UNIT 9

THE JUDICIARY

Judicial review and its significance to our democracy

Judicial Review - the power of the courts to determine the constitutionality of laws and government actions.

·        Without this power nothing could prevent the state or national government from passing unconstitutional laws and infringing on our rights. The implied power is not specifically mentioned in the constitution. - it was established by John Marshall, our 3^rd chief justice in Marbury v. Madison in 1803

·        Must “have standing” to file such a lawsuit:

§         Must have sustained an injury or are in immediate danger of an injury

·        loss of money

·        loss of property

·        loss of freedom or rights

§         Injuries or harm must be substantial.

·        If you do not “have standing” case is thrown out.

The passive nature of the judiciary and the implications

Even though the courts may hear of something illegal or unconstitutional that is going, on they are powerless to intervene until someone with standing comes forward and files a lawsuit.  Result: If no lawsuit is filed, the illegal or unconstitutional action/law continues indefinitely—perhaps for years.  This is one of the weaknesses of our court system.

The structure and operation of the federal Court system and how a case works its way up the system to the U. S. Supreme court.

6-7,000 cases appealed annually—accepts less than 200

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50,000 cases appealed annually—accept less than 1/2

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      250,000+ cases each year

                                                                            10 million+ cases

·        State Courts handle many more cases and have their own systems. -- 10 million + cases per year.

·        The federal Court system has 3 major levels starting on the bottom, they are:

1.      District Courts

2.      Courts of appeals

3.      United States Supreme Court

District Court

·        The vast majority of cases begin in district courts. Our nation has ninety-five districts.

·        They handle 200,000 + cases a year.

·         They are courts of original jurisdiction: courts where the case starts & which have the authority to hear the case first. The district court is presided over by a single judge. Jury trials occur at this level.  This is primary federal court of original jurisdiction. (That means most federal cases begin in the district courts.)

Court of Appeals

·        The United States has twelve circuits with a Court of Appeals in each circuit.

·        If you lose in the district court, you appeal to the courts of appeals..  Your case is only reviewed and no new trial occurs.

·         A panel of three judges decides whether the district court decided correctly (they uphold or affirm the decision) or if the district court ruled incorrectly (they then reverse or overturn the decision). These courts hear about twenty thousand appeals a year.

·        They only have appellate jurisdiction.  -- the power to hear & decide cases on appeal from a lower court. A case never begins in the Courts of Appeals

U.S. Supreme Court

·        The Supreme Court has nine justices. (Size of Supreme Court is set by Congress -- it has been as small as 5 and as large as 10.  Its been 9 since1869.) 

·        This is your last shot of appeal, the highest court of the land.  It has both Appellate and Original Jurisdiction.

·        Some come from appeals and others originate there. (Ex foreign diplomats or problems between the states.)

·         It receives 6-7,000 requests to review cases annually in the form of petitions. They accept only 2-3 % of these. Will only hear around 100 to 150 cases.

·         They decide what to accept by following the rule of four. Four of the nine justices must vote for hearing the case. (Four yes votes.)

·         Then they issue a Writ of certiorari- a court order from the Supreme Court ordering the lower court to send up the records of the case so that they can review it.

·        Criteria for your case to be accepted on appeal (What the S. Court looks for):

o       A Constitutional issue.

o       Conflicting Lower court opinions.

o       Supreme Court disagrees with the lower courts decision

·        Can reject the case because it’s a policy issue. (That is an issue best left to the other two branches -- executive & legislature -- for settlement.)   

  ·        When the Supreme Court accepts your case:

1.   Justices will research your case with their law clerks. Most important rule they follow: Stare decisions - —“let the (previous) decision stand” --base today’s decision on the previous decisions when reviewing cases. -- follow precedent

2.   Oral Arguments - your lawyer actually appears before the Supreme Court. Each case only receives an hour. Each lawyer (from opposing sides) gets 1/2 hour.

3.    Conference - meeting of the nine justices only with no outsiders allowed. - In conference, they:

b.      Review petitions for new cases coming in they might want to hear in the future.

c.      Discussion Vote: discuss the previously heard cases from the week-Chief justice has opening words discussion proceeds and then in order of seniority of the justices.

d.      Then there is a vote in reverse order, with newest justice being first and chief justice voting ease. 

e.      Opinions: assignment and writing of opinions. Tell why they ruled the way they did and explain how they decided that.

Three Possible Opinions:

·                    Majority Opinion - written by the winning side. This opinion explains to the nation how & why the U.S. Supreme Court ruled on the case.  This opinion sets guidelines our rules that the lower courts must then follow. 

·                    Minority/Dissenting Opinion - written by the losing side and it explains how they feel the case should have been decided.  They criticize the majority opinion and explain how they believe the case should have been decided.  They are hoping that in the future the dissenting opinion will become the majority opinion. As in Plessy vs. Ferguson - minority opinion became the majority opinion in  Brown vs. Board of Education.

·                    Concurring opinion -The justices who voted in the winning side but have different reasons for doing so thus they write a separate opinion explaining those different reasons -- the concurring opinion. There could be in theory several concurring opinions. 

4. Implementation -.

(Explain what factors influence the implementation of that Supreme Court decision. )

·        The United States Supreme Court has no power to enforce their own decision.  They rely on five other groups:

1.   remand to the lower courts - for district judge to follow guidelines & carry out the decision

2.   President, as chief executive, can order action. - issue executive orders, make national comments urging compliance, send in federal troops to enforce & (a last resort)

3.   Congress - Can establish criminal penalties for any violation of the new decision or can offer or deny appropriations for those in a position to violate or follow it. - The “carrot and the stick” approach                                                           

4.   Bureaucracy can cut off federal funds. - This was effective in getting public schools to integrate - example: E.C.I.S.D.

5.   Public - to a great extent the Supreme Court relies on voluntary public compliance. We are taught to obey the law. And the United States Constitution is the supreme law of the land. 

Federal Judge Selection Process

·                Supreme Court Justices all lower court federal judges are appointed by the President

·                must be approved by Senate.  -- by a majority vote

·                20% of the nominations to the Supreme Court have failed. 

·                Appointment is for life

·                WHY?

o        to place them above popular influence and not be influenced by politics and public opinion

·                WHY appointed & not elected?—So that they will not be tempted to hand down politically popular decisions, but decisions that are legally and constitutionally correct.

Criteria for appointment to a federal judgeship:

1.   Party Loyalty - someone who shares your philosophy. 90% of all judges appointed are of the same political party as the president.

2.   Political Philosophy (Liberal or, Conservative, or moderate) B they generally share the president’s philosophy

3.   Judicial Philosophy (Two theories of the role of the courts)

A.            Judicial Activism

·        1.            Interpret constitution broadly and flexibly

·        2.            which cases to accept - Accept any cases with issues were ignored by the other two branches.

·        3.            Interpretation - occasionally you must reinterpret to adapt the constitution to changing times and society.

·        4.            Use their power to further social and economic justice.

B.            Judicial Restraint

·        1.            Interpret constitution literally and narrowly (strict)

·        2.            which cases to accept: avoid policy questions, and leave those issues to the other two branches. (Example: abortion)

·        3.            Interpretation - follow precedent and Stare Decisus and try to figure out the framer=s intent.

·        4.            Keep your personal biases out of opinions and follow the framer’s intent.

4.      Legal experience, skills, knowledge,

5.      other political considerations - to help gain re-election

·        Race

·        Sex

·        Religion

·        Geography

·        Age

Profile of a United States Supreme Court Justice

White

British Descent

Protestant

Upper Middle Class or Wealthy

Politically Experienced

·        Only two women have ever been appointed (Sandra D. O’Connor and Ruth Bader Ginsberg—both still on the Court)

·        Only two blacks have ever been appointed (Thurgood Marshall—in 1967 and Clarence Thomas—who is still on the Court)

Senatorial Courtesy - Is an unwritten rule followed in the Senate, which applies only when the President is appointing federal district Judges. He must get the prior approval of the United States Senator of the president’s party in the state where he is making the appointment. If the president ignores this, the United States Senator can simply say on the Senate floor: “This nominee is personally obnoxious to me” and the Senate rejects the nominee this gives Senators the power to block the appointment of someone they dislike, regardless of qualifications.

Influence of United States Supreme Court in the United States History

I Marshall Era

• _    Named after our third chief justice John Marshall from 1801 - 1835

• _    Power of Judicial Review Was Established in Marbury vs. Madison in * 1803. And set the precedent in his brilliant opinion so persuasively that he makes the judicial branch the umpire of the entire governmental system.- and perhaps the most powerful branch

• _    Marshall through his opinion, in McCullock vs. Maryland, established that the national government, specifically Congress, has implied powers. This strengthened & expanded the powers of the national government.

II. Conservative Laizze Faire (Hands off) 1885-1937

• _    Legalized Segregation - Plessy Vs. Ferguson.* " Aseparate but equal" rule

• _    Weakened Worker protection laws.

• _    Weakened Business Regulations- monopolies flourished

• _    Progressive income tax was declared unconstitutional. Progressive tax taxes you more (higher rates) for the higher income.  - wealthy weren't paying their fair share

• Together these four things created injustice, and unfair treatment of workers, consumers, small businesses blacks and society.

III. Warren Court (1953-69)

• _    Ended legal segregation (Brown vs. Board of Education)*

• _    Ended organized school prayer in public schools. (Based on the establishment clause. In 1^st Amendment)

• _    Established the right to privacy. Unmentioned right in the constitution.

• _    Established the one-person one vote rule, which ended one type of Gerrymandering, the drawing of unequal, unfair district lines.

• _    Expanded the rights of the accused

1. _    Miranda; Miranda vs. Arizona & a suspect must be read their rights before interrogations otherwise statements are inadmissable

2. _    Exclusionary rule expanded- illegally seized evidence cannot be used in court

3. _    Poor defendant must be provided with a court appointed attorney. (Gideon) case

First amendment rights protects the right to march for any group, no matter how disliked or radical, so long as they were peaceful, had the right to marc

Weakened the definition of pornography. Protected artistic freedom, but allowed more and more explicit materials to be sold.

IV Burger Court (1969-86)
Nixon appointed 4 of the nine justices. - Changes from Warren Court decisions:

•    Expanded the right of privacy to include abortion (Roe vs. Wade)

• .  Expanded civil rights to include busing, affirmative action, & sex discrimination.

•    But weakened the rights of the accused by narrowing the Miranda decision and exclusionary rule, but supported the death penalty.

•    Created local standards in deciding what is pornographic.

V Rhenquist Court 1986 - present

• _    States can place reasonable restrictions on abortion. (Webster decision)
  Parental notification, restrictions, etc.

• _    Restricted busing to integrate schools and use of affirmative action.

• _    Made job discrimination harder to prove.

• _    Narrowed Miranda and exclusionary rule. Narrowing the rights of the accused.

• _    Most unexpected decision handed down Flag burning was protected symbolic speech. A Liberal decision. Considered the first conservative majority on the Supreme Court since the 1930's - in 60 years.

•  -    Expanded right to privacy to include consensual deviant sexual behavior between consenting adults (thus ruling sodomy laws unconstitutional)

Discuss and evaluate the checks on the Supreme Court.  Who controls the courts?

Checks on the courts:

1.  President:

• _    President appoints all federal judges. 

• _    Issues Executive Orders to carry out Supreme Court decisions or not back up the Supreme Court.

• _    Public Statements 

2.  Congress:

• _    Senate has the power to approve all judicial nominees

• _    Can remove them by impeachment. One or two United States Supreme Court justices impeached by the House but not convicted by the Senate. 1-12 kicked from lower courts.

• _    Pass an amendment to the constitution. -- to overturn a Supreme Court decision

• _    Cut appropriations to Supreme Court.

• _    Congress can set the meeting times. ( currently: 9 month session first Monday in October so Congress can limit time in session

• _    Change the size of the court, and remove a seat (only when a seat is vacant). Or expand it. 

• _    Alter the appellate jurisdiction & prevent certain issues from being appealed the United States Supreme Court.

3.  Public:

• _    Case has to be brought by the public to the courts before the courts can rule on an issue the passive nature to the courts. 

• _    Lack enforcement power.  Must rely on lower courts, the President, and Congress, bureaucracy, and the public.

• _    Supreme Court relies on voluntary public compliance to their decisions.