The Weakest Branch: Or Is It? Henry B. Stobbs, MFA Kenyon Academic Partnership.

The Weakest Branch: Or Is It?

Henry B. Stobbs, MFAKenyon Academic Partnership

Copyright Notice

Certain materials in this presentation are included under the fair use exemption of the U.S. Copyright Law and have been prepared with the multimedia fair use guidelines and are restricted from further use.

I. Purpose of Courts

A. Resolve legal disputes by applying the law to indv situations

1. Criminal law: the people vs an indv

2. Civil law: an indv vs an indv

***Please note that a legal indv does NOT have to be a human being. A legal indv can be an indv, a business, a corp, a govt agency.***

B. Major players

1. Criminal lawa. Prosecutor—represents the people

b. Defendant—indv accused of breaking law

2. Civil lawa. Plaintiff—indv who was wronged

b. Defendant—indv accused of wrongdoing

3. Judgea. Applies the law

b. Instructs the juryc. Keeps proceedings fair and

neutral d. May decide case if no jury

4. Jurya. Decides facts of case

b. Determines innocence or guilt

C. Precedent

A ruling that sets guidelines for future similar cases

D. Jurisdiction

1. Define: a court’s right to hear a case

2. Original jurisdiction (aka: trial court)a. First time a case is heardb. Establishes facts of

case/determines innocence or guilt

3. Appellate jurisdictiona. Higher court that reviews trial court

decisions b. Does NOT retry the case; only determines if 1. Original proceedings were fair 2. Law was correctly applied

E. State courts

1. Deal with state laws

2. Three levels a. Trial courts b. Appellate courts (aka courts of appeal) c. State supreme court (aka court of final appeal)

3. Cases may be appealed to the USSC if a federal or constitutional issue is involved

F. Federal Courts

1. Original jurisdiction over federal issues a. Federal laws

b. Constitutional issuesc. Resident of one state v

resident of another state d. Treaties

e. Maritime issues f. Foreign govt is involved g. US govt is involved

2. Three levelsa. Trial court (aka District Court)

b. Appellate court (aka Court of Appeals) c. Supreme Court (aka Court of Final Appeal)

Routes to the USSC

Federal District Courts

Specialized Federal Courts

Court of Appeals for the Federal Circuit

Court of Military Appeals

Certiorari

Federal Court of Appeals

Certiorari Certification Certiorari

State Courts of Last Resort (Usually State Supreme Courts)Appeal

Appeal

II. The Story of the Federal Court System

A. The Judiciary Act of 1789Established the federal court system

by dividing the country into federal judicial districts, creating district courts and courts of appeals

B. District Courts

1. 94 across the country and US territories a. 89 throughout the states according to population distribution b. 1 each in

1. D.C.2.

Puerto Rico 3. Guam 4. US Virgin Islands 5. Mariana Islands

2. Original jurisdiction over federal cases

3. Territory District Courts also have original jurisdiction over local cases

C. Courts of Appeals (Circuit Courts)

1. 13 across country

a. 12 hear appeals from district courts

b. 1 hears appeals from

1. Special courts like claims court, tax court, etc

2. Federal agencies like Office of Patents and Trademarks, Civil Service Commission, etc

D. Federal Judges

1. Appointed by Presidenta. Advisors recommend

candidates b. Professional background

c. Political/social viewsd. Collegiate career

2. Confirmed by Senatea. Judiciary cmte. holds

hearings b. Professional background c. Political/social views d. Simple majority vote

3. Life terms

a. Death b. Resignation/retirement c. Impeachment

4. Balance rights of indv vs common good

III. United States Supreme Court A. Judicial Review

1. Define: Power to overturn any Act of Congress or executive action the Court deems unconstitutional

2. Is it in the Constitution? Not specifically

stated; however, the Constitution says the Court shall

“interpret the law”

Back Story Interlude: Judiciary Act of 1801

Reduced SC to 5 justices

Eliminated circuit duties

Created 16 judgeships for six judicial circuits, which gained jurisdiction over all cases arising under the Constitution and acts of the United States

Eased the ability of creditors to recover debts in federal court

Federalists loved it, Republicans hated it!

Interlude, continued…

Monday, March 2, Tuesday march 3, 1801

Senate approves nominations of 53 “Midnight” justices of the peace, registers of wills, and marshals for the new District of Columbia

Among the justices of the peace is one William Marbury

3. Established by Marbury v Madison (1803)

a. Facts of the case: Marbury appointed

Washington, D.C. Justice of the Peace by outgoing Pres. John Adams.

b. New Pres. TJ tells Sec State Madison NOT to deliver letter of appointment (Marbury can’t take his new job)

Marbury sues in USSC citing right to do so in Fed Jud Act of 1789 and asks for a writ of mandamus

c. Justices consider both facts of case and law in question

d. Findings:

Marbury was legally appointed and Sec State Madison should deliver letter BUT the part of the Fed Jud Act of 1789 that said the USSC would hear this type of case is unconstitutional.

The Constitution lists specific type cases the USSC has original jurisdiction over. This was not one of them.

SO, because that part of law was unconstitutional, Marbury shouldn’t have sued in USSC and USSC doesn’t have authority to make Madison deliver the letter.

e. Precedent set: THE CONSTITUTION IS WHAT THE SUPREME COURT SAYS IT IS

First time Court interpreted the Constitution to the extent of declaring part of a law unconstitutional.

This put the Jud Branch on equal footing with Leg and Exec branches because the Court has the power to declare acts of the others unconstitutional.

***The US STILL has arguments over this issue!! Many people recognize this as constitutional, but others say the Constitution is black and white and NOT subject to anyone’s interpretation—including the USSC!

B. Justices

1. Appointed by Presidenta. Advisors recommend

candidates b. Professional background

c. Political/social viewsd. Collegiate career

2. Confirmed by Senatea. Judiciary cmte holds

hearings b. Professional background c. Political/social views d. Simple majority vote

3. Life terms

a. Death b. Resignation/retirement c. Impeachment

4. Why it matters!!

Conservative presidents = conservative justices

Liberal presidents = liberal justices

Justices serve for years

Justices interpret the Constitution; set precedent

Those precedents affect all Americans

C. A day in the life of the USSC…

1. Calendara. Term: first Monday in October – end

of June b. Sittings: 2-wk sessions when Justices hear cases then retire to decide opinions

2. Selecting casesa. Original jurisdiction cases—must

hear these 1. State govt. v state govt. 2. Foreign rep a party in a case

b. Appellate jurisdiction cases—choose to hear

1. Must deal with federal or constitutional issue

2. Must impact a majority of citizens

“Rule of Four”—four of the nine justices must agree to hear the indv case out of the 1000s of cases appealed to them.

3. Case is on the docket (aka a court’s schedule or calendar)

a. Briefs are submitted—written summary of each lawyer’s side of the case

b. Justices study lower court proceedings and briefs

c. Oral arguments1. Each side gets 30 mins

to argue 2. Justices get to ask questions

4. Deliberations

a. CJ summarizes case and main points b. Group discussion, each presents views c. Justices vote—simple majority “wins”

5. Opinions issued a. Define: written statement explaining ruling and reasons for reaching that decision b. Majority opinion: “winning” decision, sets precedent

c. Concurring opinion: agree with majority opinion but for different reasons d. Dissenting opinion (aka minority opinion):

disagree with majority opinion

D. Factors influencing the Court

1. Constitution—fundamental law of US 2. Precedent—are there past similar cases 3. Intent—of the Constitution and law(s) in question 4. Social values—what is the current view of most Americans (will of the people) 5. Personal judicial philosophy—to what extent should justices become involved in setting policy

JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?

JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?

JUDICIAL ACTIVISM: the Jud branch is an equal partner with the Leg and Exec and should be actively involved in interpreting and applying laws. Strong belief in judicial review.

JUDICIAL PHILOSOPHY: An ongoing “discussion” in American politics about the extent to which justices/judges should involve themselves with setting policy. Judges don’t make laws so how does a judge set policy?

JUDICIAL ACTIVISM: the Jud branch is an equal partner with the Leg and Exec and should be actively involved in interpreting and applying laws. Strong belief in judicial review.

JUDICIAL RESTRAINT: the Jud branch should let the Leg and Exec branches set policy and only get involved if that policy is a flagrant violation of Constitution. Not a strong belief in judicial review.

*NEITHER VIEW IS LIBERAL OR CONSERVATIVE*

E. Checks on the Court

1. Executive: pres appoints conservative or liberal justices/judges depending on his beliefs

2. Legislative: Senate confirms appointees based on its majority’s beliefs

3. Amendment process: a. How is this a check? USSC makes

decision people REALLY don’t like. People persuade Congress to propose a constitutional amendment. If ratified by the states, it nullifies the USSC decision.

b. Examples

1. Dred Scott (1857) decision: Slave was property and not free just because he had lived in a free state. As property, and not a US citizen, he had no right to sue in federal court.

14th Amendment (1868) : Declared former slaves to be US citizens with all rights of citizenship.

This amendment nullified the Dred Scott decision.

Abortion????

Flag burning????

Gay marriage????

Stem cell research????

*****PLEASE NOTE*****

The president CANNOT propose a constitutional amendment. WHY??

At no point does the President have a role in the formal amendment process (though he would be free to make his opinion known). He cannot veto an amendment proposal, nor a ratification. This point is clear in Article 5, and was reaffirmed by the Supreme Court in Hollingsworth v Virginia (3 USC 378 [1798]):

The negative of the President applies only to the ordinary cases of legislation: He has nothing to do with the proposition, or adoption, of amendments to the Constitution.

ReferencesAgresto, John. The Supreme Court and Constitutional Democracy. Ithaca, NY: 1984, Cornell P.

Infoplease.com. “The Judiciary act of 1789.” Infoplease.com. Available from http://www.infoplease.com/t/hist/federal-judiciary-act. Internet; accessed 2 march 2009.

Long, Bill. "The Judiciary Act of 1801 I." Legal History II. Available from http://www.drbilllong.com/LegalHistoryII/1801.html. Internet; accessed 3 March 2009.

Montaldo, Charles. “Supreme Court Façade”. Supreme Court Photos. Photograph Available from http://www.About.com. Internet; accessed 2 March 2009.

Patterson, Thomas E. We the People: A Concise Introduction to American Politics, 6th Ed. New York: 2006, McGraw-Hill.

“Chief Justice John Marshall.” U.S. Courts History. Photograph Available from http://www.dcd.uscourts.gov/marshall.html. Internet; accessed 2 March 2009.