Name all current justices of the United States Supreme Court
1. Name all current justices of the United States Supreme Court. 2. How is the Judicial branch organized? How many District Courts and how many Courts of Appeals are there? 3. Name two Specialized Courts. 4. How are Federal Justices selected? 5. What is judicial review? What significance does it have in our political system? 6. What is the difference between judicial activism and judicial restraint? Can you draw a parallel to originalists and pragmatists? 7. How does the Supreme Court select cases? 8. Name five of the famous cases decided by the US Supreme Court that created precedents.
The Judicial Branch
Chapter 13
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In this chapter you will:
Consider how the law reflects the American people—and our national culture.
Learn how the judicial system operates.
Examine the courts’ role in American politics.
Explore the inner workings of the Supreme Court.
Reflect on how judges decide cases.
Review landmark judicial cases.
Weigh proposals for reforming the court system.
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Who Are We? A Nation of Laws… and Lawyers Embracing the Law – and Lawsuits
Lawsuits are a near-constant feature of American public life, approaching 100 million legal actions a year.
Most other industrial nations rely more on mediation in noncriminal cases.
In contrast, Americans sue.
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Who Are We? A Nation of Laws… and Lawyers Declining Trust
Traditionally lawyers and courts enjoyed high prestige
Lawyers were democracy’s natural aristocrats and people trusted them
Today law, lawyers and legal system face shrinking reputations
In 2015, the Supreme Court’s approval ratings dipped to their lowest level ever recorded, and have remained low since.
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Who Are We? A Nation of Laws… and Lawyers Courts in American Culture
Images of law as a kind of crusade—for racial justice, environmental protection, or national security—reflect and reinforce images of political idealism.
They alternate between heroism and cynicism.
The Constitution gives the judicial branch the least amount of attention.
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Organizing the Judicial Branch Divided We Rule
The United States exhibits judicial federalism; both federal and state court systems are each further divided into three layers: trial, appellate, and highest appeal.
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Organizing the Judicial Branch State and Local Courts
Lower courts conduct trials, appellate courts hear appeals, and the state supreme court renders a final verdict on the state level.
State courts handle the vast majority of cases.
Although each state’s judiciary system is distinctive, all are divided into three levels: trial courts, appeal courts, and a state supreme court.
A majority of US states elect their judges, some are appointed by governors.
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Judicial Selection
Few formal criteria for being a judge
May not need a law degree
Most states (31) elect judges
Governor selects judges in 17 states
State legislature selects in 2 states
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Organizing the Judicial Branch Federal Courts
Federal courts hear three kinds of cases:
Crimes that violate federal laws
Issues that involve federal treaties
Cases touching on the Constitution
Most federal cases begin in one of the ninety-four district courts, which house just under seven hundred judges.
Above the ninety-four district courts are thirteen federal appellate courts, known as circuit courts.
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Organization of the U.S. Federal Court System
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Federal Circuit Courts
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Organizing the Judicial Branch Specialized Courts
The federal judiciary also includes a set of specialized courts such as military justice, tax disputes, and bankruptcy.
Judges on these courts are appointed by the president and subject to Senate confirmation.
The US military runs its own separate court system, addressing breaches of justice by members of the armed forces.
These courts have been a source of controversy in recent years, after President George W. Bush called for military tribunals to try defendants charged with terrorism against the United States.
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Special Courts in the Federal System
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Organizing the Judicial Branch Diversity in the Federal Judiciary
Do federal judges reflect America’s population? No.
Just above one-quarter of judges are women, and more than 80% are white.
11% of federal judges are African American (compared to 12.2% of the population).
7% are Hispanic (compared to 16.3%).
Only 1% are Asian American (compared to 4.7%).
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The Court’s Role Judicial Review
In Marbury v. Madison, Chief Justice John Marshall asserted that the Supreme Court has the authority to overrule any act of Congress that violates the Constitution and to interpret what the Constitution means.
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The Court’s Role Activism Versus Restraint
Judicial activism is vigorously or actively overruling the other branches of government when they have arguably overstepped their constitutional boundaries.
Judicial restraint holds, on the contrary, that the courts should overrule the elected branches of government reluctantly and as a last resort.
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The Court’s Role The Judicial Process
American courts handle two different kinds of cases.
Civil law handles disputes between two parties.
Criminal law involves cases in which someone is charged with breaking the law.
The American colonists introduced the English system known as common law.
Each time a court settles a case, it sets a precedent that will guide similar cases in the future.
Civil law handles cases between two parties.
Criminal law involves cases where someone is charged with doing something prohibited by the government.
The party who complains is called the plaintiff; the party sued is the defendant.
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The Court’s Role Too Much Power?
Should nine unelected, lifetime Supreme Court appointees and more than 100 circuit- and district-court federal judges wield this much power?
Litigious society and the range of judicial authority give the courts the power to shape American policy.
American courts profoundly shape American politics.
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The Court’s Role Or Still the “Least Dangerous” Branch
No Electoral Base
Prestige and mystique are balanced by lack of democratic authority
Limited Resources
Two or three clerks per federal judge
Small budgets
Reactive Decision Makers
Cases must come to them
Do not define the problem or shape the question in dispute
No Enforcement Method
Court rules but other actors implement the decision
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The Supreme Court Hearing Cases
Supreme Court is in session for approximately nine months each year, opening the first Monday in October
Justices out of view except when hearing oral arguments
No jury and no witnesses
Counsel presents to the justices: given thirty minutes
Written briefs submitted spelling out the details of their argument
Amicus curiae (friend of the court) briefs also submitted
Brief submitted by a person or a group that is not a direct party to the case
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The Supreme Court Selecting Cases: Formal
Losing parties in lower courts are permitted to file a petition with the Supreme Court
State the facts of the case
Argument why Court should hear the case
Justices meet to choose the cases they will hear
Four judges have to vote to hear a case (The Rule of Four)
Writ of certiorari issued when justices agree to hear a case
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The Supreme Court Formal Conditions to Hear a Case
Legitimate Controversy
Actual dispute between two parties
No hypothetical or advisory opinions
Standing
Actual harm or imminent harm
Moot
Court’s proceedings will affect the issue at hand
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The Supreme Court Selecting Cases: Informal Factors
More inclined to hear a case when two lower courts decide the legal question differently
Lower court decision conflicts with an existing Supreme Court ruling
Case has significance beyond the two parties involved
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Judicial Decision Making and Reform
The role of law
First, we should pay attention to justice’s view: they follow precedent and the facts of the case. This is known as stare decisis.
Ideology and partisanship
Political scientists are more likely to find that ideology is the best predictor in the long run.
Recently, the public has also taken this view.
An institution designed to be above politics is increasingly seen as essentially political.
Collegiality and peer pressure
Collegiality, or more bluntly peer pressure, is a third factor that shapes decisions.
Institutional concerns
Justices sometimes appear to think about the interests of the Court as an institution.
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The Supreme Court and How It Operates Conference Sessions and Written Decisions
The chief justice assigns the job of writing the majority opinion in each decided case.
A concurring opinion offers a justice’s independent reasons for voting in favor of the majority outcome.
Justices who disagree about the outcome write a dissenting opinion explaining why they voted against the majority.
Only the majority opinion has the binding power of law.
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The Supreme Court and How It Operates Supreme Court Clerks
These clerks exercise great influence by helping the justices write opinions and reach decisions, as well as performing initial screening of the thousands of certiorari petitions that reach the Court each year.
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The Supreme Court and How It Operates Confirmation Battles
Confirmation hearings have become partisan debates—all designed to influence the Senate Judiciary Committee that holds hearings on a nominee and which issues a recommendation to the full Senate.
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Judicial Decision Making and Reform The Role of Law
Justices read the law, consider the intent of those who framed the law, and place the case in the context of the Constitution.
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Judicial Decision Making and Reform Ideology and Partisanship
The justices’ beliefs are the most powerful predictor of how they will vote, especially on difficult cases.
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Judicial Decision Making and Reform Collegiality and Peer Pressure
Justices spend a lot of time together, hearing cases and discussing their decisions; they exert influence on one another.
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Judicial Decision Making and Reform Institutional Concerns
Justices are aware of the outside forces that might affect the standing of the Court—public opinion, a hostile Congress, or a skeptical executive.
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Nineteen Cases You Should Know
Marbury v. Madison
Judicial review
Power of courts
McCullough v. Maryland
Necessary and Proper Clause
Federal law trumps state law
Dartmouth College v. Woodward
Contract definitions
Property rights
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Nineteen Cases You Should Know (cont.)
Dred Scott v. Sandford
Standing
Lack of equal protection for blacks
Santa Clara Co. v. Southern Pacific
Role of corporations
Corporations defined as persons
Plessy v. Ferguson
Narrow definition of Fourteenth Amendment
Separate but equal doctrine
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Nineteen Cases You Should Know (cont.)
Lochner v. New York
Workers’ rights
Focus on economic individualism
Muller v. Oregon
Women’s rights
Labor rights
Schenck v. United States
National security
Clear and present danger test: Court doctrine that permits restrictions of free speech if officials believe that the speech will lead to prohibited action like violence or terrorism
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Nineteen Cases You Should Know (cont.)
Lochner v. New York
Workers’ rights
Focus on economic individualism
Muller v. Oregon
Women’s rights
Labor rights
Schenck v. United States
National security
Clear and present danger test: Court doctrine that permits restrictions of free speech if officials believe that the speech will lead to prohibited action like violence or terrorism
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Nineteen Cases You Should Know (cont.)
National Labor Relations Board v. Jones and Laughlin Steel
Workers’ rights
Right to unionize
Korematsu v. U.S.
Civil liberties
Strict scrutiny: The tendency to strike down as unconstitutional any legislation that singles out race or ethnicity unless the government has a compelling interest in such legislation
Compelling governmental interest
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Nineteen Cases You Should Know (cont.)
Brown v. Board of Education
Civil rights
Overturn separate but equal policy
Mapp v. Ohio
Civil liberties
Protection against improper search and seizure
Gideon v. Wainwright
Civil liberties
Rights of criminal defendant
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Nineteen Cases You Should Know (cont.)
Lemon v. Kurtzman
Establishment clause and government
Three-pronged test (excessive entanglement, inhibit, secular)
Roe v. Wade
Civil liberties
Right to privacy
U.S. v. Nixon
National security
Boundaries for executive privilege
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Nineteen Cases You Should Know (cont.)
Bush v. Gore
Political question
Freeze voting recount
National Federation of Independent Business v. Sebelius
Health care
Validate health care plan through right to tax
These nineteen cases illustrate the formidable reach of the judiciary in American politics and government.
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Criticizing the Judiciary Critiquing the Judiciary
Four common critiques include:
The high cost of litigation,
Perceived bias,
Judicial power, and
The possibility of corruption.
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Criticizing the Judiciary Ideas for Reform: More Resources
The American judiciary faces a “quiet crisis” in attracting talented judges (too little pay) and state courts stagger under the volume of cases.
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Criticizing the Judiciary Term Limits
Judicial term limits (of 15 or 18 years) would help address the fear of “unelected judges” overruling the elected branches.
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Conclusion: Democracy and the Courts
Courts wield an unusual amount of influence in the United States—far more than courts in most other nations, and perhaps too much in a modern democratic society.
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Supreme Court’s Approval Rating
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Organization of the US Federal Courts System
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People’s View of the Honesty/Ethical Standards of Various Professions
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Justices’ Votes Can Depend on the Speech: Liberal or Conservative
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Supreme Court Nominations and Confirmations
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