Chapter 14
Dec 27, 2015
Chapter 14
Judicial Policymaking Judges confront conflicting values in cases
before them
Some courts, such as the Supreme Court, make fundamental policy decisions Decisions become precedent for
similar cases
Court decisions can, therefore, undo work of elected majorities
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National Judicial Supremacy
Supreme Court--- only court defined by Article III, Section 1 of the Constitution Congress given power to create national
court system
Judiciary Act of 1789 created system of federal courts separate from state courts In early years of Republic, not particularly
powerful3
Chief Justice John Marshall
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Judicial Review of the Other Branches
Constitution does not speak to question of “who should prevail?” in conflict between different branches of government
In Marbury v. Madison (1803), Supreme Court established power of judicial review Ruled that act of Congress authorizing
Supreme Court to issue orders against government officials unconstitutional
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Judicial Review of State Government
In 1796, Supreme Court ruled that a Virginia law canceling a debt to a British creditor violated U.S. Constitution's Supremacy Clause Virginia law therefore nullified
National supremacy requires Supreme Court to impose uniformity of national laws
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The Exercise of Judicial Review
The components of judicial review: Federal courts can declare national,
state, and local laws unconstitutional
National laws or treaties supreme when conflict with state or local laws
Supreme Court final authority on meaning of Constitution
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The Exercise of Judicial Review
Is judicial review undemocratic since federal judges appointed? Federalist No. 78 saw judicial review as
barrier to legislative oppression Constitutional amendments and
impeachment means to correct judicial errors
However, this power does mean judges can operate counter to majoritarian rule
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The Organization of Courts
U.S. has complex court system
Individuals fall under jurisdiction of both national and state courts Litigants file nearly all (99%) of cases
in state courts Volume of state cases increases
about 1% a year, mostly contract disputes
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Figure 14.1
The Federal and State Court Systems, 2008-2009
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Some Court Fundamentals
The government prosecutes criminal cases, or violations of penal code
Some crimes common to all states, others specific to individual state or a few states Maintaining public order largely a state or
local function Federal criminal cases related to activities
that fall under powers of national government
Civil cases involve disputed claims to something of value
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Procedures and Policymaking
Most cases never go to trial Prosecutors may plea bargain Parties to a civil case may settle or one
may abandon efforts
Cases that go to court end in an adjudication Written reasons supporting a judicial
decision called opinions12
Judicial Policymaking Judges make policy two ways:
Rulings where no legislation exists make common, or judge-made law
Judicial interpretations of legislative acts called statutory construction
With or without legislation, judges look to relevant opinions of higher courts to guide them
13
The Federal Court System
Organized in three tiers, as a pyramid Litigation starts with U.S. District
Courts Appeals then go to the U.S. Courts of
Appeals Final tier is Supreme Court
Courts of Appeals and Supreme Court generally review only cases already decided in lower courts
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The Federal Court System
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The U.S. District Courts
Each state has at least one federal district court A total of 94 federal district courts Entry point for federal court system U.S. magistrate judges assist
district judges but lack independent judicial authority
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Sources of Litigation Federal criminal cases
Civil cases alleging a violation of national law
Civil cases brought against the U.S. government
Civil cases between citizens of different states if disputed amount exceeds $75,000
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The U.S. Courts of Appeals
Twelve regional U.S. courts of appeals Thirteenth court, U.S. Court of Appeals for
the Federal Circuit, is not a regional court
Each appeals court hears cases from a geographical area, or circuit
All cases resolved in U.S. district court or decisions of federal administrative agencies can be appealed
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Geographic Boundaries of Federal District Courts and Circuit Courts of Appeals
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Appellate Court Proceedings
Rulings based on rulings made and procedures followed in trial courts If ruling incorrect or proper procedure
not followed, may order new trial
Most cases resolved by panel of 3 judges Judges review written briefs May or may not schedule oral
arguments 20
Precedents and Making Decisions
Written judgment of appellate courts serve as precedent for subsequent cases
Judges make policy to extent they influence other courts
Stare decisis : Let the Decision Stand.. provides continuity and predictability to the law
Rulings designed to correct errors in district court proceedings and to interpret the law
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Uniformity of Law Appellate courts try to harmonize
decisions in region when district judges make conflicting rulings
However, courts of appeals not bound by decisions of other circuits
Supreme Court avenue for resolving conflicting decisions by different circuit courts of appeals
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The Supreme Court Supreme Court strives to achieve a
just balance among the values of freedom, order, and equality
Flag burning as a form of political protest
School desegregation Race as a factor in university
admissions23
The Justices of the Supreme Court of the United States
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Access to the Court Idea that anyone can take a case to
the Supreme Court theory, not fact
Court’s cases come from two sources: Original jurisdiction established by Article
III, Section 2, of the Constitution Appellate jurisdiction from U. S. courts of
appeals or a state’s court of last resort
Cases from state courts must have exhausted appeals in their state system and deal with a federal question
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The Supreme Court’s Docket
Supreme Court hears fewer than 100 cases from the more than 8,000 submitted each year Requests made by petition for certiorari Rule of four unwritten requirement Business cases substantial portion of
docket
Justices meet twice a week to vote on previously argued cases and consider new cases
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The Solicitor General
Represents the national government before the Supreme Court Third-ranking position in Department of
Justice
Duties include determining whether to appeal a lower court’s decision, reviewing briefs for appeals, and deciding whether or not to file amicus curiae briefs in any appellate court
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The Solicitor General Position has two roles:
Advocate for president’s policy preferences Defend the institutional interests of the
national government
Traditionally recommends only cases of general importance
Some call position “the tenth justice”
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Decision Making
Once review granted, attorneys submit written briefs --they are definitely not brief!
Oral arguments held two to three hours a day, five to six days per month from October through April
After arguments heard, justices hold conferences to discuss cases and vote These meetings limited to the nine
justices29
Journey of a Lifetime
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Judicial Restraint and Judicial Activism
Concept of judicial restraint means decisions based on legal doctrines, prior decisions, and deference to elected officials
Judicial activists maintain judges should use powers to promote judges’ preferred social and political goals
Terms not limited to a particular ideology
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Figure 14-3
Measuring Judicial Activism
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Judgment and Argument
Voting outcome is called the judgment
Justices in the majority draft opinion setting out reasons for decision If all agree, decision is unanimous Justices who agree but for different
reasons than listed in the majority opinion may file a concurring opinion
Justices who disagree may file a dissenting opinion
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The Opinion The chief justice or most senior justice
in the majority decides which justice will write majority opinion
Draft opinion circulated among all justices for criticisms and suggestions Justices may choose to change initial
vote during this time
Dissent happening more frequently in recent years
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Strategies on the Court
Cases that reach the Supreme Court require difficult choices
Ideologies reflect values; some justices have tried to encourage appointment of like-minded colleagues Liberals value freedom over order
and equality over freedom Conservatives choose order over
freedom and freedom over equality Intellectual ability also affects debates35
The Chief Justice Forms docket Directs Court’s conferences May also serve these roles:
Generating solidarity within the group
Intellectual leadership Policy leadership
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Judicial Recruitment No formal requirements for appointments to federal courts President nominates; Senate must confirm Congress sets compensation:
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Chief Justice of the Supreme Court
$223,500
Associate Supreme Court justices
$213,900
Courts of Appeals justices
$184,500
District judges $174,000
Magistrate-judges $160,080
State Judicial Selection
Governor appoints judges in more than half of the states Some must then face retention
elections
Partisan election Nonpartisan election Legislative election In some states, must be confirmed in
legislature38
The Appointment of Federal Judges
Appointments for life
Presidents look for judges who favor their policies
Office of White House Counsel helps identify candidates Justice Department assists with screening
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The “Advice and Consent” of the Senate
For district and appeals court, senator from president’s party must approve Senatorial courtesy Or state’s House delegation, if no
senator from president’s party
Recent presidents have tried to appoint more women and minorities
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Senate Confirmation Senate Judiciary Committee conducts
hearings for each judicial nominee
Confirmations have become ideological battleground Hearings focus on judicial policy and
approach towards interpretations of the law
Filibusters sometimes used to prevent appointments
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The American Bar Association
By custom, ABA screens judicial candidates Well qualified Qualified Not qualified
George W. Bush did not use, believing group too liberal
President Obama restored use
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Recent Presidents and the Federal Judiciary
While recent presidents have appointed more diverse judiciary, ideology rules
Carter’s appointments most liberal
Reagan and George W. Bush-appointed judges most conservative
Ideological appointments easier when president’s party controls Senate
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Appointment to the Supreme Court
Attract extreme public scrutiny
Since 1900, six appointments have failed to be confirmed by Senate Most important factor: partisan politics
Most nominees have prior judicial experience
“Lame duck” presidents frequently unsuccessful
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Justice Elena Kagan Joining the Supreme Court
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Ideological Shifts President George W. Bush nominated two
Supreme Court justices, John Roberts and Samuel Alito
As a result, ideology of court more conservative
Justice Kennedy now “swing vote”
President Obama nominated Sonia Sotomayor and Elena Kagan
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Figure 14-4
A More Representative Court
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The Consequences of Judicial Decisions
Judicial rulings small percentage of legal dispositions
Most cases end in plea bargain or no court judgment About 10 percent of civil and
criminal cases go to trial Many cases appealed to delay
day of reckoning
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Supreme Court Rulings:Implementation and Impact
Others must implement Supreme Court decisions
Ambiguous opinions affect implementation Desegregation and school prayer
Roe v. Wade generated (and continues to generate) heated response from public
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Public Opinion and the Supreme Court
Even though not elected, ideologically balanced Court and public sentiment eventually align in most cases One exception: school prayer
Poll in 2009 showed six in 10 Americans more likely to approve than disapprove of job Supreme Court doing
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The Courts and Models of Democracy
Majoritarian model: courts should follow the letter of the law and defer changes to elected representatives
Pluralist model: courts are policymaking branch of government and have legitimate right to consciously advance group interests Class action suits State court rulings based on either federal
law, state law, or both
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The Right to Die Supreme Court rulings in Washington v.
Glucksberg and Vacco v. Quill that U.S. Constitution does not protect a right to assisted suicide States allowed to make own laws
Silence in Terry Schiavo case let stand lower court’s ruling
Other industrial democracies have decriminalized right to die
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