and topics This means that the U.S. Constitution leaves more room for courts to fill in gaps (to make policies to fill these gaps)

_____________________ provided for the basic structure of the U.S. Supreme Court and power of the federal judiciary

constitution

authority of the court

constitution - "judicial power" - brief - "shall be vested in a court" - doesn't say there should be 9 members - OG had 6 members - too many ties! so added 7th seat and then more as more circuit courts were made 10 during civil war 9 in 1869 - stayed since then even though they've added more circuit courts can be increased whenever we want actually - article III section I - gives court powers membership (9 justices) "judicial review" - review acts of congress and executive and states if they are constitutional - courts power to determine whether acts of gov are constitutional - not an essential part of democracy - not common in other world democracies - not in the constitution - added with court case fed 51 - checks and balances - Marbury v madison 1803 gave the judicial review - "It is emphatically the province and duty of the judicial department to say what the law it" - Marshall

executive orders

create and guide the bureaucracy in implementing policy and establish commissions A president can enact an executive order without input from the other branches of government - though executive orders are subject to judicial review and depend on the legislature for funding have the force and effect of law BUT ARE NOT LAWS - can be easily reversed by next president can be an efficient way to deal with crises and immediate issues

people also often use the term activism to...

criticize judges when they disagree with a decision, thereby limiting its utility in explaining judicial decisions but the term judicial activism is also applied to judges who view the Constitution as a living, evolving document

stare decisis

directs judges to identify previously decided cases with similar facts [precedents]

On Fridays throughout the Court's term, the justices meet in conference to...

discuss the cases on the discuss list. At this point, they vote on whether to issue a writ of certiorari - use rule of four

judges _____________ constituents to represent

do not have we expect judges to be independent—that is, impartial to individuals or groups—and uphold the Constitution and laws that comply with it. Because federal judges and many state judges are not elected, they must ensure that citizens perceive the courts as legitimate, in turn granting them the authority to decide conflicts and controversies

deciding how to vote: the legal model

focuses on legal norms and principles as the guiding force in judicial decision making judges consider existing precedents, relevant constitutional and statutory law, and the intent of those who wrote the relevant laws - Law schools train lawyers, and therefore judges, to follow the legal model

amicus curiae

friend of the court brief the court invites outside groups' opinions in to include in their opinion writings - written by these outside groups - the outside groups' opinion

US supreme court

has a very limited original jurisdiction - only on issues that occur between states hears appeals from both the federal courts and the state courts of last resort when cases decided there concern a conflict over federal law (known as a federal question). appellate jurisdiction - discretionary jurisdiction - select to hear only a fraction of the cases appealed to the Supreme Court each term 9 judges (justices) - One of these justices has been specially selected by a president to serve as the chief justice, the judge who provides both organizational and intellectual leadership on the Court. - Each of the remaining eight justices is an associate justice.

public accountability

have an impact on especially appellate courts such as the U.S. Supreme Court The Court rarely issues a decision that is completely out of step with the thinking of the majority of the population. 1. this is because the federal courts depend on the elected branches of government—which are directly responsive to public opinion—for the enforcement of their edicts. 2. When the Court does break with public opinion, it opens itself up to harsh criticism by the president, Congress, interest groups, and/or the general public. But sometimes in the case of a landmark decision that is out of touch with public sentiment, the Court's ruling and people's opinions align over time. - This shift can occur either because later courts adjust the original, controversial decision or, less commonly, because the Supreme Court's decision changes public opinion. 3. Citizens can also constrain the courts by threatening to ignore their rulings - can engage in civil disobedience the courts have little ability to enforce their decisions, and if people refuse to recognize those decisions and the other branches of the government fail to enforce them, the courts risk losing their authority and power. Fear of losing authority may explain in part why judicial decisions rarely fall out of step with the larger public stance on an issue. these constraints are not written into the U.S. Constitution

As federal judges are not elected, the federal courts must consider...

how the public perceives them, recognizing the importance of judicial legitimacy

chief justice's power

how to become chief justice - whoever comes next on the court after the current chief leaves everyone else in an associate justice chief justice still has 1 vote like anyone else special power of the chief - gets to vote last and gets to determine who writes the majority decision if they are on the majority side as well - voting last allows them to switch to the majority if they want to write the majority opinion a little weaker or more lenient to the minority opinion - this written thing needs approval by 4 other justices - ex. PPACA (Obama care) - chief upheld Obama care even though he was a republican so that he could weaken the majority opinion - said it exceeded the commerce clause but it is a tax clause [many conservatives dislike when things violate the commerce clause because they think too much fed gov]

other issues

impact of the supreme court - not everyone follows supreme court rulings right away - ex. New Orleans is not desegregated until 1963 after the Brown case - every case is different - a good lawyer can delay upper court myth - the supreme court makes decisions as the highest court in the land and thus the lower courts are relatively inconsequential/must just follow orders - BUT each case is decided on its own facts and thus there is latitude for lower courts depending upon how the facts differ from the precedent - few cases are ultimately tried before the supreme court and thus LOWER COURT DECISIONS ARE USUSALLY THE FINAL JUDICIAL WORD on most issues - the supreme court does not weigh in on all issues legislative actions with judicial tools - sometimes act contrary to congress to address some social need that has remained unaddressed - are they trying to do through the judiciary what might be best done by the legislature? - but what should courts do when legislatures fail to act?

independent

impartial to individuals or groups

civil disobedience

individuals or groups flout the law to make a larger point about its underlying unfairness

deciding how to vote: the strategic model

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 - the preferences of congress, the president, and other justices sitting on the collegial court, as well as concern for maintaining the legitimacy of the court system - If the Court makes decisions that are too far afield from societal norms, the public might begin to question the legitimacy of the Court in our democracy

judicial independence

insulating judges from the need to be accountable to voters or elected officials so that they can make impartial decisions based on the law The framers wanted to ensure judicial independence so that federal judges could make impartial decisions based on the law, protected from the need to win the votes of citizens or support to ensure judicial independence, their term extends until they resign, retire, or pass away, or until Congress removes them through the impeachment process Their salary cannot be cut by a president or Congress unhappy with their decisions goal of judicial independence is to allow the courts to rule "without fear or favor" and to not be dangerously reliant on other branches or overly responsive to partisan demands

judges must

interpret relevant laws and then apply them to the facts of the case while protecting the constitutional rights of all parties involved in litigation

common law

judge-made law grounded in tradition and previous judicial decisions binding on other judges when resolving later cases with similar facts common law gives judges the responsibility for interpreting law - especially if there are few precedents to guide them - When there is no written law for judges to apply when resolving disputes, the judges use their understanding of the societal norms of justice and fairness to resolve conflicts inherited from England - British common law

Advisory Opinion 116

judges and justices were so concerned about President Trump's assessment of the federal courts that they have responded publicly says that the committee that regulates the judicial code of conduct for federal judges recommended that judges consider whether the organization is "viewed by the public as having adopted a consistent political or ideological point of view equivalent to the type of partisanship often found in political organizations" before participating in that group's activities

two types of decisions the court makes/perspectives on the court

judicial activism vs judicial restraint activism = warren and burger - Constitution changes with the times - "liberal" - courts should develop new legal principles to address compelling social needs - ex. Brown V Board of Edu - need to see a compelling need - not willy nilly - still need to follow precedents restraint = Rehnquist and Roberts - conservative - courts should defer to elected officials and resist exercising their authority - courts should be hands-off - they shouldn't be making laws because they aren't elected voters - should decide through elected officials - still change things sometimes strict constructionism = courts should be extremely narrow in their interpretation of the law and adhere to the literal interpretation - if it is not in those specific words, we cant read it that way - stick close to the wording of the constitution and laws - an extreme version of restraint in practice - not many justices actually thought this way - likely conservatives - most likely Antonin Scalia - theory - critics - say this doesn't work because the understanding of words change and meanings change over time originalism = courts should interpret laws according to the way they would have been interpreted at the time - theory - an extreme version of restraint in practice - critics - we are not sure what people at the time though warren 1953-1969 burger 1969-1986 - civil rights era - activist court - said many things congress did were violations of civil liberties and rights to limit the power of elected officials - liberal court - American conservatives were suspicious of activism big decisions made by them - brown v board of edu - separate is not equal - mapp v ohio - exclusionary clause - gideon v wainwright - right to a competent attorney - miranda v arizona - need to be informed of miranda rights - roe v wade - privacy and abortion Rehnquist 1986-2005 Roberts 2005-present - once conservatives got majorities, then they exhibited activism decisions: - Bush v Gore - said Florida needed to stop counting votes - US v Morrison - commerce clause did not empower the violence against women act - McDonald v Chicago - said states could not restrict access to firearms - overturned a decision of elected officials in Chicago - Citizens United v FEC - could not regulate FEC spending on campaigns - Shelby v Holder - removed voter protections conservatives once complained, but then the conservatives who complained started doing judicial activism (but denied it)

final thoughts

judicial review the highest court in the land the courts and politics - membership - public opinion keeps the court from going too far outside of public opinion out of concern that it will lose its legitimacy undemocratic [non-elected] and democratic effect on democracy

legal authority of the court

jurisdiction - a given court's authority to hear a particular kind of case supremacy clause - federal over state laws - the supreme court is above all other courts original jurisdiction - the right to be the first court to try a case - very few in the supreme court - supreme court hears courts between the states and between diplomats under original jurisdiction appellate jurisdiction - the authority to review cases tried in another court - the majority of supreme court cases - 7,000 cases appealed each year; only 100 heard

federal trial court jurors

jurors must unanimously agree on the verdict

After the conference at which the nonbinding vote to decide a case occurs...

justices and their law clerks begin writing opinions The justices' law clerks often write the first draft of their opinions and frequently take the lead in communicating with the other justices through their law clerks. The justice assigned the majority opinion will circulate a draft and revise it based on input from the other justices. Other justices, with their clerks, will draft and circulate opinions with their legal reasoning - these become concurring or dissenting - Concurring opinions agree with the majority decision in the case but disagree with at least some of the legal reasoning or conclusions reached in the majority opinion. - Dissenting opinions not only disagree with the legal reasoning but also reject the underlying decision in the case.

Federalist No. 78

laws are often vague, ambiguous, and even contradictory. Therefore judges, through their interpretation and application of laws, play an important role in ascertaining the meaning of laws and ensuring their constitutionality this is how the courts make policy

legislation, acts, and statutes

laws written by legislatures

criteria on how presidents choose appointees

legacy - of their presidency - biggest part - more than laws and executive orders - people think of presidencies based on who they put on the supreme court - members are on the court for decades and will have legal impacts longer than a president would in their terms - William O. Douglas served the longest in the court - served 30 years after the president who appointed him had died (FDR) experience - in the judiciary - good ABA [American bar association - rate lawyers] ratings - ABA used by both parties - federalist society is used by conservatives - and years as an attorney, judge, or politician - if they have experience, they will make more solid legal arguments - the president will know their track record and can predict future behavior better - they have made decisions before - know what kind of decisions they will make in the future - know their opinions on certain issues - experience inoculates them from senatorial opposition - prevents oppositions on experience grounds ideology - in a broad sense - litmus test - litmus test chem - testing PH - litmus test poli - putting the nominee through a little "test"; a question of a nominee or candidate for which the answer will determine whether the nominee or candidate is supported or opposed - pick one issue and see if they agree with the senators to see if they will be supported - ex. Kennedy and roe v wade representativeness - Thurgood Marshall - first African-American on the Supreme court 1967 - prior to the civil rights movement - white protestant men - representative of the demographics of the population - should look like the American population - representation makes the court more legit - 1981 first woman - Sandra Day O'Conner - has only been 5 women ever

citizens trust the ______________________________________________________ more than they trust _________________________________________________________

nonelected policymakers (judges and justices) of the federal judicial branch; their elected federal representatives in the executive and legislative branches but deep partisanship within the population divides our trust in the federal judiciary - Belief in the judiciary seems contingent on whether your preferred party occupies the White House and therefore has the ability to appoint people who may support your own ideology.

For new budgetary allocations, the Constitution requires Congress to...

participate in the passing of legislation

the makeup of decisions

precedent - previous legal decisions - must look up previous cases with similar situations - must follow past decisions - keep things the same as much as possible - they still go against precedents and throw them out (brown threw out plessy) - must make a good case for why - makes law legit because it is consistent - stare decisis "let the decision stand" perspectives - activism - restraint - strict constructionism - originalism ideology - liberal presidents v conservative presidents - president selects people to the supreme court who share their ideologies conservative bloc Thomas - Bush Roberts - Bush Alito - Bush Gorsuch - Trump Kavanaugh - Trump Barrett - Trump Swing voters? none now but in past: Anthony Kennedy Liberal Bloc Breyer - Clinton Sotomayor - Obama Kagan - Obama - Garland was replaced by Gorsuch - "stolen seat" but most decisions do not break on traditional party lines - mostly controversial ones do public opinions - do not care about re-election - but they worry about the REPUTATION of the court - care about public opinion - highest rated among voters of all the institutions - congress is least popular - need to MACH PUBLIC OPINION in rulings to have a good REPUTATION - relies on their reputation for reason and fairness because it lacks congress's taxation and legislative power and lacks the president's executive power - the court can't do anything if people think the court is illegitimate the court is looking more and more political

precedents

previously decided cases with similar facts Judges use these precedent cases to decide new controversies, thus ensuring the law stays consistent in its meaning however, judges do have the discretion to step away from precedent if there are contradictory precedents, or if they believe the earlier decision was wrong

judicial review controversy

pros and cons constitutional vagueness vs super legislators - if someone needs to interpret, why not congress - makes only 9 people who we don't vote for in power checks and balances vs not in other democracies - yay checks and balances - other democracies don't have checks and balances so it doesn't have to exist - why don't we do it like... ? limiting president and congress vs too much power - they cant limit themselves - need to be checked too much power for the court protecting minorities vs overrule the will of the people - minorities = unpopular opinions - would elected officials (president and congress) stand up for unpopular opinions? probably not because they want to be re-elected so courts stand up for them neutral justice vs no democratic protection - people who are not elected are less partisan - no means to get rid of them if they are not good - impeachment is hard allow unelected people who serve for life to check the power of elected officials

judges are

reactive they must wait for someone to file a lawsuit (a legal dispute) or engage in litigation

the cult of the robe

refers to the deliberate mystification of the courts, and the Supreme Court in particular through the wearing of black robes, the practice of sitting on high benches, the exclusion of cameras, and the internal policy of not providing additional justification for decisions outside the official opinions. These trappings of office are designed to make judges and justices appear less political as a body and more trustworthy in their administration of law.

constitutions ________ the behavior of governments and the interactions of governments with their citizens

regulate

descriptive representation

representation on governing bodies of the country's leading demographic groups in proportion to their representation in the population at large.

the courts

resolve legal disputes [conflicts over law]

supreme court docket

schedule of cases it will review The decision to place a case on the Supreme Court's docket is a collaborative one, with the nine justices and their law clerks (four clerks per associate justice, and five for the chief justice) working together.

representation of demographic groups

serves the goal of descriptive representation There is an implicit assumption that a justice will better understand and serve the concerns of the racial, ethnic, gender, or other groups to which he or she belongs, thereby offering substantive representation. However, the representation may be more symbolic than real because not all men have the same views - cannot represent the diversity of views of the people they look like. many public figures and citizens say that the Court should mirror as closely as possible the main contours of the national demographic profile, because such descriptive representation offers symbolic representation, which indicates that our democracy is functioning appropriately by offering equal opportunity to all to influence government as a government official. Some presidents appear more concerned than others with enhancing diversity - democrats

In recent years, this barrier between the judiciary and the public has...

slipped more clear partisanship impact of this: at all levels of the appellate judiciary, there are a large percentage of cases on which panels of judges rule unanimously or that are untouched by partisan rancor. Only in the most visible and highly contested cases, on issues that affect citizens personally where parties have a stake and Congress has been unwilling or unable to make clear policy, do we see these close, split opinions along partisan lines But these are the only opinions that most Americans know about. These are the opinions that the mainstream media covers. These relatively rare opinions frame Americans' understanding of the judicial branch, possibly to our detriment the landmark cases are the ones we focus on that give us an incorrect view

bench memos

summarize the case and outline relevant facts and issues presented in the case documents and the legal briefs may also suggest questions for the justices to ask during oral arguments

the federal court of last resort is the...

supreme court

After the opinions are written and signed off on

the Court announces the decision by publishing it On rare occasions, the justices read their opinions from the bench - to bring immediate attention - to persuade congress to make laws to overturn the case/uphold the case - ex. RBG read her dissenting opinion in the Ledbetter v. Goodyear Tire & Rubber case

other courts

the supreme court is the court of the last appeal over two parallel court systems federal - supreme - circuit courts of appeal - 12 - federal district court - 94 state courts - state supreme courts - intermediate appeals courts (in some states) - lower state courts if you keep losing and appealing you'll end up in supreme - hard to get to the supreme court - only hear 100 cases the majority are decided in other courts - state courts hear more cases overall - civil convicts in prison, death row

Fair Pay Act in the courts

the Fair Pay Act of 2009 states that the 180-day statute of limitation to file an equal pay lawsuit established in the 1964 law resets after each new discriminatory paycheck. The Fair Pay Act is now the law the Supreme Court must apply in discrimination cases. - congress changed the meaning of the past supreme court ruling, which said that there was limited time to file a lawsuit to no more than 180 days after the first discriminatory paycheck was issued. Congress can write new legislation to overrule the Court's interpretation of law - In this way, the U.S. Supreme Court is part of an ongoing dialogue on laws and policies

which court used an activist stance? [liberal]

the Warren court 1953-1969 by rejecting the constitutionality of racial segregation also shaped the modern rights of the accused and the modern definitions of the privacy rights of individuals, which later formed the framework for the Court's thinking about abortion rights treated the Constitution as a living Constitution; that is, their legal interpretations took into consideration changes in social customs and norms

criminal law

the body of law dealing with conduct considered harmful to the peace and safety of society as a whole, even when directed against an individual - harmed society Each state establishes its own criminal law, compiled in its penal code. Congress has established national criminal law the vast majority of crimes are defined by state legislation state courts resolve the overwhelming majority of criminal lawsuits because the overwhelming majority of defendants charged with criminal offenses plead guilty before trial through plea bargaining, most criminal cases never go through a trial The government whose criminal statute was violated—either the national or state government—files the lawsuit - an act may violate both state and federal criminal law. In that situation, the state government and the national government can each prosecute based on its own law the government as prosecutor has the burden to prove its case against the defendant beyond a reasonable doubt When a court finds a criminal defendant guilty, typically the judge (even where there is a jury) determines the punishment - punishments can range from community service to capital punishment, depending on the severity of the crime criminal defendants who go to trial have a variety of constitutional rights to guarantee due process before the government infringes on their life, liberty, or pursuit of happiness through punishment Defendants found GUILTY have the legal right to an appeal - although the overwhelming majority do not appeal guilty verdicts - the government does not have the right to appeal not-guilty verdicts (because the Constitution protects people from double jeopardy) spend much more time resolving the larger volume of civil cases The vast majority of criminal cases are resolved via plea bargaining

civil law

the body of law dealing with private rights and obligations that are established by voluntary agreements (written and oral contracts) or laws - harmed an individual, group, or organization Civil lawsuits involve disputes between individuals, between an individual and a corporation, between corporations, and between individuals or corporations and a government. one party (the plaintiff) alleges that some action or inaction by the other party (the respondent) has caused harm to his or her body, property, psychological well-being, reputation, or civil rights or liberties. - ex. tort (When the harm is to a person's body or property and is caused by another person's negligence or other wrongful act) The most common civil lawsuits stem from traffic accidents also divorce and other family conflicts the complainant who files the lawsuit has the burden to prove that the respondent caused the harm burden of proof used in civil lawsuits is lower than that used in criminal trials. - In civil trials, the complainant must prove that the preponderance of evidence is on his or her side respondents do not have a constitutional right to the assistance of counsel - explain why so many people who are harmed by the action or inaction of another, and have grounds to file a civil lawsuit, decline to do so; they often cannot afford a lawyer Respondents found liable for causing harm are not punished like those found guilty in criminal cases but instead are required to remedy the harm, which often means paying monetary damages to the complainant in civil cases, the vast majority are resolved via settlements, arbitration, or contractual obligations not to sue - the overwhelming majority of civil lawsuits are settled (resolved) before trial

After reviewing the cert memos...

the chief justice distributes a list of possible cases, the discuss list. The associate justices may add cases to the discuss list based on their own reviews of cert memos.

judicial activism

the courts' willingness to strike down laws made by elected officials as well as to step away from precedents thereby creating new laws and policies the role of the courts is to check the power of the federal and state executive and legislative branches - when those governmental entities exceed their authority or violate the Constitution While the federal courts face criticism from all who disagree with their decisions, their authority to make such decisions traditionally has not been challenged.

rule of law

the expectation that all citizens—powerful and destitute—are governed by authoritatively adopted and consistently applied laws that are publicly announced before they are enforced requires an independent judiciary that is not beholden to a political party or a specific president or governor - protects us from tyranny and gives us a shared definition of fairness and justice - explains why many of us are so disappointed when the powerful seem to play by different rules and why we have high expectations of our legal process and judges

bench trial

the judge who presides over the court proceedings decides guilt or liability; there is no jury

Originalism/textualism

the judicial principle that the Constitution means no more or less than what it meant to those who wrote it - what it meant at the time try to interpret constitutional language based on the time, culture, norms, and customs AT THE TIME OF ITS writing. is often coupled with judicial restraint when characterizing a justice's judicial decision making

discretionary jurisdiction

the justices choose the cases they will hear from among all the cases appealed to the Court

After the oral arguments...

the justices meet in a private, justice-only conference to deliberate no law clerks are present, and no information is shared with the public The justices then take a nonbinding vote on the case - If the chief justice votes with the majority, he chooses whether he wants to write the opinion that will provide the legal reasoning for the Court's decision or if he will 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 the majority decides whether to write the opinion or assign the opinion to another justice The assignment of the majority opinion is crucial to the resolution of the case because, in writing the opinion, the justice may persuade some justices to change their vote

The correct decision means...

the justices upheld the legal principles found in the Constitution

judicial restraint

the limiting of their own power as judges these judges reject the idea that the courts' role is to actively check legislative and executive authority Noting that people elect officials to those branches to carry out the people's will believe that the judiciary, as the least democratic (unelected) branch of government, should not check the power of the democratically elected executive and legislative branches unless their actions clearly violate the Constitution

citizens must be confident that...

the rule of law is the basis of our government and that the courts uphold it fairly so therefore judges have historically worked hard not to have identifiable partisan alignments - Some justices do not vote in primary elections so that their party identification remains private. - the cult of the robe - judicial norms reinforce the ideal that judges and justices avoid partisan or overtly political commentary or actions

adversarial judicial system

the two sides (parties) each present its set of facts

beyond a reasonable doubt

there is no doubt in the mind of the judge (bench trial) or the jury that the defendant is guilty of violating the criminal law as charged

judicial legitimacy as it interferes with the ability of the courts to...

uphold the rule of law

picking members

when there is a vacancy, the president appoints someone - most are past lawyers Senate confirms or rejects at a hearing (senate judiciary hearing) President nominates and senate confirms or rejects the president needs to consider if there is any chance their nominee will get through the senate

how a court trial happens

writ of certiorari - 4 of 9 justices need to sign a writ for the case to be heard - signed to say that the justices want to hear the case solicitor general - the third-ranking member of the department of justice - supreme court litigant of the federal gov - can say yes or no to any case that is appealed - if they say no the court cannot hear it - "10th member of the court"

cert memo

written by a clerk and includes a description of the facts of the case, the pertinent legal arguments, and a recommendation as to whether the Court should hear the case. The clerk's cert memo is shared with all the justices.