Institutions of government part 2

Justice Hugo Black

"Presidents have always appointed people who believe a great deal in the same things that the president who appoints them believe in."

Article III, section 1

"The judges, both of the supreme court and inferior courts, shall hold their offices during good behavior and shall at times, receive for their services a compensation which shall not be diminished during their continuance in office." The presidents' appointment of federal judges, especially U.S. supreme court judges, can affect his legacy given that most appointees keep their positions well beyond the president' time in office. There have been 44 presidents, but only 17 chief justices. As you would expect, the president will appoint nominees who share his/her political philosophies. For example, John Adams, the federalist president appointed John Marshall to chief justice. Marshall was a federalist, and "activist," who presided over the court from 1801-1835 for cases such as Marbury vs. Madison (1803), McCulloch vs. Maryland (1819), and Gibbons vs. Ogden (1824)

Retirement pension for federal judges

- Full salary at age 70 with 10 years experience - Age 65 with 15 years experience

The supreme court may

- Let the lower court decision stand - Remand (or send back case to lower court for reconsideration in light of some recent related case) - Decide "to take the case" - The "rule of four" requires that four justices on the U.S. Supreme court agree to listen to the case. For the U.S. Supreme court to take a case, it will involve an important constitutional principle, a serious concern about federal law, or some significant procedural due process matter. When the U.S. supreme court decides to take a case, the case is put on its schedule or docket. Cases "come from" the highest state courts (involve constitution, federal law), U.S. courts of appeals or court of appeals for the federal circuit, rarely from the U.S. court of appeals for the armed forces, and in special cases from a federal district court.

The Majority opinion

- Presents the views of justices who supported decision - It has the force of law and serves as future precedent - It helps lower courts, judicial officials, and legislatures concerning a standard for what is the current status "of the law" - If majority opinion is unanimous (about 1/3 of the cases) then it sometimes called

Selection process for federal judges

- Screening candidates - Players in the selection process - U.S. Senate approval

U.S. Supreme court

- The united States court is often called alternatively the "high court". "the highest court in the land", or just "the court" - The United States supreme court is the only federal court specifically created by the constitution of 1787 - The U.S. Supreme court currently has had 9 judges (except during vacancies) but has had as few as five (1801-1807) and as many as ten (1863-1866). There is currently a chief (John G. Roberts Jr) and 8 associate justices. During the 1930's Franklin D. Roosevelt tired to "pack the court" by expanding the number of justices to fifteen who would be more sympathetic to his programs. He was unsuccessful. The U.S. congress determines the number of justices on the U.S. supreme court. - According to Article III, section 2, clause 2, the U.S. supreme court possesses both original and appellate jurisdiction. "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state be a party, the supreme court shall have original jurisdiction. In all cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make. - Of the ten or millions of judicial cases in the United States per year, the U.S. supreme court only makes decisions, and writes lengthy opinions on 50-100. Of those, it is unusual for the court to decide on more than one or two per year on an original jurisdiction basis - The chances of a case making it to the U.S. supreme court begins in October and concludes usually in the lat spring or early summer of the following year. The first morning in October

Related interesting facts

- William Douglas served on the U.S. Supreme court for the longest term: 36 years from 1939 to 1975. He was appointed by Franklin Roosevelt and served until the presidency of Gerald R. Ford. - Oliver Wendell Holmes was the justice who was the oldest when serving: 90 years old - Stanley F. Reed (1938-1957) was the U.S. supreme court justice who lived the longest. He died at 95 (retired at 72) - Joseph Story (1812-1945) was the youngest U.S. Supreme court justice at appointment: 32 years old.

Players in the selection process

1. American bar association (ABA) since 1956 the ABA's committee on federal judiciary has ranked all federal judicial appointees from well-qualified to not qualified. George W. Bush solicited the recommendation of the conservative group call the federalist society 2. Other interest groups "weigh in" These groups often promote or attack potential candidates. NAACP (National Association for the Advancement of Colored People); NOW (National Organization for Women); ACLU (American Civil Liberties Union)

Sources of a case

1. Appeal 2. Certificate: lower court asks higher court to clear up a question of law or procedure 3. Writ of certiorari or "cert" either party may petition the court to review the case to make certain the case was appropriately decided at the lower level. The U.S. supreme court will ask for materials from lower court if they decide to take case. Request may be streamlined without usual fees when petition is made in forma pauperis (remember Gideon vs. Wainwright)

Arguments

1. Briefs: (they are not always brief!) written document facts, legal principles, precedents from previous cases, legal arguments advance case 2. Amicus Curaie: "friend of court" brief/parties other than parties directly involved might submit a brief Ex: Roe vs. Wade (1973) Planned parenthood U.S. governemtn often files amicus curaie briefs 3. Oral argument: 30 minutes in front of supreme court

Important supreme court and other federal judicial officials

1. Law clerks: recent law school graduates with academic records from best schools who assist justices with legal issues, etc. conduct research, summarize case, advise justices on what cases to be heard, help draft opinions, etc. 2. Marshals 3. Magistrates 4. Clerk of the court 5. Solicitor general: usually argues case for U.S. government 6. Chief Justice - Presides over court during oral arguments, conferences, etc. - Creates and compiles discus list - Assigns justice to supervise "circuits" - Approves regulations for court buildings and grounds - Administrative leadership of entire federal judicial system - Presides over president's oath of office to Bill Clinton and supervised impeachment trial also - If with majority, decides which justice will write majority opinion

The U.S. supreme court deliberations

1. The conference 2. Discussion 3. The vote (6 justices is a quorum)

U.S. Senate approval

1. The senate judiciary committee recommends to the U.S. senate whether a candidate should be confirmed or denied - Public hearings are often held (especially for U.S. supreme court candidates) which can be continuous - Federal district judge candidates are almost always confirmed, and U.S. supreme court justices fail to make it about 1/5 of the time. "inferior court" appointments have become more difficult during the presidencies of William Jefferson Clinton George W. Bush and Barack Obama 2. Full U.S. Senate approval (requires majority)

Some factors that affect U.S. Supreme court decisions

1. philosophy: judicial activism vs. judicial restraint 2. Stare decisis: precedent, "let the decision stand", respect for previous decisions provides for standards and predictability of the law. 3. Public opinion (and "living, breathing, flexible nature of constitution) Ex: Flag salute cases of 1940's, death penalty-mentally retarted and youth

Senatorial Courtesy

A custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee's state, especially from the senior senator of the president's party from that state.

Position : Pay

Chief justice of the United States supreme court : $260,700 Associate justice of the United States supreme court : $249,300 Federal district court judges : $203,100 U.S. court of Appeals judges : $215,400

Gibbons vs. Ogden (1824)

Gibbons v. Ogden, 22 U.S. 1 (1824),[1] was a landmark decision in which the Supreme Court of the United States held that the power to regulate interstate commerce, granted to Congress by the Commerce Clause of the United States Constitution, encompassed the power to regulate navigation.[2] The case was argued by some of America's most admired and capable attorneys at the time. Exiled Irish patriot Thomas Addis Emmet and Thomas J. Oakley argued for Ogden, while US Attorney General William Wirt and Daniel Webster argued for Gibbons.

How a bill becomes a law

House -->bill is introduced in house --> bills in committee (1. referred to standing committee 2. assigned to subcommittee for study, hearing, revisions, and approval, subcommittee reports to full committee 3. returns to full committee for more hearing and revisions 4. goes to rules committee, which sets conditions for debate and amendments) --> bill on the floor (debated, then passed or defeated, if passed then goes to senate) --> Senate --> bill is introduced in senate --> bills in committee (1. referred to standing committee 2. assigned to subcommittee for study hearings, revisions, and approval, subcommittee report to full committee 3. returns to full committee for more hearings and revisions) --> bill on the floor (debated, then passed or defeated, if passed then goes to house) --> conference committee (conference committee negotiates a compromise version of house and senate bills -->congressional approval (house and senate vote on final version of the bill, if passed, the bill goes to the president --> the bill with the President (the president signs, vetoes, or allows the bill to become law without signing it. Vetoed bills return to congress, where a two-thrids vote of each house can override the veto.

Appointment of federal judges

James Madison had said in the federalist (#51) that because of the special qualifications required of members of the judiciary that they should not be selected by the people: first, because peculiar qualifications being essential in the members, the primary consideration ought to be select that mode of choice which best secures qualifications, secondly because the permanent tenure by which the appointments are held...must soon destroy all sense of dependence on the authority conferring them - So the political structure would appoint judges, because they did not trust the people. - After appointed, this process is a check of judiciary on the executive and the legislature. Once appointed, constitutional court judges serve "during good behavior"

Marbury vs. Madison (1803)

Marbury v. Madison, 5 U.S. 137 (1803), was a landmark United States Supreme Court case in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. The landmark decision helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government. The case resulted from a petition to the Supreme Court by William Marbury, who had been appointed Justice of the Peace in the District of Columbia by President John Adams but whose commission was not subsequently delivered. Marbury petitioned the Supreme Court to force the new Secretary of State, James Madison, to deliver the documents. The Court, with John Marshall as Chief Justice, found firstly that Madison's refusal to deliver the commission was both illegal and correctible. Nonetheless, the Court stopped short of ordering Madison (by writ of mandamus) to hand over Marbury's commission, instead holding that the provision of the Judiciary Act of 1789 that enabled Marbury to bring his claim to the Supreme Court was itself unconstitutional, since it purported to extend the Court's original jurisdiction beyond that which Article III established. The petition was therefore denied.

McCulloch vs. Maryland (1819)

McCulloch v. Maryland, 17 U.S. 316 (1819), was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland. Though the law, by its language, was generally applicable to all banks not chartered in Maryland, the Second Bank of the United States was the only out-of-state bank then existing in Maryland, and the law was recognized in the court's opinion as having specifically targeted the Bank of the United States. The Court invoked the Necessary and Proper Clause of the Constitution, which allowed the Federal government to pass laws not expressly provided for in the Constitution's list of express powers, provided those laws are in useful furtherance of the express powers of Congress under the Constitution. This case established two important principles in constitutional law. First, the Constitution grants to Congress implied powers for implementing the Constitution's express powers, in order to create a functional national government. Second, state action may not impede valid constitutional exercises of power by the Federal government.

Opinions

Per curiam: "by the court" short, unsigned decision Lengthy opinions

Who is on the court today

Sonia Sotomayor: Age when appointed: 55; Appointed by (year): Obama (2009); Previous years as a judge: 17 Stephen G. Breyer: Age when appointed: 55; Appointed by (year): Clinton (1994); Previous years as a judge: 14 Samuel A. Alito: Age when appointed: 55; Appointed by (year): G.W. Bush (2006); Previous years as a judge: 16 Elena Kagan: Age when appointed: 50; Appointed by (year): Obama (2010); Previous years as a judge: 0 Clarence Thomas: Age when appointed: 43; Appointed by (year): G.H.W. Bush (1991); Previous years as a judge: 2 Antonin Scalia: Age when appointed: 50; Appointed by (year): Reagan (1986); Previous years as a judge: 4 Chief Justice John G. Roberts: Age when appointed: 50; Appointed by (year): G.W. Bush (2005); Previous years as a judge: 2 Anthony M. Kennedy: Age when appointed: 51; Appointed by (year): Reagan (1988); Previous years as a judge: 13 Ruth Bader Ginsburg: Age when appointed: 60; Appointed by (year): Clinton (1993); Previous years as a judge: 13

Actions of the court

The U.S. Supreme court members are always considering the possibility of "taking a case". Possible cases are compiled on the chief justice's "discuss list"

The unanimous Opinion

The concurring opinion: presents the views of the justices who voted with the majority but want to emphasize other points, or give differing reasons for their votes The dissenting opinion: one or more justices may write an opinion explaining why they voted against majority. The dissenting opinion has no force of law. We have studied a number of cases where the views expressed in the dissenting opinion became the foundation for majority opinion in later years and cases (Example: John M. Harlan in Plessy vs. Ferguson (1896)/ Brown vs. Board of Education (1954)). Chief justice Charles Evan Hughes (1930-1941) on dissenting opinions: "An appeal to the brooding spirit of the law, to the intelligence of a future day."

Screening candidates

The president consults with his advisors, especially the Attorney general (head of justice department) prepare a list of possible candidates for potential or actual constitutional judicial vacancies. The list may include judges in federal district courts appeals court judges, law professors, state justices, and outstanding lawyers in private sector or government agencies. The FBI, depending on the vacancy, will often conduct a background check for any "skeletons" in the closets of potential candidates. This has been especially true since the 1980's associated with the possible nomination of a U.S. supreme court candidate.

Article II, section 2, clause 2

gives the president the power to "nominate and, by and with the consent of the senate, ..., judges of the supreme court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law; but the congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in the courts of law, or in the heads of departments" So the officers (judges of the constitutional courts) serve for life, or until they resign or are removed by impeachment and removal.