Chapter 15- The Federal Courts

senatorial courtesy

An unwritten tradition whereby nominations for state-level federal judicial posts are usually not confirmed if they are opposed by a senator of the president's party from the state in which the nominee will serve. The tradition also applies to courts of appeals when there is opposition from a senator of the president's party who is from the nominee's state.

majorities

Announcing his retirement in 1981, Justice Potter Stewart made a few remarks to the handful of reporters present. Embedded in his brief statement was this observation: "It seems to me that there's nothing more antithetical to the idea of what a good judge should be than to think it has something to do with representative democracy." He meant that judges should not be subject to the whims of popular _______________. In a nation that insists so strongly that it is democratic, where do the courts fit in?

overturn

Another factor that increases the acceptability of activist courts is the ability to ____________ their decisions. First, the president and the Senate determine who sits on the federal bench. Second, Congress, with or without the president's urging, can begin the process of amending the Constitution to overcome a constitutional decision of the Supreme Court. Although this process does not occur rapidly, it is a safety valve. The Eleventh Amendment in 1795 reversed the decision in Chisolm v. Georgia , which permitted an individual to sue a state in federal court; the Fourteenth Amendment in 1868 reversed the decision in Scott v. Sandford , which held African Americans not to be citizens of the United States; the Sixteenth Amendment in 1913 reversed the decision in Pollock v. Farmer's Loan and Trust Co ., which prohibited a federal income tax; and the Twenty-sixth Amendment in 1971 reversed part of Oregon v. Mitchell , which voided a congressional act according 18- to 20-year-olds the right to vote in state elections.

standing to sue

Because getting into the Supreme Court is half the battle, it is important to remember ____________ __ ___ (litigants must have serious interest in a case, having sustained or being in immediate danger of sustaining a direct and substantial injury from another party or an action of government)—a criterion the Court often uses to decide whether to hear a case.

U.S. Court of Appeals for the Federal Circuit

-a special appeals court -Congress established this court -composed of 12 judges, in 1982 to hear appeals in specialized cases, such as those regarding patents, claims against the United States, and international trade.

legislators

Advocates of originalism view it as a means of constraining the exercise of judicial discretion, which they see as the foundation of the liberal Court decisions, especially on matters of civil liberties, civil rights, and defendants' rights. They also see following original intent or meaning as the only basis of interpretation consistent with democracy. Judges, they argue, should not dress up constitutional interpretations with their views on "contemporary needs," "today's conditions," or "what is right." It is the job of _____________, not judges, to make such judgments.

1. sex discrimination 2. sexual harrassment

Although women and people of different ethnicities and religions may desire to have people in their group appointed to the federal bench—at the very least, judgeships have symbolic importance for them —the real question is what, if any, policy differences result. There is some evidence that female judges on the courts of appeals are more likely than are male judges to support charges of __1__ __________________ and ____2____ ___________________, and they seem to influence the male judges deciding the cases with them. Similarly, racial and ethnic minority judges on these courts are more likely to find for minority plaintiffs in voting rights cases and also to influence the votes of white judges sitting with them. At the level of the Supreme Court, conservative Justice Antonin Scalia has said that Justice Thurgood Marshall "could be a persuasive force just by sitting there. He wouldn't have to open his mouth to affect the nature of the conference and how seriously the conference would take matters of race." It is true, of course, that Justice Clarence Thomas, the second African American justice, is one of the most conservative justices since the New Deal, illustrating that not everyone from a particular background has a particular point of view.

solicitor general

An important influence on the Supreme Court's decisions to accept cases is the ______1_____ _________. As a presidential appointee and the third-ranking official in the Department of Justice, the _____1_____ ________ is in charge of the appellate court litigation of the federal government. The ______1_____ ____________ and a staff of about two dozen experienced attorneys have four key functions: (1) to decide whether to appeal cases the government has lost in the lower courts, (2) to review and modify the briefs presented in government appeals, (3) to represent the government before the Supreme Court, and (4) to submit an amicus curiae brief on behalf of a litigant in a case in which the government has an interest but is not directly involved. The ________1______ _______________ are careful to seek Court review only of important cases. By avoiding frivolous appeals and displaying a high degree of competence, they typically earn the confidence of the Court, which in turn grants review of a large percentage of the cases they submit. Often, the Court asks the ______1_______ _____________ to provide the government's opinion on whether to accept a case.

1. agenda 2. law clerks 3. four 4. docket (list of cases to look at) 5. certiorari

At least once each week, the nine justices meet in conference. The first task of the justices at these weekly conferences is to establish an _____1_____ for the Court. Before the meeting, the chief justice circulates a list of cases to discuss, and any justice may add other cases. Because few of the justices can take the time to read materials on every case submitted to the Court, most rely heavily on __2___ ________ to screen each case. If ____3___ justices agree to grant review of a case (in what is known as the "rule of ___3___"), it is placed on the _____4_____ and scheduled for oral argument and the Court typically issues to the relevant lower federal or state court a writ of _______________ , a formal document calling up the case. In some instances, the Court will instead decide a case on the basis of the written record already on file with the Court.

1. chief justice 2. opinion

Back in the conference room, the ____1___ __________, who presides over the Court, raises a particular case and invites discussion, turning first to the senior associate justice. Discussion can range from perfunctory to profound and from courteous to caustic. If the votes are not clear from the individual discussions, the ____1____ ___________ may ask each justice to vote. Once a tentative vote has been reached on a case, it is necessary to write an ______2_____, a statement of the legal reasoning behind the decision for the case.

amicus curiae

Before the justices enter the courtroom to hear the lawyers for each side present their arguments, they have received elaborately prepared written briefs from each party involved. They have also probably received several ____1______ _________ briefs from parties (often groups) who are interested in the outcome of the case but who are not formal litigants. As already noted, ______1_____ _________ briefs may be submitted by the government, under the direction of the solicitor general, in cases in which it has an interest. For instance, if a case between two parties involves the question of the constitutionality of a federal law, the federal government naturally wants to have its voice heard. Administrations also use these briefs to urge the Court to change established doctrine. For example, the Reagan administration frequently submitted ______1______ ________ briefs to the Court to try to change the law dealing with defendants' rights.

interpretation

Both of these theories share the view that there is an authority, contemporaneous with a constitution's or statute's ratification, that should govern its _________________. However, originalists do not propose to turn the clock back completely, as by, say, upholding a statute that imposed the punishment of flogging, of which the Constitution's Framers approved.

John Roberts

By the early 1990s, the conservative nominees of Republican presidents, led by Chief Justice William Rehnquist, composed a clear Supreme Court majority. In 2005, _____ ___________ replaced Rehnquist as chief justice, but the basic divisions on the Court have remained relatively stable. Like the Burger Court, the Supreme Court in recent years has been conservative, and like both the Warren and the Burger Courts, it has been neither deferential to Congress nor reluctant to enter the political fray. The Court's decision in Bush v. Gore (2000) that decided the 2000 presidential election certainly represents a high point of judicial activism.

interpreting implementing consumer

Charles Johnson and Bradley Canon suggest that implementation of court decisions involves several elements: First, there is an _________1_________ population, heavily composed of lawyers and judges. They must correctly understand and reflect the intent of the original decision in their subsequent actions. Usually lower-court judges do follow the Supreme Court, but sometimes they circumvent higher-court decisions to satisfy their own policy interests. Second, there is an ___________2___________ population. Suppose the Supreme Court held (as it did) that prayers organized by school officials in the public schools are unconstitutional. The _________2_________ population (school boards and school administrators whose schools are conducting prayers) must then actually abandon prayers. Police departments, hospitals, corporations, government agencies—all may be part of the implementing population. With so many implementors, many of whom may disagree with a decision, there is plenty of room for "slippage" between what the Supreme Court decides and what actually occurs (as has been evident with school prayers). Judicial decisions are more likely to be implemented smoothly if implementation is concentrated in the hands of a few highly visible officials, such as the president or state legislators. Even then, the courts may face difficulties. Responding to the Brown decision ending legal segregation in the nation's public schools, in 1959 the Board of Supervisors for Prince Edward County, abetted by changes in Virginia laws, refused to appropriate any funds for the County School Board. This action effectively closed all public schools in the county to avoid integrating them. The schools remained closed for five years until the legal process finally forced them to reopen. Third, every decision involves a ________3_______ population. For example, the _________3_________ population of an abortion decision is those people who may want to have an abortion (and those who oppose them); the _________3________ of the Miranda decision on reading suspects their rights are criminal defendants and their attorneys. The _________3_________ population must be aware of its newfound rights and stand up for them.

hinder (prevent)

Congress and presidents can help or _________ judicial implementation. When the Supreme Court, the year after its 1954 decision in Brown v. Board of Education, ordered public schools desegregated "with all deliberate speed," President Eisenhower refused to state clearly that Americans should comply, which may have encouraged local school boards to resist the decision. Congress was not much help either; only a decade later, in the wake of the civil rights movement, did it pass legislation denying federal aid to segregated schools. Different presidents have different commitments to a particular judicial policy. For example, the Obama administration decided not to defend the constitutionality of the 1996 Defense of Marriage Act.

pluralism

Courts can also promote ______________. When groups go to court, they use litigation to achieve their policy objectives. Both civil rights groups and environmentalists, for example, have blazed a path to show how interest groups can effectively use the courts to achieve their policy goals. Thurgood Marshall, the legal wizard of the NAACP's litigation strategy, not only won most of his cases but also won for himself a seat on the Supreme Court. Almost every major policy decision these days ends up in court. Chances are good that some judge can be found who will rule in an interest group's favor. On the other hand, agencies and businesses commonly find themselves ordered by different courts to do opposite things. The habit of always turning to the courts as a last resort can add to policy delay, deadlock, and inconsistency.

secrecy

Deciding what to decide about is the first step in all policymaking. Courts of original jurisdiction cannot very easily _________ to consider a case; the U.S. Supreme Court has much more control over its agenda. The approximately 8,000 cases submitted annually to the U.S. Supreme Court must be read, culled, and sifted. At least once each week, the nine justices meet in conference. With them in the conference room sit some 25 carts, each wheeled in from the office of one of the 9 justices and each filled with petitions, briefs, memoranda, and every item the justices are likely to need during their discussions. These meetings operate under the strictest ______________; only the justices themselves attend.

amicus curiae

Despite the fact that the Supreme Court sits in a "marble palace," it is not as insulated from the normal forms of politics as one might think. For example, when the Court took up Webster v. Reproductive Health Services (1989), the two sides in the abortion debate flooded the Court with mail, targeted it with advertisements and protests, and bombarded it with 78 amicus curiae briefs. Members of the Supreme Court are unlikely to cave in to interest group pressures, but they are aware of the public's concern about issues, and this awareness becomes part of their consciousness as they decide cases. Political scientists have found that the Court is more likely to hear cases for which interest groups have filed _________ ________ briefs.

Neil Gorsuch

Donald Trump Conservative

partisan (committed member of a political party or political coalitions)

Federal judges have typically held office as a judge or prosecutor, and often they have been involved in __________ politics. This involvement is generally what brings them to the attention of senators and the Department of Justice when they seek nominees for judgeships. As former U.S. Attorney General and Circuit Court Judge Griffin Bell once remarked, "For me, becoming a federal judge wasn't very difficult. I managed John F. Kennedy's presidential campaign in Georgia. Two of my oldest and closest friends were senators from Georgia. And I was campaign manager and special unpaid counsel for the governor."

vote

Few eras of the Supreme Court have been as active in shaping public policy as that of the Warren Court (1953-1969), presided over by Chief Justice Earl Warren. Scarcely had President Eisenhower appointed Warren when the Court faced the issue of school segregation. In 1954, it held that laws requiring segregation of the public schools were unconstitutional. Later it expanded the rights of criminal defendants, extending the right to counsel and protections against unreasonable search and seizure and self-incrimination. It ordered states to reapportion both their legislatures and their congressional districts according to the principle of one person, one _______, and it prohibited organized prayer in public schools. So active was the Warren Court that rightwing groups, fearing that it was remaking the country, posted billboards all over the United States urging Congress to "Impeach Earl Warren."

overturns

Finally, if the issue is one of statutory construction, in which a court interprets an act of Congress, then the legislature routinely passes legislation that clarifies existing laws and, in effect, _____________ the courts. In 1984, for example, the Supreme Court ruled in Grove City College v. Bell that Congress had intended that when an institution receives federal aid, only the program or activity that actually gets the aid, not the entire institution, is covered by four federal civil rights laws. In 1988, Congress passed a law specifying that the entire institution is affected. Congress may also pass laws with detailed language to constrain judicial decision making. The description of the judiciary as the "ultimate arbiter of the Constitution" is hyperbolic (exaggerated); all the branches of government help define and shape the Constitution.

political backgrounds

From the earliest days of the Republic, federal judges have been politically astute in their efforts to maintain the legitimacy of the judiciary and to conserve their resources. (Remember that judges are typically recruited from ____________ ________________.) They have tried not to take on too many politically controversial issues at one time. They have also been much more likely to find state and local laws unconstitutional (about 1,100) than federal laws (fewer than 200).

precedent

Given the discretion that justices often have in making decisions, it is not surprising that consistent patterns related to their values and ideology—to conservative versus liberal positions—are often evident in their decisions. A number of scholars have proposed an attitudinal model of decision making in which justices decide cases based largely on the outcomes they prefer rather than on _______________ or the meaning or intentions of the Constitution's framers or of legislators. In other words, they argue, policy preferences matter in judicial decision making, especially on the nation's highest court. Although precedent, legal principles, and even political pressures from the public, Congress, and the White House constrain justices' discretion, justices usually arrive at a decision consistent with their policy preferences.

Summary of Federalist 78

Hamilton begins by telling the readers that this paper will discuss the importance of an independent judicial branch and the meaning of judicial review. The Constitution proposes the federal judges hold their office for life, subject to good behavior. Hamilton laughs at anyone who questions that life tenure is the most valuable advance in the theory of representative government. Permanency in office frees judges from political pressures and prevents invasions on judicial power by the president and Congress. The judicial branch of government is by far the weakest branch. The judicial branch posses only the power to judge, not to act, and even its judgments or decisions depend upon the executive branch to carry them out. Political rights are least threatened by the judicial branch. On occasion, the courts may unfairly treat an individual, but they, in general, can never threaten liberty. The Constitution imposes certain restrictions on the Congress designed to protect individual liberties, but unless the courts are independent and have the power to declare laws in violation of the Constitution null and void, those protections amount to nothing. The power of the Supreme Court to declare laws unconstitutional leads some people to assume that the judicial branch will be superior to the legislative branch. Hamilton examines this argument, starting with the fact that only the Constitution is fundamental law. To argue that the Constitution is not superior to the laws suggest that the representatives of the people are superior to the people and that the Constitution is inferior to the government it gave birth to. The courts are the arbiters between the legislative branch and the people; the courts are to interpret the laws and prevent the legislative branch from exceeding the powers granted to it. The courts must not only place the Constitution higher than the laws passed by Congress, they must also place the intentions of the people ahead of the intentions of their representatives. This is not a matter of which branch is superior: it is simply to acknowledge that the people are superior to both. It is futile to argue that the court's decisions, in some instances, might interfere with the will of the legislature. People argue that it is the function of Congress, not the courts, to pass laws and formulate policy. This is true, but to interpret the laws and judge their constitutionality are the two special functions of the court. The fact that the courts are charged with determining what the law means does not suggest that they will be justified in substituting their will for that of the Congress. The independence of the courts is also necessary to protect the rights of individuals against the destructive actions of factions. Certain designing men may influence the legislature to formulate policies and pass laws that violate the Constitution or individual rights. The fact that the people have the right to change or abolish their government if it becomes inconsistent with their happiness is not sufficient protection; in the first place, stability requires that such changes be orderly and constitutional. A government at the mercy of groups continually plotting its downfall would be in a deplorable situation. The only way citizens can feel their rights are secure is to know that the judicial branch protects them against the people, both in and outside government, who work against their interests. Hamilton cites one other important reason for judges to have life tenure. In a free government there are bound to be many laws, some of them complex and contradictory. It takes many years to fully understand the meaning of these laws and a short term of office would discourage able and honest men from seeking an appointment to the courts; they would be reluctant to give up lucrative law practices to accept a temporary judicial appointment. Life tenure, modified by good behavior, is a superb device for assuring judicial independence and protection of individual rights.

c. Nominated by president, confirmed by Senate

How is the chief justice chosen? a. Voted on by the other 8 justices b. The most senior justice gets the position c. Nominated by president, confirmed by Senate d. Picked by the Senate Judiciary Committee

80

How many cases does the Supreme Court hear per year? a. 100 b. 50 c. 80 d. 10,000

limited

However one evaluates the Court's direction, in most cases in recent years the Court has not created a revolution in constitutional law. Instead, it has __________, rather than reversed, rights established by liberal decisions such as those regarding defendants' rights and abortion. Although its protection of the First Amendment rights of free speech and free press has remained robust, the Court has tended no longer to see itself as the special protector of individual liberties and civil rights for minorities and has raised important obstacles to affirmative action programs. In the area of federalism, however, the Court has blazed new paths in constraining the federal government's power over the states.

per curiam

In recent years, the Court has made about 80 formal written decisions per year in which their opinions could serve as precedent and thus as the basis of guidance for lower courts. In a few dozen additional cases, the Court reaches a ____ _________ decision —that is, a decision without explanation. Such decisions resolve the immediate case but have no value as precedent because the Court does not offer reasoning that would guide lower courts in future decisions.

ask for a higher court

If you lose a case in the trial court, you can?

general principles

In addition, these jurists contend that trying to reconstruct or guess the Framers' intentions or meaning is very difficult. Recent key cases before the Supreme Court have concerned issues such as campaign financing, abortions, the Internet, and wiretapping that the Framers could not have imagined; there were no super-PACs, contraceptives or modern abortion techniques, or computers, electronic surveillance equipment, or telephones in 1787. When the Founders wrote the Constitution, they embraced not specific solutions but ____________ ________________, which frequently lacked discrete, discoverable meaning or intent. Moreover, there is often no record of their intentions, nor is it clear whose intentions should count—those of the writers of the Constitution, those of the more than 1,600 members who attended the ratifying conventions, or those of the voters who sent them there. This problem grows more complex when you consider the amendments to the Constitution, which involve thousands of additional "Framers." Moreover, historian Jack N. Rakove points out that there is little historical evidence that the Framers believed that their intentions should guide later interpretations of the Constitution.

half-hour

In most instances, the attorneys for each side have only a ______-______ to address the Court. During this time they summarize their briefs, emphasizing their most compelling points. The justices may listen attentively, interrupt with penetrating or helpful questions, request information, talk to one another, read (presumably briefs), or simply gaze at the ceiling. After 25 minutes, a white light comes on at the lectern (reading desk) from which the lawyer is speaking, and five minutes later a red light signals the end of that lawyer's presentation, even if he or she is in midsentence. Oral argument is over.

democratic

In some ways, the courts are not a very _______________ institution. Federal judges are not elected and are almost impossible to remove. Indeed, their social backgrounds probably make the courts the most elite-dominated policymaking institution. If democracy requires that key policymakers always be elected or be continually responsible to those who are, then the courts diverge sharply from the requirements of democratic government. The Constitution's Framers wanted it that way.

justiciable disputes

Issues capable of being settled as a matter of law

conflict

It is difficult to predict the politics surrounding future nominations to the Supreme Court. One prediction seems safe, however: as long as Americans are polarized around social issues and as long as the Court makes critical decisions about these issues, the potential for ________ over the president's nominations is always present.

one-fourth

It is not always easy to predict the policy inclinations of candidates, and presidents have been disappointed in their nominees about _____-_________ of the time. President Eisenhower, for example, was displeased with the liberal decisions of both Earl Warren and William Brennan. Once, when asked whether he had made any mistakes as president, Eisenhower replied, "Yes, two, and they are both sitting on the Supreme Court." George H. W. Bush was disappointed with David Souter, who ended up siding with the Court's liberal bloc on abortion rights and other issues.

Marbury v. Madison full case

John Adams appointed William Marbury to the minor post of justice of the peace in the District of Columbia. In the rush of last-minute business, however, Secretary of State John Marshall failed to deliver commissions to Marbury and 16 others. He left the commissions to be delivered by the incoming secretary of state, James Madison. Madison and Jefferson were furious at Adams's actions and refused to deliver the commissions. Marbury and three others in the same situation sued Madison, asking the Supreme Court to order Madison to give them their commissions. They took their case directly to the Supreme Court under the Judiciary Act of 1789, which gave the Court original jurisdiction in such matters. The new chief justice was none other than Adams's former secretary of state and archFederalist John Marshall, himself one of the "midnight appointments" (he took his seat on the Court barely three weeks before Adams's term ended). Marshall and his Federalist colleagues were in a tight spot. Threats of impeachment came from Jeffersonians fearful that the Court would vote for Marbury. Moreover, if the Court ordered Madison to deliver the commissions, he was likely to ignore the order, putting the prestige of the nation's highest court at risk over a minor issue. Marshall had no means of compelling Madison to act. The Court could also deny Marbury's claim. Taking that option, however, would concede the issue to the Jeffersonians and give the appearance of retreat in the face of opposition, thereby reducing the power of the Court. Marshall devised a shrewd solution to the case of Marbury v. Madison. In February 1803, he delivered the unanimous opinion of the Court. First, Marshall and his colleagues argued that Madison was wrong to withhold Marbury's commission. The Court also found, however, that the Judiciary Act of 1789, under which Marbury had brought suit, contradicted the plain words of the Constitution about the Court's original jurisdiction. Th us, Marshall dismissed Marbury's claim, saying that the Court, according to the Constitution, had no power to require that the commission be delivered. Conceding a small battle over Marbury's commission (he did not get it), Marshall won a much larger war, asserting for the courts the power to determine what is and what is not constitutional. As Marshall wrote, "An act of the legislature repugnant to the Constitution is void," and "it is emphatically the province and duty of the judicial department to say what the law is." The chief justice established the power of judicial review, the power of the courts to hold acts of Congress and, by implication, the executive in violation of the Constitution.

stare decisis

Judges and justices settle the vast majority of cases on the principle of _______ __________, meaning that an earlier decision should hold for the case being considered. All courts rely heavily on precedent —the way similar cases were handled in the past—as a guide to current decisions. Lower courts, of course, are expected to follow the precedents of higher courts in their decision making. If the Supreme Court, for example, rules in favor of the right to abortion under certain conditions, it has established a precedent that lower courts are expected to follow. Lower courts have much less discretion than the Supreme Court.

implementation

Judicial decision is the end of one process—the litigation process—and the beginning of another process—the process of judicial ___________________. Sometimes delay and stalling follow even decisive court decisions. There is, for example, the story of the tortured efforts of a young African American named Virgil Hawkins to get himself admitted to the University of Florida Law School. Hawkins's efforts began in 1949, when he first applied for admission, and ended unsuccessfully in 1958, after a decade of court decisions. Despite a 1956 order from the U.S. Supreme Court to admit Hawkins, legal skirmishing continued and eventually produced a 1958 decision by a U.S. district court in Florida ordering the admission of nonwhites but upholding the denial of admission to Hawkins. Thus, other courts and other institutions of government can be roadblocks in the way of judicial implementation.

hearing a case

Just before leaving office in 1801, the Federalists created a tier of circuit courts and populated them with Federalist judges; the Jeffersonian Democrats took over the reins of power and promptly abolished the entire level of courts. In 1869, the Radical Republicans in Congress altered the appellate jurisdiction of the Supreme Court to prevent it from ______________ _ _____ (Ex parte McCardle) that concerned the Reconstruction Acts. This kind of alteration is rare, but it occurred recently. The George W. Bush administration selected the naval base at Guantánamo as the site for a detention camp for terrorism suspects in the expectation that its actions would not be subject to review by federal courts. In June 2004, however, the Supreme Court ruled that the naval base fell within the jurisdiction of U.S. law and that the habeas corpus statute that allows prisoners to challenge their detentions was applicable. In 2005 and again in 2006, Congress stripped federal courts from hearing habeas corpus petitions from the detainees in an attempt to thwart prisoners from seeking judicial relief. In the end, however, the Supreme Court held Congress's actions to be unconstitutional.

1. dissenting 2. concurring

Justices are free to write their own opinions, to join in other opinions, or to associate themselves with part of one opinion and part of another. Justices opposed to all or part of the majority's decision write ______1______ opinions. _________2_______ opinions are those written not only to support a majority decision but also to stress a different constitutional or legal basis for the judgment.

class action suits

Lawsuits in which a small number of people sue on behalf of all people in similar circumstances.

1. lawyers 2. 50s 3. 60s 4. upper-middle 5. Protestants

Like their colleagues on the lower federal courts, Supreme Court justices are not a representative sample of the population. All have been ____1____, and all but six have been WHITE MALES (Thurgood Marshall, nominated in 1967; Sandra Day O'Connor, nominated in 1981; and Clarence Thomas, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, all on the current Court). Most have been in their _____2____ and _____3____ when they took office, from the ____4____-_______ or upper class, and _________5_________.

judicial

Many members of each party have been appointed, of course, and it appears that Republican judges in general are somewhat more conservative than are Democratic judges. Former prosecutors serving on the Supreme Court have tended to be less sympathetic toward defendants' rights than have other justices. It seems, then, that background does make some difference, on many issues party affiliation and other characteristics are imperfect predictors of __________ behavior.

retirements

Members of the federal bench also play the game of politics, of course, and may try to time their ________________ so that a president with compatible views will choose their successor and perhaps a like-minded Senate will vote on the nomination. For example, it appears that Justice David Souter timed his retirement in 2009 so that Barack Obama rather than George W. Bush would name a new justice. This concern about a successor is one reason why justices remain on the Supreme Court for so long, even when they are clearly infirm.

court-packing plan

Never was the Court as controversial as during the New Deal. At President Roosevelt's urging, Congress passed dozens of laws designed to end the Depression. However, conservatives (most nominated by Republican presidents), who viewed federal intervention in the economy as unconstitutional and tantamount (equal) to socialism, dominated the Court. The Supreme Court began to dismantle New Deal policies one by one. The National Industrial Recovery Act was one of a string of anti-Depression measures. Although this act was never particularly popular, the Court sealed its doom in Schechter Poultry Corporation v. United States (1935), declaring it unconstitutional because it regulated purely local business that did not affect interstate commerce. Incensed, Roosevelt in 1937 proposed what critics called a "__________-____________ ______." Noting that the average age of the Court was over 70, Roosevelt railed against those "nine old men." The Constitution gave the justices lifetime jobs, but Congress can determine the number of justices. Thus, FDR proposed that Congress expand the size of the Court, a move that would have allowed him to appoint additional justices sympathetic to the New Deal. Congress objected and never passed the plan. It became irrelevant, however, when two justices, Chief Justice Charles Evans Hughes and Associate Justice Owen Roberts, began switching their votes in favor of New Deal legislation. (One wit called it the "switch in time that saved nine.") Shortly thereafter, Associate Justice William Van Devanter retired, and Roosevelt got to make the first of his many appointments to the Court.

founders' intentions

Of course, originalists often disagree among themselves about original meanings, and sometimes they agree about the ____________ _____________ but disagree about overturning deeply rooted precedents, such as bans on segregation and school prayers, that may clash with those intentions,. Moreover, even when there is broad scholarly agreement about original understanding, originalists sometimes ignore it.

John Roberts

President Clinton's two nominees—Ruth Bader Ginsburg and Stephen Breyer—did not cause much controversy and were readily confirmed. Similarly, the Senate easily confirmed George W. Bush's nomination of _______ ___________ as chief justice to succeed William Rehnquist. Indeed, he was not an easy target to oppose. His pleasing and professional personal demeanor and his disciplined and skilled testimony before the Senate Judicial Committee gave potential opponents little basis for opposition.

Samuel Alito

President George W. Bush appointed this conservative judge to the Supreme Court.

Sonia Sotomayor

President Obama made his first nomination to the Court in 2009, selecting ________ _____________. Although conservatives raised questions about some of her previous statements and decisions, she was confirmed by a vote of 68 to 31, largely along party lines. When she took the oath of office, she became the first Hispanic justice. In 2010, the president nominated solicitor general Elena Kagan to the Court. She was confirmed by a vote of 63 to 37, once again largely along party lines.

slowed reversed

Presidents are typically pleased with the performance of their nominees to the Supreme Court and through them have __________ or _____________ trends in the Court's decisions. Franklin D. Roosevelt's nominees substantially liberalized the Court, whereas Richard Nixon's turned it in a conservative direction, from which it has yet to move.

policy

Presidents influence __________ through the values of their judicial nominees, but this impact is limited by numerous legal and "extralegal" factors beyond the chief executive's control. As Harry Truman put it, "Packing the Supreme Court can't be done. . . . I've tried it and it won't work. . . . Whenever you put a man on the Supreme Court, he ceases to be your friend. I'm sure of that."

1. minority 2. end 3. distant 4. balance 5. ideology

Presidents whose parties are in the ______1_____ in the Senate or who make a nomination at the __2__ of their terms face a greatly increased probability of substantial opposition. Presidents whose views are more ____3____ from the norm in the Senate or who are appointing a person who might alter the ______4_____ on the Court are also likely to face additional opposition. However, opponents of a nomination usually must be able to question a nominee's legal competence or ethics in order to defeat the nomination. Most people do not consider opposition to a nominee's _______5______ a valid reason to vote against confirmation. For example, liberals disagreed strongly with the views of William Rehnquist, but he was easily confirmed as chief justice. By raising questions about competence or ethics, opponents are able to attract moderate senators to their side and to make ideological protests seem less partisan.

activism

Proponents of judicial ______1_______, in which judges are less deferential to elected officials and sometimes make bold policy decisions, even charting new constitutional ground. Advocates of judicial ______1________ emphasize that the courts may alleviate pressing needs—especially needs of those who are politically or economically weak—left unmet by the majoritarian political process.

policy

Reacting bitterly to one of Chief Justice Marshall's decisions, President Andrew Jackson is said to have grumbled, "John Marshall has made his decision; now let him enforce it." Court decisions carry legal, even moral, authority, but courts must rely on other units of government to enforce their decisions. Judicial implementation refers to how and whether court decisions are translated into actual __________, thereby affecting the behavior of others.

conservative

Samuel Alito was a traditional _______________ and had a less impressive public presence than Roberts. Response to him followed party lines, but he appeared too well qualified and unthreatening in his confirmation hearings to justify a filibuster, and without one, his confirmation was assured. The Senate confirmed Alito by a vote of 58 to 42.

overrule

The Supreme Court is in a position to ______1_____ its own precedents, and it has done so more than 200 times. One of the most famous of such instances occurred with Brown v. Board of Education (1954), in which the court _______1______ Plessy v. Ferguson (1896) and found that segregation in the public schools violated the Constitution.

mootness ripeness

Similarly, judges typically attempt, whenever possible, to avoid deciding a case on the basis of the Constitution, preferring less contentious "technical" grounds. They also employ issues of jurisdiction, ________1_______ (whether a case presents a real controversy in which a judicial decision can have a practical effect), standing, ______2_______ (whether the issues of a case are clear enough and evolved enough to serve as the basis of a decision), and other conditions to avoid adjudication of some politically charged cases.

Marbury v. Madison

The 1803 case in which Chief Justice John Marshall and his associates first asserted the right of the Supreme Court to determine the meaning of the U.S. Constitution. The decision established the Court's power of judicial review over acts of Congress, (the Judiciary Act of 1789).

originalism

The Constitution does not specify a set of rules by which justices are to interpret it. There are a number of approaches to decision making. One is ______________, which takes two principal forms: 1. The original intent theory holds that interpretation of a written constitution or law should be consistent with what was meant by those who drafted and ratified it. Justice Clarence Thomas is the most prominent advocate of this view. 2. The original meaning theory is the view that judges should base their interpretations of a written constitution or law on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be. It is with this view that most originalists, such as Justice Antonin Scalia, are associated, 42 original meaning being more discernible than the often nebulous original intent.

1. distinguished 2. skilled and honorable

The Constitution sets no special requirements for judges or justices, but most observers conclude that the federal judiciary comprises a _________1________ group of men and women. Competence and ethical behavior are important to presidents for reasons beyond merely obtaining Senate confirmation of their judicial nominees. ___2______ and ______________ judges and justices reflect well on the president and are likely to do so for many years, and, of course, they can more effectively represent the president's views. The criteria of competence and ethics, however, still leave a wide field from which to choose; other characteristics also carry considerable weight.

remands (returns)

The Court conveys its decisions to the press and the public through formal announcements in open court. Media coverage of the Court remains primitive—short and shallow. Doris Graber reports that "much reporting on the courts—even at the Supreme Court level—is imprecise and sometimes even wrong." More important to the legal community, the decisions are bound weekly and made available to every law library and lawyer in the United States. There is, of course, an air of finality to the public announcement of a decision. In fact, however, even Supreme Court decisions are not self-implementing; they are actually "_____________" to lower courts, instructing them to act in accordance with the Court's decisions.

civil liberties

The cases the Court is most likely to select are those that involve major issues—especially _____ _________, conflict between different lower courts on the interpretation of federal law (as when a court of appeals in Texas prohibits the use of affirmative action criteria in college admissions and a court of appeals in Michigan approves their use), or disagreement between a majority of the Supreme Court and lower-court decisions.

solicitor general

The courts are not entirely independent of popular preferences, however. Turn-of-the-twentieth-century Chicago humorist Finley Peter Dunne had his Irish saloonkeeper character "Mr. Dooley" quip that "th' Supreme Court follows th' iliction returns." Many years later, political scientists have found that the Court usually reflects popular majorities. Even when the Court seems out of step with other policymakers, it eventually swings around to join the policy consensus, as it did in the New Deal. A study of the period from 1937 to 1980 found that the Court was clearly out of line with public opinion only on the issue of prayers in public schools. In addition, congressional Court-curbing proposals are typically driven by public discontent, and the Court usually responds to such proposals by engaging in self-restraint and moderating its decisions. Similarly, the Court often moves toward the position articulated on behalf of the White House by the _____________ __________.

powerful

The courts, Alexander Hamilton wrote in the Federalist Papers, "will be least in capacity to annoy or injure" the people and their liberties. Throughout American history, critics of judicial power have disagreed. They see the courts as too ______________ for their own— or the nation's—good. Yesterday's critics focused on John Marshall's "usurpations" of power, on the proslavery decision in Dred Scott , or on the efforts of the "nine old men" to kill off Franklin D. Roosevelt's New Deal legislation. Today's critics are never short of arguments to show that courts go too far in making policy.

Review trial court decision, use evidence to prove a case innocent or guilty

The job of the Court of the Appeals is

1. lawyers 2. white

The judges serving on the federal, district and circuit courts are not a representative sample of the American people. They are all _____1______ (although this is not a constitutional requirement). They are also overwhelmingly ___2___ males. Jimmy Carter appointed more women and minorities to the federal bench, more than all previous presidents combined. Ronald Reagan did not continue this trend, although he was the first to appoint a woman to the Supreme Court. In screening candidates, his administration placed a higher priority on conservative ideology than on diversity, as did George H. W. Bush's administration. Bill Clinton's nominees were more liberal than were the nominees of Reagan and Bush, and a large percentage of them were women and minorities. George W. Bush's nominees were more diverse than those of his father although less so than those of Clinton and Carter, and they were uniformly conservative. Barack Obama nominated mostly ideologically moderate judges and justices, and, for the first time in American history, the president nominated women and ethnic minorities to a majority of the judicial vacancies.

The Supreme Court

The only court the Constitution creates is?

Stephen Breyer

The primary alternative does not have a clear label, but those holding it view the Constitution as written in flexible terms, as a document whose meaning is dynamic and thus changes over time. Advocates of this approach to decision making, such as Justice ___________ _________, assert that the Constitution is subject to multiple meanings, to being given different interpretations by thoughtful people in different ages. Judges from different times and places will differ about what they think the Constitution means. Thus, judicial discretion comes into play even if judges claim to be basing decisions on original intent. For advocates of this approach, originalism's apparent deference to the intentions of the Framers is simply a cover for making conservative decisions.

political questions

The problem remains of reconciling the American democratic heritage with an active policymaking role for the judiciary. The federal courts have developed a doctrine of ___________ ____________ as a means to avoid deciding some cases, principally those that involve conflicts between the president and Congress. The courts have shown no willingness, for example, to settle disputes regarding the constitutionality of the War Powers Resolution, which Congress designed to constrain the president's use of force.

partisanship

The role of _________________ is really not surprising. Most of a president's acquaintances are made through the party, and there is usually a certain congruity between party and political views. Most judges and justices have at one time been active partisans—an experience that gave them visibility and helped them obtain the positions from which they moved to the courts. Moreover, judgeships are considered very prestigious patronage plums. Indeed, the decisions of Congress to create new judgeships—and thus new positions for party members—are closely related to whether the majority party in Congress is the same as the party of the president. Members of the majority party in the legislature want to avoid providing an opposition party president with new positions to fill with their opponents.

1. courtroom arguments 2. reflecting 3. opinions

The second task of the justices' weekly conferences is to discuss cases that the Court has heard. From the first Monday in October until June, the Court hears oral arguments in two-week cycles: two weeks of __________1_____ _____________ followed by two weeks of _______2_______ on cases and writing ______3_____about them.

Federal and state court systems

The two court systems in the United States are: 1. 2.

restraint

There are strong disagreements about the appropriateness of the courts playing a prominent policymaking role. Many scholars and judges favor a policy of judicial ______1______, in which judges adhere closely to precedent and play minimal policymaking roles, deferring to legislatures by upholding laws whenever possible. These observers stress that the federal courts, composed of unelected judges, are the least democratic branch of government and question the qualifications of judges for making policy decisions and balancing interests. Advocates of judicial ______1______ believe that decisions such as those on abortion and prayer in public schools go well beyond the "referee" role they say is appropriate for courts in a democracy.

opposition

To invoke the right of senatorial courtesy, the relevant senator usually simply states a general reason for ______________. Other senators then honor their colleague's views and oppose the nomination, regardless of their personal evaluations of the candidate's merits.

1. administrative 2. judicial

Typically, justices have held high ________1_______ or ______2______ positions before moving to the Supreme Court. Most have had some experience as a judge, often at the appellate level, and many have worked for the Department of Justice. Some have held elective office, and a few have had no government service but have been distinguished attorneys. The fact that many justices, including some of the most distinguished ones, have not had previous judicial experience may seem surprising, but the unique work of the Court renders this background much less important than it might be for other appellate courts.

Warren E. Burger

Warren's retirement in 1969 gave President Richard Nixon his hoped-for opportunity to appoint a "strict constructionist"—that is, one who interprets the Constitution narrowly—as chief justice. He chose Minnesotan _________ ___. ___________, then a conservative judge on the District of Columbia Court of Appeals. As Nixon hoped, the Burger Court turned out to be more conservative than the liberal Warren Court. It narrowed defendants' rights, though it did not overturn the fundamental contours of the Miranda decision. The conservative Burger Court, however, also wrote the abortion decision in Roe v. Wade , required school busing in certain cases to eliminate historic segregation, and upheld affirmative action programs in the Weber case. One of the most notable decisions of the Burger Court weighed against Burger's appointer, Richard Nixon. At the height of the Watergate scandal, the Supreme Court was called on to decide whether Nixon had to turn his White House tapes over to the courts. It unanimously ordered him to do so in United States v. Nixon (1974), thus hastening the president's resignation.

Criminal and Civil

What are the two basic kinds of cases?

This is especially a problem for the Supreme Court, which is more likely than other courts to handle cases at the forefront of the law, where precedent is typically less firmly established. Moreover, the justices are often asked to apply to concrete situations the vague phrases of the Constitution ("due process of law," "equal protection," "unreasonable searches and seizures") or vague statutes passed by Congress. Th is ambiguity provides leeway for the justices to disagree (the Court decides unanimously only about one-third of the cases in which it issues full opinions) and for their values to influence their judgment. In contrast, when precedents are clear and legal doctrine is well established, legal factors are more likely to play a preeminent role in Supreme Court decision making.

What happens when precedents are unclear?

d. Ideology; their system of ideas and ideals, especially one that forms the basis of economic or political theory and policy.

What is the main criterion presidents use to select judicial nominees? a. State where they are from b. Religion c. Race d. Ideology

c. Judicial review

What power of the Court was established in Marbury v. Madison? a. Control of its docket b. Original jurisdiction c. Judicial review d. Affirmative action

a. Stare decisis

What principle governs judicial decision making? a. Stare decisis b. Ex post facto c. Amicus curiae d. Quid pro quo

the decision of the lower court from which the case came is sustained

When the justices have written their opinions and taken the final vote, they announce their decision. At least 6 justices must participate in a case, and decisions are made by majority vote. If there is a tie (because of a vacancy on the Court or because a justice chooses not to participate because of a conflict of interest), what happens? Five votes in agreement on the reasoning underlying an opinion are necessary for the logic to serve as precedent for judges of lower courts.

Analysis of Federalist 78

With a view toward creating a judiciary that would constitute a balance against Congress, the Convention provided for the independence of the courts from Congress. Hamilton opposes vesting supreme judicial power in a branch of the legislative body because this would verge upon a violation of that "excellent rule," the separation of powers. Besides, due to the propensity of legislative bodies to party division, there is "reason to fear that the pestilent breath of faction may poison the fountains of justice." Hamilton, therefore, praises the Constitution for establishing courts that are separated from Congress. He is pleased to note that to this organizational independence there is added a financial one. Another factor contributing to the independence of the judiciary is the judges' right to hold office during good behavior. It is in connection with his advocacy of that "excellent barrier to the encroachments and oppressions of that reprehensive body," that "citadel of the public justice," that Hamilton pronounces judicial review as being part of the Constitution. Judicial review is another barrier against too much democracy. Exercised by state courts before the Federal Convention met, and taken for granted by the majority of the members of the Convention, as well as by the ratifying conventions in the states, judicial review is expounded by Hamilton as a doctrine reaching a climax and a conclusion in this Federalist paper. Starting out from the premise that "a constitution is, in fact, and must be regarded by the judged, as a fundamental law," Hamilton considers judicial review as a means of preserving that constitution and, thereby, free government. To be more concrete, when Hamilton considers the judiciary both as a barrier to the encroachments and oppressions of the representative body and as the citadel of public justice, i.e., the citadel for the protection of the individual's life, liberty, and property, he states that judicial review means a curb on the legislature's encroachments upon individual rights. Parallel to every denial of legislative power in essay seventy-eight goes an assertion of vested rights. Note that the Supreme Court did not ultimately grant itself the explicit power of judicial review until the case Marbury v. Madison in 1803. Although he considers a power-concentration in the legislature as despotism, Hamilton does not perceive a strong judiciary as a threat to free government. He admits that individual oppression may now and then proceed from the courts, but he is emphatic in adding that the general liberty of the people can never be endangered from that quarter. When the judge unites integrity with knowledge, power is in good hands. As the "bulwarks of a limited Constitution against legislative encroachments," they will use that power for the protection of the individual's rights rather than for infringements upon those rights. Through judicial review vested rights are protected not only from the legislature, they are also protected from the executive. An executive act that is sanctioned by the courts and - since it is the duty of the judges to declare void legislative acts contrary to the Constitution - that is thus in conformity with the will of the people as laid down in the Constitution, cannot be an act of oppression.

1. Opinion

______1______ writing is no mere formality. In fact, the content of an one may be as important as the decision itself. Broad and bold _____1______ have far-reaching implications for future cases; narrowly drawn _______1______ may have little impact beyond the case being decided. Tradition in the Supreme Court requires that the chief justice, if in the majority, write the ______1_____ or assign it to another justice in the majority. The chief justice often writes the _____1______ in landmark cases, as Earl Warren did in Brown v. Board of Education and Warren Burger did in United States v. Nixon . If the chief justice is part of the minority, the senior associate justice in the majority assigns the _____1______. The person assigned to write an _____1_____ circulates drafts within the Court, justices make suggestions, and they all conduct negotiations among themselves. The content of the ______1______ can win or lose votes. A justice must redraft an _______1_____ that proves unacceptable to the majority of his or her colleagues on the Court.

American Civil Liberties Union (ACLU)

_______1_______ is another interest group that is always seeking cases and litigants to support in its defense of civil liberties. One ____1____ attorney stressed that principle took priority over a particular client, saying that some of ____1_____'s clients are "pretty scurvy little creatures. It's the principle that we're going to be able to use these people for that's important."

Geography

________1_______ was once a prominent criterion for selection to the Court, but it is no longer very important. Presidents do like to spread the slots around, however, as when Richard Nixon decided that he wanted to nominate a Southerner. At various times there have been what some have termed a "Jewish seat" and a "Catholic seat" on the Court, but these guidelines are not binding on the president. For example, after a half-century of having a Jewish justice, the Court did not have one from 1969 to 1993. And although only 12 Catholics have served on the Court, 6 of the current justices are Catholic.

Partisanship

_________1_________ has been and remains an important influence on the selection of judges and justices. Only 13 of 112 members of the Supreme Court have been nominated by presidents of a different party. Moreover, many of the 13 exceptions were actually close to the president in ideology, as was the case in Richard Nixon's appointment of Lewis Powell. Herbert Hoover's nomination of Benjamin Cardozo seems to be one of the few cases in which _________1_________ was completely dominated by merit as a criterion for selection.

Litigants

__________ end up in court for a variety of reasons. Some are reluctant participants— the defendant in a criminal case, for example. Others are eager for their day in court. For some, the courts can be a potent weapon in the search for a preferred policy.

Ideology

_______________ is important in the selection of judges and justices. Presidents want to appoint to the federal bench people who share their views. In effect, all presidents try to "pack" the courts. They want more than "justice"; they want policies with which they agree. Presidential aides survey candidates' decisions (if they have served on a lower court), 19 speeches, political stands, writings, and other expressions of opinion. They also glean information from people who know the candidates well. Although it is considered improper to question judicial candidates about upcoming court cases, it is appropriate to discuss broader questions of political and judicial philosophy. The Reagan administration was especially concerned about such matters and had each potential nominee fill out a lengthy questionnaire and be interviewed by a special committee in the Department of Justice. Both George H. W. Bush and George W. Bush were also attentive to appointing conservative judges. Bill Clinton was less concerned with appointing liberal judges, at least partly to avoid costly confirmation fights, and instead focused on identifying persons with strong legal credentials, especially women and minorities. Barack Obama approached judicial nominations much like Clinton.

Litigants

a person engaged in a lawsuit whether it is the person suing or the person being sued

Plaintiff

a person who brings a case against another in a court of law.

1. making nominations 2. approving

he White House, the Department of Justice, and the Federal Bureau of Investigation conduct competency and background checks on persons suggested for judgeships, and the president usually selects a nominee from those who survive the screening process. If one of these survivors was recommended by a senator to whom senatorial courtesy is due, it is difficult for the president to reject the recommendation in favor of someone else who survived the process. Thus, senatorial courtesy turns the Constitution on its head, and, in effect, the Senate ends up _____1____ _____________ and the president then _______2______ them.

John Roberts

Chief Justice of the Supreme Court, appointed by GWB in 2006, conservative

judicial restraint

An approach to decision making in which judges play minimal policymaking roles and defer to legislatures whenever possible.

Defendant

an individual, company, or institution sued or accused in a court of law.

U.S. Supreme Court

-Sitting at the pinnacle of the American judicial system. -The Court does much more for the American political system than decide individual cases. -Among its most important functions are resolving conflicts among the states and maintaining national supremacy in the law. -It plays an important role in ensuring uniformity in the interpretation of national laws. -For example, in 1984 Congress created a federal sentencing commission to write guidelines aimed at reducing the wide disparities in punishment for similar crimes tried in federal courts. -By 1989, more than 150 federal district judges had declared the law unconstitutional, and another 115 had ruled it valid. Only they could resolve this inconsistency in the administration of justice, which it did when it upheld the law.

courts of appeals

-focus on correcting errors of procedure and law that occurred in the original proceedings of legal cases, such as when a district court judge gave improper instructions to a jury or misinterpreted the rights provided under a law. -These courts are appellate courts and therefore hold no trials and hear no testimony. Their decisions set precedent for all the courts and agencies within their jurisdictions.

judicial activism

An approach to decision making in which judges sometimes make bold policy decisions, even charting new constitutional ground.

stare decisis

A Latin phrase meaning "let the decision stand." Most cases reaching appellate courts are settled on this principle.

political questions

A doctrine developed by the federal courts and used as a means to avoid deciding some cases, principally those involving conflicts between the president and Congress.

two

A president cannot have much impact on the Court unless there are vacancies to fill. Although on the average there has been an opening on the Supreme Court every ____ years, there is a substantial variance around this mean. Franklin D. Roosevelt had to wait five years before he could nominate a justice; in the meantime, he was faced with a Court that found much of his New Deal legislation unconstitutional. Jimmy Carter was never able to nominate a justice. Between 1972 and 1984, there were only two vacancies on the Court. Nevertheless, Richard Nixon was able to nominate four justices in his first three years in office, and Ronald Reagan had the opportunity to add three new members.

solicitor general

A presidential appointee and the third-ranking office in the Department of Justice. They are in charge of the appellate court litigation of the federal government.

opinion

A statement of legal reasoning behind a judicial decision. The content may be as important as the decision itself

bench trial

A trial with no jury

originalism

A view that the Constitution should be interpreted according to the original intentions or original meaning of the Framers. Many conservatives support this view.

representation

Access to lawyers has become more equal does not, of course, mean that quality of ______________ is equal. The wealthy can afford high-powered attorneys who can invest many hours in their cases and arrange for testimony by expert witnesses. The poor are often served by overworked attorneys with few resources to devote to an individual case.

Legal Services Corporation

Although lawyers were once available primarily to the rich, today the federally funded ______ ___________ ______________ employs lawyers to serve the legal needs of the poor, and state and local governments provide public defenders for poor people accused of crimes. Some employers and unions now provide legal insurance, through which individuals who have prepaid can secure legal aid when needed.

which cases to hear

All nine justices sit together to hear cases and make decisions. But they must first decide which _______ ________ ___ _______. A familiar battle cry for losers in litigation in lower courts is "I'll appeal this all the way to the Supreme Court!" In reality, this is unlikely to happen. Unlike other federal courts, the Supreme Court decides which cases it will hear.

U.S. attorney

An important player at the district court level. Each of the 91 regular districts has one who is nominated by the president and confirmed by the Senate and who serves at the discretion of the president (they do not have lifetime appointments). They and their staffs prosecute violations of federal law and represent the U.S. government in civil cases.

1. federal

Appeals from state courts must involve a "substantial federal question"; in deference to the states, the Supreme Court hears cases from state courts only if they involve ___________ law, and then only after the petitioner has exhausted all the potential remedies in the state court system. (Losers in a case in the state court system can appeal only to the Supreme Court, and not to any other federal court.) The Court will not try to settle matters of state law or determine guilt or innocence in state criminal proceedings. To obtain a hearing in the Supreme Court, a defendant convicted in a state court might demonstrate, for example, that the trial was not fair as required by the Bill of Rights, which was extended to cover state court proceedings by the due process clause of the Fourteenth Amendment.

courts of appeals

Appellate courts empowered to review all final decisions of district courts, except in rare cases. In addition, they also hear appeals to orders of many federal regulatory agencies.

Sonia Sotomayor

Appointed by President Obama in 2009, first Hispanic Supreme Court Justice

judgeship

Because of the strength of this informal practice, presidents usually check carefully with the relevant senator or senators ahead of time to avoid making a nomination that the Senate will not confirm. Moreover, typically when there is a vacancy for a federal district ___________, the relevant senator or senators from the state where the judge will serve suggest one or more names to the attorney general and the president. If neither senator is of the president's party, then the party's state congresspersons or other state party leaders may make suggestions. Other interested senators may also try to influence a selection.

Ruth Bader Ginsburg

Bill Clinton, liberal

Stephen Breyer

Bill Clinton, liberal

American Bar Association's Standing Committee

Candidates for nomination usually keep a low profile. They can accomplish little through aggressive politicking, and because of the Court's standing, actively pursuing the position might offend those who play important roles in selecting nominees. The _____________ ____ ___________________'s _______________ _________________ on the federal judiciary has played a varied but typically modest role at the Supreme Court level. Presidents have not generally been willing to allow the committee to prescreen candidates before their nominations are announced. George W. Bush chose not to seek its advice at all.

1. senatorial courtesy

Central to the Senate's consideration of state-level federal judicial nominations to the district courts and courts of appeals is the unwritten tradition of ______________ ___________: 1. For district court positions, the Senate does not confirm nominees if they are opposed by a senator of the president's party from the state in which the nominee is to serve. 2. For courts of appeals positions, the Senate does not confirm nominees opposed by a senator of the president's party from the state of the nominee's residence.

justiciable disputes

Conflicts must not only arise from actual cases between litigants with standing to sue, but they must also be _______ _______—issues that are capable of being settled by legal methods. For example, one would not go to court to determine whether Congress should fund missile defense, for the matter could not be resolved through legal methods or knowledge.

1. Supreme Court

Congress has empowered the U.S. courts of appeals to review all final decisions of district courts, except in rare instances in which the law provides for direct review by the ________1___ __________ (injunctive orders of special three-judge district courts and certain decisions holding acts of Congress unconstitutional). Courts of appeals also have authority to review and enforce the orders of many independent regulatory commissions, such as the Securities and Exchange Commission and the National Labor Relations Board. About 75 percent of the more than 55,000 cases filed in the courts of appeals each year come from the district courts.

legislative

Congress has established _______1_______ courts for specialized purposes. +Court of Military Appeals +Court of Federal Claims +Court of International Trade +Tax Court These courts are staffed by judges who have fixed terms of office and who lack the protections against removal or salary reductions that judges on constitutional courts enjoy. The judges apply a body of law within their area of jurisdiction but cannot exercise the power of judicial review (of finding the actions of the legislative or executive branch unconstitutional).

original

Courts with _____1______ jurisdiction hear a case first, usually in a trial. They determine the facts about a case, whether it is a criminal charge or a civil suit. More than 90 percent of court cases begin and end in the court of ______1_______ jurisdiction. Lawyers can sometimes appeal an adverse decision to a higher court for another decision.

appellate

Courts with _______1_______ jurisdiction hear cases brought to them on appeal from a lower court. These courts do not review the factual record, only the legal issues involved. At the state level, the process normally ends with the state's highest court of appeal, which is usually called the state supreme court. Litigants may appeal decisions from a state high court only to the U.S. Supreme Court, and only if they meet certain conditions, discussed next.

U.S. marshals

District judges rely on an elaborate supporting cast, including clerks, bailiffs, law clerks, stenographers, court reporters, and probation officers. ____ ____________ are assigned to each district to protect the judicial process and to serve the writs that the judges issue. Federal magistrates, appointed to eight-year terms, issue warrants for arrest, determine whether to hold arrested persons for action by a grand jury, and set bail. They also hear motions subject to review by their district judge and, with the consent of both parties in civil cases and of defendants in petty criminal cases, preside over some trials. As the workload for district judges increases (more than 309,000 cases commenced in 2010), 4 magistrates are becoming essential components of the federal judicial system.

National Association for the Advancement of Colored People (NAACP)

Few groups have been more successful in finding good cases and good litigants than the _______1_______, which decided to sue the school board of Topeka, Kansas, on behalf of a young schoolgirl named Linda Brown in Brown v. Board of Education (1954). The _____1_____ was seeking to end the policy of "separate but equal"—meaning racially segregated—public education, and _____1_____ legal counsel Thurgood Marshall believed that Topeka represented a stronger case than did other school districts because the city provided segregated facilities that were otherwise genuinely equal. The courts could not resolve the case simply by insisting that expenditures for schools for white and African American children be equalized.

one

For most of the twentieth century, confirmations of Supreme Court nominees were routine affairs. Only ______ nominee failed to win confirmation in the first two-thirds of the century. The situation changed beginning in the 1960s, tumultuous times that bred ideological conflict. Although John F. Kennedy had no trouble with his two nominations to the Court—Byron White and Arthur Goldberg—his successor, Lyndon Johnson, was less fortunate. In the face of strong opposition, Johnson had to withdraw his nomination of Abe Fortas (already serving on the Court) to serve as chief justice; as a result, the Senate never voted on Homer Thornberry, Johnson's nominee to replace Fortas as an associate justice. Richard Nixon, the next president, had two nominees in a row rejected after bruising battles in the Senate.

amicus curiae ("friend of the court")

Groups support litigants with ________ ______ ("_______ _ ___ _________") briefs, which attempt to influence the Court's decision, raise additional points of view, and present info not contained in the briefs of the attorneys for the official parties to the case. In controversial cases, many groups may submit such briefs to the Court: groups presented 136 briefs in the health care reform case in 2012.

judicial implementation

How and whether court decisions are translated into actual policy, thereby affecting the behavior of others. The courts rely on other units of government to enforce their decisions.

precedent

How similar cases have been decided in the past.

Samuel Alito

Ideological conflict returned to the fore, however, when Bush then nominated White House counsel Harriet Miers to replace Justice Sandra Day O'Connor. By settling on a loyalist with no experience as a judge and little substantive record on abortion, affirmative action, religion, and other socially divisive issues, the president shied away from a direct confrontation with liberals and in effect asked his base on the right to trust him on his nomination. However, many conservatives, having hoped and expected that he would make an unambiguously conservative choice to fulfill their goal of clearly altering the Court's balance, were bitterly disappointed and highly critical. They demanded a known conservative. The nomination also smacked of cronyism, with the president selecting a friend rather than someone of obvious merit, and the comparison with Roberts underscored the thinness of Miers's qualifications. In short order, Miers withdrew from consideration, and the president nominated __________ _____.

strike it down

If a law is unconstitutional, the Supreme Court can _______.

the verdict does not change

If an appellate court affirms a case, it means?

Clarence Thomas

In June 1991, when Associate Justice Thurgood Marshall announced his retirement from the Court, President George H. W. Bush announced his nomination of another African American, federal appeals judge ____1__________ __________, to replace Marshall. ______1________ was a conservative, so this decision was consistent with the Bush administration's emphasis on placing conservative judges on the federal bench. Liberals were placed in a dilemma. On the one hand, they favored a minority group member serving on the nation's highest court, and particularly an African American replacing the Court's only African American. On the other hand, ______1_______ was unlikely to vote the same way as Thurgood Marshall had voted, and was likely instead to strengthen the conservative trend in the Court's decisions. This ambivalence inhibited spirited opposition to _____1______, who was circumspect about his judicial philosophy in his appearances before the Senate Judiciary Committee. ______1______'s confirmation was nearly derailed, however, by charges of sexual harassment leveled against him by University of Oklahoma law professor Anita Hill. Ultimately, following Hill's testimony and ______1______'s denial of the charges, he was confirmed in a 52-to-48 vote—the closest margin by which a Supreme Court nomination had been confirmed in more than a century.

de facto veto

In early 2009, Senate Republicans added a new element to senatorial courtesy when they sent President Obama a letter in which they vowed to prevent the confirmation of judicial nominees in instances where the White House did not properly consult Republican home-state senators. The implication of this letter is that members of the opposition party would have a ____ _________ _____ power, something without precedent in the history of judicial selection.

The Supreme Court gets to choose which case to take

It's difficult to take a case to the Supreme Court because?

impeachment

Judges are the central participants in the judicial system, and nominating federal judges and Supreme Court justices is a president's opportunity to leave an enduring mark on the American legal system. Guaranteed by the Constitution the right to serve "during good behavior," federal judges and justices enjoy, for all practical purposes, lifetime positions. They may be removed only by conviction of ________________, which has occurred a mere seven times in over two centuries. Congress has never removed a Supreme Court justice from office, although it tried but did not convict Samuel Chase in 1805. Nor can Congress reduce the salaries of judges, a stipulation that further insulates them from political pressures. The president's discretion is actually less than it appears, however, since the Senate must confirm each nomination by majority vote. Because the judiciary is a coequal branch, the upper house of the legislature sees no reason to be especially deferential to the executive's recommendations.

district courts

The 91 federal courts of original jurisdiction. They are the only federal courts in which trials are held and in which juries may be impaneled.

amicus curiae briefs

Legal briefs submitted by a "friend of the court" for the purpose of influencing a court's decision by raising additional points of view and presenting info not contained in the briefs of the formal parties

appeal

Most of the cases handled in the district courts are routine, and few result in policy innovations. Usually district court judges do not even publish their decisions. Although most federal litigation ends at this level, a large percentage of the cases that district court judges actually decide (as opposed to those settled out of court or by guilty pleas) go forward on ____1_____. A distinguishing feature of the American legal system is the relative ease of ____1____. U.S. law gives everyone a right to an _____1______ to a higher court. The loser in a case only has to request an _____1_____ to be granted one. Of course, the loser must pay a substantial legal bill to exercise this right.

Elena Kagan

Obama appointed her to the Supreme Court - liberal justice / moderate

standing to sue

Plaintiffs must have what is called ________ ___ _____; they must have serious interest in a case, which is typically determined by whether they have sustained or are in immediate danger of sustaining a direct and substantial injury from another party (such as a corporation) or an action of government.

Recess appointment; presidential appointment made when the Congress is not in session that usually lacks enough votes in the Senate for confirmation. The position must be confirmed by the Senate by the end of the next session of Congress, or the position becomes vacant.

Senators of the opposition party filibustered or otherwise derailed the confirmations of a number of high-profile nominations of Presidents Clinton and George W. Bush. In response, the presidents appointed some judges to the courts of appeals as ______1_____ ________________. They are unusual and good only for the remainder of a congressional term. They are also likely to anger opposition senators. After the Republicans nearly voted to end the possibility of filibustering judicial nominations, senators from both parties forged a deal without White House approval that allowed some—but not all—of Bush's stalled judicial nominees to receive floor votes. Nevertheless, conflict over nominations has continued as the Republican minority has used secret holds, threats of filibusters, and various Senate procedures to delay and often stymie Barack Obama's judicial nominations, even at the district court level.

1. lesser 2. state of residence

Senators play a ____1____ role in the recruitment of Supreme Court justices than in the selection of lower-court judges, as the jurisdiction of the Court obviously goes beyond individual senators' states or regions. Thus presidents typically consult with senators from the ____2___ __ _________________ of a nominee after they have decided whom to select. At this point, senators are unlikely to oppose a nomination, because they like having their state receive the honor and are well aware that the president can simply select someone from another state. Although home-state senators do not play prominent roles in the selection process for the Court, the Senate actively exercises its confirmation powers and, through its Judiciary Committee, may probe a nominee's judicial philosophy in great detail.

Supreme Court

The Constitution is vague about the structure of the federal court system. Specifying only that there would be a ______________ _______, the Constitution left it to Congress's discretion to establish lower federal courts of general jurisdiction. In the Judiciary Act of 1789, Congress created these additional constitutional courts, and although the system has been altered over the years, the United States has never been without them.

appellate

The Court does have an original jurisdiction, yet very few cases arise under it. The government does not usually wish to prosecute diplomats (it just sends them home), and there are not many legal disputes involving states as states (as opposed to, say, a prosecutor representing a state in criminal trial). Almost all the business of the Court comes from the ______1_______ process. Litigants may appeal cases from both federal and state courts. The vast majority of appeals heard by the Supreme Court are from the federal courts (i.e., from the federal system appellate courts).

1. sitting judges 2. federal judges

The Department of Justice may ask ______1__ ________, (________2_______ __________), to evaluate prospective nominees. __________ _______ initiate recommendations, advancing or retarding someone's chances of being nominated. In addition, candidates for the nomination are often active on their own behalf. They alert the relevant parties that they desire the position and may orchestrate a campaign of support. As one appellate judge observed, "People don't just get judgeships without seeking them."

1. 12 2. 2 3. 3

The United States is divided into __1__ judicial circuits, including one for the District of Columbia. Each circuit, except that for Washington, D.C., serves at least __2__ states and has between 6 and 28 permanent circuit judgeships (179 in all), depending on the amount of judicial work in the circuit. Each court of appeals normally hears cases in rotating panels consisting of __3__ judges but may sit en banc (with all judges present) in particularly important cases. Decisions in either arrangement are made by majority vote of the participating judges.

jurisdiction

The authority of a court to hear a case

class action suits

The courts have broadened the concept of standing to sue to include _____ ________ _______, which permit a small number of people to sue on behalf of all other people in similar circumstances. These suits may be useful in cases as varied as civil rights, in which a few persons seek an end to discriminatory practices on behalf of all who might be discriminated against, and environmental protection, in which a few persons may sue a polluting industry on behalf of all who are affected by the air or water that the industry pollutes. In recent years, the Supreme Court has placed some restrictions on such suits.

district 91

The entry point for most litigation in the federal courts is one of the _____1_____ courts, of which there are __2__, with at least 1 in each state, in addition to 1 in Washington, D.C., and 1 in Puerto Rico (there are also 3 somewhat different territorial courts for Guam, the Virgin Islands, and the Northern Mariana Islands). The ____1_____ courts are courts of original jurisdiction; they hear no appeals. They are the only federal courts that hold trials and impanel juries. The 675 district court judges usually preside over cases alone, but certain rare cases require that 3 judges constitute the court. Each district court has between 2 and 28 judges, depending on the amount of judicial work within its territory.

statutory construction

The judicial interpretation of an act of Congress. In some cases where this is an issue, Congress passes new legislation to clarify existing laws.

original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case.

appellate jurisdiction

The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved.

1. federal 2. states 3. bankruptcy 4. administrative 5. agencies 6.Admiralty 7. maritime 8. aliens

The jurisdiction of the district courts extends to the following: 1. _____1_____ crimes. About 98 percent of all the criminal cases are heard in state and local court systems, not in the federal courts. Moreover, only a small percentage of the persons convicted of federal crimes in the federal district courts actually have a trial. Most enter guilty pleas as part of a bargain to receive lighter punishment. 2. Civil suits under _____1____ law. As with criminal cases, state and local courts handle most civil suits. Also as with criminal cases, only a small percentage of those civil cases that commence in the federal courts are decided by trial—about 1 percent of the more than 250,000 civil cases resolved each year; 3 in the vast majority of cases, litigants settle out of court. 3. Civil suits between citizens of different ___2____, or between a citizen and a foreign national, where the amount in question exceeds $75,000. Such diversity of citizenship cases may involve, say, a Californian suing a Texan. Congress established this jurisdiction to protect against the possible bias of a state court in favor of a citizen from that state. In these cases, federal judges are to apply the appropriate state laws. 4. Supervision of ______3_______ proceedings. 5. Review of the actions of some federal ___________4_________ ______5__________. 6. ________6_______ and _______7______ law cases. 7. Supervision of the naturalization of ____8____.

Supreme Court

The pinnacle of the American judicial system. The court ensures uniformity in interpreting national laws, resolves conflicts among states, and maintains national supremacy in law. It has both original jurisdiction and appellate jurisdiction, but unlike other federal courts, it controls its own agenda.

judicial review

The power of the courts to determine whether acts of Congress and, by implication, the executive are in accord with the U.S. Constitution. It was established by John Marshall and his associates in Marbury v. Madison.

1. White house aides 2. attorney general 3. Department of Justice

The president operates under fewer constraints in nominating persons to serve on the Supreme Court than in nominations for the lower courts. Although many of the same actors are present in the case of Supreme Court nominations, their influence is typically quite different. The president usually relies on ___1______ _________ ______, the _____2______ ____________, and the ______3__________ __ _____________ to identify and screen candidates for the Court. Sitting justices often try to influence the nominations of their future colleagues, but presidents feel little obligation to follow their advice.

standing to sue

The requirement that plaintiffs have a serious interest in a case, which depends on whether they have sustained or are likely to sustain a direct and substantial injury from another party or from an action of government.

state

The vast majority of all criminal and civil cases involve ___1___ law and are tried in __1__ courts. Criminal cases such as burglary and civil cases such as divorce normally begin and end in the ___1____, not the federal, courts.

1. nine

There are ___1___ justices on the Supreme Court: 8 associates and 1 chief justice (only members of the Supreme Court are called justices; all others are called judges). The Constitution does not require this number, however, and there have been as few as 6 justices and as many as 10. Congress altered the size of the Supreme Court many times between 1801 and 1869. In 1866, it reduced the size of the Court from 10 to 7 members so that President Andrew Johnson could not nominate new justices to fill 2 vacancies. When Ulysses S. Grant took office, Congress increased the number of justices to 9 because it was confident that he would nominate members to its liking. Since then, the number of justices has remained stable.

Clarence Thomas

This man was an African American jurist, and a strict critic of affirmative action. He was nominated by George H. W. Bush to be on the Supreme Court in 1991, and shortly after was accused of sexual harassment by Anita Hill. Hearings were reopened, and he became the second African American to hold a seat in the Supreme Court.

1. 153 2. 112 3. 20

Through 2012, there have been __1__ nominations to the Supreme Court, and __2__ people have served on the Court. Four people were nominated and confirmed twice, 8 declined appointment or died before beginning service on the Court, and 29 failed to secure Senate confirmation. Presidents have failed __3__ percent of the time to appoint the nominees of their choice to the Court—a percentage much higher than for any other federal position.

Senate

Traditionally, the __________ confirmed lower federal court nominations swiftly and unanimously. However, the increasing polarization of partisan politics in recent years has affected judicial nominations, especially those for the courts of appeals. Increasingly, lower court confirmations have become lengthy and contentious proceedings. Interest groups opposed to nominations have become more active and encourage senators aligned with them to delay and block nominations. As a result, there has been a dramatic increase in the time for confirmation, which in turn has decreased the chances of confirmation. Since 1992, the Senate has confirmed only 60 percent of nominees to the courts of appeals.

Robert H. Bork

Two of President Reagan's nominees proved unsuccessful. In 1987, Reagan nominated _____1_______ __. __________ to fill the vacancy created by the resignation of Justice Lewis Powell. ___1__ testified before the Senate Judiciary Committee for 23 hours. A wide range of interest groups entered the fray, mostly in opposition to the nominee, whose views they claimed were extremist. In the end, following a bitter floor debate, the Senate rejected the president's nomination by a vote of 42 to 58. Six days after the Senate vote on ____1___, the president nominated Judge Douglas H. Ginsburg to the high court. Just nine days later, however, Ginsburg withdrew his nomination after disclosures that he had used marijuana while a law professor at Harvard.

plaintiff defendant

Two parties must bring a case to the court before it may be heard. Every case is a dispute between a _____1______ and a ______2_______, in which the former brings some charge against the latter. Sometimes the ____1____ is the government, which may bring a charge against an individual or a corporation. All cases are identified with the name of the _____1______ first and the _____2______ second, for example, State v. Smith or Anderson v. Baker. In many (but not all) cases, a jury, a group of citizens (usually 12), is responsible for determining the outcome of a lawsuit.

1. already on the Court 2. outside 3. Senate Judiciary Committee

When the chief justice's position is vacant, the president may nominate either someone __1______ __ ___ ____________ or someone from ______2______ to fill the position. Usually presidents choose the latter course to widen their range of options, but if they decide to elevate a sitting associate justice—as President Reagan did with William Rehnquist in 1986—the nominee must go through a new confirmation hearing by the ____3______ ______________ ________________.

Criminal law case

Which law case comprises of the government charging an individual with violating specific laws, such as those prohibiting robbery? And which the offense may be harmful to an individual or to society as a whole, but in either case it warrants punishment, such as imprisonment or a fine?

Civil law case

Which law case involves a dispute between two parties (one of whom may be the government itself) over a wide range of matters including contracts, property ownership, divorce, child custody, mergers of multinational companies, and personal and property damage? This type of law consists of both statutes (laws passed by legislatures) and common law (the accumulation of judicial decisions about legal issues).

federal courts of appeals, not federal district courts The decisions of appellate courts are generally more significant than those of lower courts, so the president naturally takes a greater interest in appointing people to these courts. Individual senators are in a weaker position to determine who the nominee will be because the jurisdiction of an appeals court encompasses several states. Although custom and pragmatic politics require that these judgeships be apportioned among the states in a circuit, the president has some discretion in doing this and therefore has a greater role in recruiting appellate judges than in recruiting district court judges. Even here, however, senators of the president's party from the state in which the candidate resides may be able to veto a nomination.

Which type of court the president prefer to elect judges to? How come?

1. the importance of its work and is usually intimately involved in recruiting potential justices 2. Nominations to the Court

Why is the president vitally interested in the Supreme Court? What is the most important legacy to the nation for a pres?

evidence

the available body of facts or information indicating whether a belief or proposition is true or valid.