Chapter 10 The Judiciary Pearson Education, Inc. © 2006 American Government 2006 Edition (to accompany Comprehensive, Alternate, Texas, and Essentials Editions) O’Connor and Sabato
Dec 11, 2015
Chapter 10
The Judiciary
Pearson Education, Inc. © 2006
American Government2006 Edition(to accompany Comprehensive, Alternate, Texas, and Essentials Editions)
O’Connor and Sabato
Pearson Education, Inc. © 2006
The Constitution and the Creation of the Federal Judiciary
Framers devoted little time to the creation of the judiciary. Believed it posed little of the threat of tyranny
they feared from the other two branches. Anti-federalists did see the judiciary as a threat.
Framers left it to Congress to design the federal judiciary system below the Supreme Court. Judiciary Act of 1789 did so.
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Article III
Did not settle the question of judicial review Not explicitly stated in the Constitution Allows the judiciary to review the
constitutionality of acts of the other branches of government and the states Judicial review settled with Marbury v.
Madison (1803) for national government’s acts and Martin v. Hunter’s Lessee (1816) regarding state law
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MARBURY v. MADISON (1803) Marbury given judgeship by Federalists. Jefferson as
new Pres (anti-fed) told Secy Madison to not deliver the commissions.
Marbury sues under Jud. Act of 1789 which gave the Court power of mandamus, could require Madison to deliver the commission
CJ Marshall hated Jefferson but doesn’t want to weaken Court’s position
CJ Marshall declares that small portion of Jud. Act expanding original jurisdiction of S.Ct. as unconstitutional; sorry Marbury, Court can’t help you
Establishes new power for judiciary: judicial review; strengthens judiciary as 3rd and co-equal branch
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The Judicial Power of the United States Supreme CourtThe following are the types of cases the Supreme Court was given the jurisdiction to hear as initially specified in the Constitution, Article III:
• All cases arising under the Constitution and laws or treaties of the United States
• All cases of admiralty or maritime jurisdiction
• All cases affecting ambassadors or other public ministers
• Cases in which the United States is a party
• Controversies between a state and citizens of another state
• Controversies between two or more states
• Controversies between citizens of different states
• Controversies between citizens of the same states claiming lands under grants in different states
• Controversies between a state, or the citizens thereof, and foreign states or citizens thereof
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Article III Section I gave Congress the authority to
establish other courts as it saw fit. Section II specifies the judicial power of the
Supreme Court and discusses the Court’s original and appellate jurisdiction. Also specifies that all federal crimes, except
those involving impeachment, shall be tried by jury in the state in which the crime was committed.
Section III defines treason, and mandates that at least two witnesses to the overt act appear in such cases or the defendant confess in open court.
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Article III Framers gave federal judges tenure for life “with good
behavior.” Did not want judges to be subject to the whims of politics,
the public, or politicians Hamilton argued in Federalist 78 that the “independence of
judges” was needed “to guard the Constitution and the rights of individuals.”
Some checks on judiciary include: Congress has the authority to alter the Court’s jurisdiction. Congress can propose constitutional amendments that, if
ratified, can effectively reverse judicial decisions. Congress can impeach and remove federal judges. President (with advise and consent of Senate) appoints
federal judges. President refuse to enforce Ct decision – ex. Jackson
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Texas Judicial Qualifications and Personal Characteristics
More than 3,100 judges in Texas Except for municipal judges all are
selected in partisan elections Texas Constitution establishes the
qualifications for most judges These vary by judicial office Variation in terms of education and
training Personal characteristics are similar
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Texas Judicial Qualifications
Terms: 2-6 yrs Above JP need
Age Atty license Experience
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The Judiciary Act of 1789 and the Creation of the Federal Judicial System
Established the basic three-tiered structure of the federal court system District courts: at least one in each state, each
staffed by a federal judge. Circuit Court: avenue for appeal.
Each circuit court initially composed of one district court judge and two itinerant Supreme Court Justices who met as a circuit court twice a year
Supreme Court size set in the Act – chief justice and five associates Number of justices set to 9 in 1869.
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The Early Court
First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up.
Later, the court decided only one major case.
Relatively lowly status One associate judge left to become chief
justice of a state supreme court.
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The Early Court First decade, Court not co-equal but it did
assert itself. Declined to give President Washington advice on
the legality of some of his actions Attempted to establish the Court as an
independent, nonpolitical branch Does not hear hypothetical cases; only
actual cases of controversy Tried to advance principles of nationalism and to
maintain the national government’s supremacy over the states
Began to pave the way for announcement of the doctrine of judicial review
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The US Legal System Trial courts
Courts of original jurisdiction where a case begins Appellate courts
Courts that generally review only findings of law made by lower courts
*Jurisdiction Authority vested in a particular court to hear and
decide the issues in any particular case Original jurisdiction: The jurisdiction of courts that
hears a case first, usually in a trial. Courts determine the facts of a case under their original jurisdiction.
Appellate jurisdiction: The power vested in an appellate court to review and/or revise the decision of a lower court.
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The American Legal System Criminal law
Codes of behavior established by society related to the protection of property and individual safety
Civil law Codes of behavior related to business and
contractual relationships between groups and individuals
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The Federal Court System Constitutional courts
Federal courts specifically created by the U.S. Constitution or Congress pursuant to its authority in Article III
Legislative courts Courts established by Congress for specialized
purposes, Ex.: Court of Military Appeals, US Tax Cts, Ct of
Internat’l Trade, Ct of App for Vet Claims, territorial cts Judges have term limits
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The Federal Court System
District Courts 94 federal district courts staffed by 646
active judges, assisted by more than 300 retired judges
No district courts cross state lines. Every state has at least one federal
district court. The most populous states have four (CA,
TX, and NY). Texas – 5th circuit, Southern district
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Original Jurisdiction of Federal District Courts
Involve the federal government as a party Present a federal question based on a claim
under the U.S. Constitution, a treaty with another nation, or a federal statute
Involve civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000
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District Courts Each federal judicial district has a U.S.
attorney. Nominated by the president and
confirmed by the Senate. Becomes district’s chief law enforcement
officer (prosecutor) considerable amount of discretion as to
whether they pursue criminal or civil investigations or file charges against individuals or corporations.
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The Courts of Appeals The losing party in a case heard and decided in a federal
district court can appeal the decision to the appropriate court of appeals.
11 numbered circuit courts Twelfth, D.C. Court of Appeals
Handles most appeals involving federal regulatory commissions and agencies
Thirteenth, U.S. Court of Appeals for the Federal Circuit Deals with patents and contract and financial claims against
the federal government Have no original jurisdiction Try to correct errors of law and procedure that have
occurred in the lower courts or administrative agencies Hear no new testimony.
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The Federal Court System
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The Supreme Court Decisions of the court of appeals are
binding on only the district courts within the geographic confines of the circuit.
Decisions of the Supreme Court are binding throughout the nation and establish national precedents. Reliance on past decisions or precedents to
formulate decisions in new cases is called “stare decisis.”
Allows for continuity and predictability
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How Federal Court Judges Are Selected
Often a very political process Judges nominated by president and
confirmed by Senate Can reflect the ideological stamp of the
president Senatorial Courtesy
A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs.
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Characteristics of District Court Appointees from Carter to Bush
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Who Are Federal Judges?
Typically they have held other political offices. State court judge or prosecutor Most have been involved in politics White males tend to dominate
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Appointments to the U.S. Supreme Court
Nomination Criteria Competence Ideology or Policy Preference
Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer’s original intentions.
Pursuit of Political Support from Various Groups
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The Supreme Court, 2004
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The Supreme Court Confirmation Process
Investigation Lobbying by Interest Groups Senate Committee Hearings Senate Vote
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Interest Groups
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The Structure of the Texas Judiciary
The Supreme Courts Texas Supreme Court
Court of last resort in civil and juvenile cases Texas Court of Criminal Appeals
Court of last resort in criminal cases Petition for review
Request for Texas Supreme Court review, which is granted if four justices agree
Applications for discretionary review Request for Texas Court of Criminal Appeals
review, which is granted if four judges agree
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The Supreme Court Today: Deciding to Hear a Case
9,000 cases were filed at the Supreme Court in its 2003-2004 term. Not always the norm 1940s fewer than 1000 cases filed annually During the 2003-2004 term, 90 cases were
argued and 73 signed petitions were issued. Modern period, many of the cases have involved
Bill of Rights issues
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Supreme Court Caseload, 1950-2004 Terms
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Supreme Court Today Court has two types of jurisdiction
Original Appellate
Rule of Four Court controls its caseload through the writ of certiorari
process. All petitions for certiorari must meet two criteria:
The case must come either from a U.S. court of appeals, a special three-judge district court, or a state court of last resort.
Case must involve a federal question. This means that the case must present questions of interpretation of federal constitutional law or involve a federal statute, action or treaty.
Cert pool Discuss list Cert granted when at least four justices vote to hear a case
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Supreme Court Cases
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What Do Supreme Court Clerks Do?
Supreme Court clerks are among the best and brightest recent law school graduates. Almost all first clerks for a judge on one of the courts of appeals. After their Supreme Court clerkship, former clerks are in high demand. Firms often pay signing bonuses of up to $80,000 to attract clerks, who often earn over $130,000 their first year in private practice.
Tasks of a Supreme Court clerk including the following:• Perform initial screening of the 9,000 or so petitions that come to the Court
each term• Draft memos to summarize the facts and issues in each case, recommending
whether the case should be accepted by the Court for full review• Write a “bench memo” summarizing an accepted case and suggesting
questions for oral argument• Write the first draft of an opinion• Be an informal conduit for communicating and negotiating between other
justices’ chambers as to the final wording of an opinion
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How Does a Case Survive the Process? Characteristics of the cases the Court accepts:
The federal government is the party asking for review. Solicitor General
The case involves conflict among circuit courts. The case presents a civil rights or civil liberties
question. The case involves ideological and/or policy
preferences of the justices. The case has significant social or political interest, as
evidenced by the presence of interest group amicus curiae briefs.
Refusals: political question or too emotionally controversial and little precedent
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Table 10.7
Amicus Curiae Briefs in an Affirmative Action case: Grutter v. Bolinger and Gratz v. Bolinger (2003)
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Hearing and Deciding a Case
Oral arguments – 30 minutes @ side
The conference and the vote, majority 5-4 to 9-0
The opinion Majority – force of law Concurring – agrees with decision but
for different reasons Dissenting
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Judicial Philosophy and Decision Making
Judicial restraint: A philosophy of judicial decision making that
argues courts should allow the decisions of other branches of government to stand, even when they offend a judge’s own sense of principles.
Judicial activism: A philosophy of judicial decision making that
argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty.
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Models of Judicial Decision Making
Behavior characteristics Social background
Attitudinal modelStrategic ModelPublic opinion
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The Supreme Court and the American Public
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Judicial Policy Making and Implementation
Policy making: More than 100 federal laws declared
unconstitutional. Ability to overrule itself
Judicial Implementation: Refers to how and whether judicial decisions
are translated into actual public policies affecting more than the immediate parties to a lawsuit.
Dependent upon executive branch
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Judicial Policy Making and Implementation (cont)
Judicial remedies: court ordered solutions to cases
ex. Busing and prison overcrowding cases, redrawing Texas congressional districts
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Table 10.5
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Current Court
CJ – John Roberts Newest justice – Sam Alito
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Criticisms of the Texas Judicial Branch
Reforming Campaign Finance High cost of judicial campaigns Judicial Campaign Fairness Act in 1995
Act limits contributions to judicial candidates, depending on the office
Several loopholes in the act No requirement that a judge who has
received a large contribution from a lawyer or party to a suit before the court recuse him/herself from the case
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Criticisms of the Texas Judicial Branch
Increasing Minority Representation on the Bench Why so few minorities on the bench in
Texas? High cost of judicial campaigns Racially polarized voting in statewide and
countywide elections Small numbers of Hispanics and African
Americans who are licensed attorneys
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Criticisms of the Texas Judicial Branch
Reforming the Court Structure Overlapping jurisdiction Allows an attorney to “shop” for justice Various suggestions for reform including merger
of the two supreme courts Reforming Judicial Selection
Recommendations have been made that Texas adopt a merit system for selecting judges
Other reforms suggested but no movement on compromise given the varied interests in judicial selection
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Misc Texas has an automatic appeal on all death
penalty cases The Warren Court was the most liberal ct,
with the Burger Ct next Texas ‘ Atty Gen gives advisory opinions on
hypothetical situations, (ex What if a school refuses to give the TAKS test?). These advisory opinions have the force of law until challenged in an actual case.