Unit V: InstitutionsThe Federal Courts

Introduction to Federal Courts

Categories of law• Statutory law

– Laws created by legislation; statutes• Common law

– Accumulation of court precedents• Criminal law

– Government prosecuting law breakers• Civil law

– Dealing with rights of citizens; usually involves suits brought between parties

Introduction to Federal CourtsJudicial Reach (Jurisdiction)• Passive power

– Courts must wait for cases to come before them• Standing

– Plaintiffs must show personal stake/injury– Litigants – Plaintiff (bring charges) and defendant.

• “Stare decisis”– Legal doctrine meaning “The decision stands”– Precedents (force of law) guide bureaucracy & future courts

• Original jurisdiction– First time case is heard; all legal rights pertaining to full trial

• Appellate jurisdiction– Appeals level; panel of judges “review”; no trial

• Participants in the Judicial System (cont.)– Class action suits –

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

Participants in the Judicial System (cont.)Amicus curiae briefs – Legal briefs submitted by a “friend of the court” for the purpose of influencing a court’s decision.

The Nature of the Judicial System

• Participants in the Judicial System (cont.)– Attorneys – About a million attorneys are

practicing in the United States today.– Access to lawyers has become more equal, but that

does not mean that quality of representation is equal.

Structure of the Courts

What does the Constitution say in Article III?• Provides for Supreme Court

• Specifies jurisdiction

• Provides details regarding juries/treason

• No mention of court structure…

Structure of the Courts

In Article I, sec. 8 (delegated powers)…

“Congress shall have the power to constitute tribunals inferior to the Supreme Court.”

(Structure is created by Judiciary Act of 1789)

see Washington Government PDF

How cases reach the Supreme Court•15.2

Sources of full opinions in the Supreme Court, 2010-2011

•15.3

• Federal Judges•Lifetime tenure…(The Federalist No. 78)•Compensation ($267,000 for Chief Justice/ $

255, 300 for the others)•Phases of confirmation…

Selection Process

• Backgrounds of Federal Justices – All justices have been

lawyers.– All but 6 (Marshall,

O’Connor, Thomas, Ginsburg, Sotomayor, and Kagan) have been white males.

– Most age 50s and 60s when they took office, from upper-middle or upper class, and Protestants.

Phases of Confirmation

1. Senatorial courtesy

2. Official Nomination

3. Senate Judiciary Committee hearings (“vetting process”)

4. Full Senate debate & vote

Factors Affecting Confirmation

• President’s current “political capital”

• Make-up of the Senate• Time remaining in a

President’s term• Demographics of candidate• Overall competence• “Paper Trail” which can

reflect ideology• Stance on “stare decisis”

The Politics of Judicial Selection

– Through 2017, there have been 154 nominations to the Supreme Court, and 113 people have served on the Court.

– Presidents have failed 20% of the time to appoint the nominees of their choice to the Court.

The Politics of Judicial Selection

– Nominations are likely to run into trouble if the president(‘s) •party is in the Senate minority•makes a nomination at the end of their terms•views are more distant from the norm in the

Senate •nominee faces competence or ethics questions.

U.S. Supreme Court •15.4

Justices Kagan, Alito, Sotomayor, Gorsuch Ginsburg, Kennedy, Thomas, Roberts, and Breyer

Supreme Court justices•15.4

Antonin Scalia died in 2016 … Neil Gorsuch joined the court in 2017.

October – June: • Court is in Session

Monday – Thursday: • Individual Research • Amicus Curiae Briefs

Friday:• Debate in chambers ( a closed debate)

Court Schedule

Accepting cases•Constitutional Issues•Political “hot potatoes?”•Requests for Supreme Court review (about

8,000 cases … accept less than 100).•Writ of Certiorari – request to get the case

from a lower court. The S.C. wants to review the case and “make it certain.”

•Rule of Four

The Highest Court: U.S. Supreme Court

The Courts as Policymakers

• Making Decisions– Briefs submitted by both sides and amicus curiae

briefs filed.– Oral argument – 1 hour hearing.– Conference – Discuss case, vote, and assign

opinion writing.– Opinions drafted and circulated for comments.– Decision announced.

Obtaining space on the Supreme Court’s docket

15.5

The Courts as Policymakers

• Making Decisions (cont.)– Opinion – Statement of legal reasoning behind a

decision.– Majority opinion – 5 justices.– Dissenting opinions – Justices opposed to

majority decision.– Concurring opinions – Support a majority

decision but stress a different constitutional or legal basis for the judgment.

• Requires simple majority • If it’s a tie it dies• Writing of the “Opinion" (assigned by Chief)

• Majority• Concurring • Dissenting

– On the record to protest the majority – Over 200 times a dissenting opinion has been

used to help overturn a previous opinion

Delivering Opinions

The Courts as Policymakers

• Making Decisions (cont.)– Stare Decisis – Phrase meaning “let the decision

stand.”– Most cases in appellate courts are settled on stare

decisis.– Precedent – How similar cases have been decided

in the past.– Lower courts are expected to follow the precedents

of higher courts in their decision making.

• The opinion gets “remanded” to lower courts• “No Teeth”…enforcement is slow• Supreme Court depends on executive and

legislative branches to carry out their rulings.

Example?Brown v. Board of Education, 1954

“All deliberate speed…”

Judicial Implementation

Selection Process

1. Federal Attorneys (4 yr terms)

a.) Attorney General Jeff Sessions

b.) Solicitor General c.) US attorneys

Understanding the Courts

• The Courts and Democracy– Courts are not very democratic because judges

are not elected and are difficult to remove.– The courts often reflect popular majorities and

preferences.– Groups are likely to use the courts when other

methods fail, which promotes pluralism.

Politics of Judicial Rulings

Judicial Activism Judicial Restraint

The Courts have a responsibility to…

(Brennan reading)

The Courts have a responsibility to…

(What the Founders Intended)

Remember: Activism is in the eye of the loser

A. Any citizen can challenge any law.B. Any tax-paying citizen can challenge

any law.C. Only a person who has a serious

interest in a case can challenge a law.D. Only a lawyer can challenge a law.

Who can challenge a law in an American court?

A. Any citizen can challenge any law.B. Any tax-paying citizen can challenge

any law.C. Only a person who has a serious

interest in a case can challenge a law.D. Only a lawyer can challenge a law.

Who can challenge a law in an American court?

A. The Constitutional CourtsB. The Court of Military AppealsC. The Tax CourtD. The U.S. Supreme Court

Which of the following was actually specified in the U.S. Constitution?

A. The Constitutional CourtsB. The Court of Military AppealsC. The Tax CourtD. The U.S. Supreme Court

Which of the following was actually specified in the U.S. Constitution?

A. competenceB. incomeC. partisanshipD. ideology

Which of the following is NOT one of the different criteria that have been

used for selecting judges and justices to the federal courts.

A. competenceB. incomeC. partisanshipD. ideology

Which of the following is NOT one of the different criteria that have been

used for selecting judges and justices to the federal courts.

A. have been white males.B. have been from the appointing

president’s region of the country.C. share the appointing president’s political

party affiliation.D. share the appointing president’s ideology.

All of the following are true of the backgrounds of federal judges EXCEPT

they typically

A. have been white males.B. have been from the appointing

president’s region of the country.C. share the appointing president’s political

party affiliation.D. share the appointing president’s ideology.

All of the following are true of the backgrounds of federal judges EXCEPT

they typically

Judicial review was established by John Marshall and his associates in

.

A. Marbury v. Madison (1803)B. Schechter Poultry Corporation v. U.S.

(1935)C. U.S. v. Nixon (1974)D. Bush v. Gore (2000)

A. Marbury v. Madison (1803)B. Schechter Poultry Corporation v. U.S.

(1935)C. U.S. v. Nixon (1974)D. Bush v. Gore (2000)

Judicial review was established by John Marshall and his associates in

.

A judicial philosophy in which judges play minimal policymaking roles, leaving

that duty strictly to the legislatures.

A. political questionsB. statutory constructionC. judicial activismD. judicial restraint

A. political questionsB. statutory constructionC. judicial activismD. judicial restraint

A judicial philosophy in which judges play minimal policymaking roles, leaving

that duty strictly to the legislatures.