Transcript THE JUDICIARY

THE JUDICIARY-chapter
10 AP Book
www.supremecourtus.gov
http://docket.medill.northw
estern.edu/archives/004607.
php
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What are the qualifications per the
Constitution to be on the Supreme
Court?
Discuss the nomination process.
Page 369
What part does the FBI play in this process?
What part does the American Bar
Association play?
• What is the Federalist Society?
The Constitution and the
National Judiciary
• Article III of the Constitution establishes:
– a Supreme Court in which the judicial power of the United
States is vested
– life tenure with ‘good behavior’ for judges
– judges receive compensation that cannot be diminished during
their service
– such inferior courts as Congress may choose to establish
– the original jurisdiction of the Supreme Court
• The intent of Article III was to remedy the failings of
the Articles of Confederation which left judicial matters
to the states.
Article III - Supreme Court
President appoints
Senate confirms
Generally speaking, the Court
will hear cases
• involves a basic constitutional
principle
• an important question of federal law
• conflict between state and federal
laws
• Handout: How well do you know
your U.S. Supreme Court?
Supreme Court 2011
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John Paul Stevens – Ford-retired
Samuel Alito-George W. Bush
*John Roberts-George W. Bush (chief justice)
Antonio Scalia - Reagan
Anthony Kennedy - Reagan
David Souter – Bush-retired
Clarence Thomas - Bush
Ruth Bader Ginsburg - Clinton
Stephen Breyer – Clinton
Sonia Sotomayor-Obama
Elena Kagan-Obama
http://supremecourt.c-span.org/
Nomination and Confirmation
• The president usually tries to nominate a
justice whose political philosophy is similar to
his/her own
• The nominee must win approval of the
Senate
• We refer to periods by the Chief Justice
(Berger Court, Warren Court, Rehnquist
Court, Roberts Court)
• Solicitor General-nine and a half member
Political Philosophy
Court - an ever changing political
institution that fluctuates between
liberalism and conservatism as well
as activism and restraint.
Judicial Review
• Judicial review is the power of a court to decide
if a law or other legal issue contravenes the
Constitution, and overturn it.
• This power is not mentioned in the Constitution.
• Judicial review was established by the Marshall
Court for itself and posterity in Marbury v.
Madison (1803).
• Marbury's long-term effect has been to allow
the Court to have the final say in what the
Constitution means.
Judicial Review
• Judges have used this power
sparingly.
• The power has only been used
about 140 times to strike down acts
of Congress.
• Although more frequently (over
1200 times) to invalidate acts of
state legislatures.
http://sunnylandsclassroom.
org/Asset.aspx?id=1468
• The American legal system is a dual system:
– state courts--actually 50 different 'systems'
– federal courts
• Both systems have three tiers: JUDICIARY ACT OF
1789 Annenberg classroom-How a trial works video.
– trial courts--litigation begins and courts hear the facts of the
case at hand (original jurisdiction)
– appellate courts--decide questions of law, not fact (appellate
jurisdiction)
– high or supreme courts- FIGURE 10.1 PG. 357
Judicial Activism
The Court should take an active
role in using its powers to check
the actions of Congress,
legislatures, the executive branch
and agencies.
Examples: Roe v. Wade-1973
Brown v. Board of Education-1954
Judicial Restraint
The Supreme Court should
defer to the decisions made
by elected representatives of
the people in the legislative
and executive branches.
Federal Selection Process
• The selection of judges is a very
political process.
• Judges are nominated by the president
and confirmed by the Senate.
– Often presidents solicit suggestions from
members of the House of Representatives,
Senators, their political party, and others.
• Provides president opportunity to put
philosophical stamp on federal courts
How the Justices Vote
Legal Factors
• Judicial Philosophy
– Judicial Restraint - advocates minimalist roles for
judges, and the latter
– Judicial Activism - feels that judges should use the law
to promote justice, equality, and personal liberty.
• Precedent
– Prior judicial decisions serve as a rule for settling
subsequent cases of a similar nature.
– STARE DECISIS
How the Justices Vote
Extra-Legal Factors-Roper v. Simmons 2005
• Behavioral Characteristics
– The personal experiences of the justices affect how they vote.
Early poverty, job experience, friends and relatives all affect
how decisions are made.
• Ideology
– Ideological beliefs influence justices' voting patterns.
• The Attitudinal Model
– A justice's attitudes affect voting behavior.
• Public Opinion-World Opinion
– Justices watch TV, read newspapers, and go to the store like
everyone else. They are not insulated from public opinion and
are probably swayed by it some of the time.
GO TO MIRANDA ACTIVITY
http://www.teachersdomain.org/sea
rch/?q=miranda+v.+arizona&fq_gr
ade=PK&fq_grade=PS
Go to favorites: Time Odd Todd
cartoon on Miranda.
Demystifying the Cert
Process
The Supreme Court “is not and has never been
primarily concerned with the correction of
errors in lower court decisions.”
- Chief Justice Vinson
The Certiorari Process
The Supreme Court
“is not and has never been
primarily concerned with
the correction of errors in
lower court decisions.”
- Chief Justice Vinson
The Court’s Primary Role
To resolve conflicts in lower courts; interpret
the constitution, laws and treaties of the United
States
In other words:
“To secure the national rights and
uniformity of judgments”
»John Rutledge at the Constitutional
Convention
~ 80
Decisions
Original
Jurisdiction
~80% of cases accepted come
from federal system
U.S. Supreme Court
U.S. Circuit Court of Appeals:
12 circuits + Federal Circuit
<1% of cases accepted
are original jurisdiction
State Supreme Court –
highest state court
Intermediate Appeals
Court
U.S. District Court –
94 districts
Federal Trials
FEDERAL: 1 million cases/yr
Trial Courts –
municipal or county
Local Trials
STATES: 30 million cases/yr
DC
Fed.
How many cert petitions
are considered?
• In recent terms, there have been between 7,000 and 9,000
cases appealed to the Supreme Court each year
• Out of approx. 8,000 petitions in the average year, about 70
to 75 are granted (0.9%)
Paid Petitions
In forma pauperis
Petitions that pay the $300
filing fee
litigants who can’t pay the
filing fee (often prisoners)
~20% of petitions
~80% of petitions
3-4% granted
0.2% granted
Make up 85-90% of
docket
Make up 10-15% of
docket
Cert: The Numbers in 2008-09
6,142 IFP
Petitions
1,596
paid
+ Petitions
7,738
total
Petitions
78 cases argued, 75
decided after
argument
About 1% of all
petitions!
Statistics compiled from Chief Justice Roberts’s
2009 Year-End Report on the Federal Judiciary
and SCOTUSBlog, 6.29.09 StatPack
Cert: The Justices’ Role
With 8,000 petitions per year:
If a Justice spent 40 hours per week, 50 weeks per
year ONLY reading cert petitions, they would be able
to allocate approximately 15 minutes to each
petition (which may include the petition itself, the
brief in opposition, a reply brief, and amicus briefs).
The Justices cannot possibly read all the cert
petitions. They just don’t have the time.
Cert Pool
IN the pool
Roberts
NOT in the pool
Scalia
4 clerks x 7
justices =
Kennedy
28 law clerks
=
Sotomayo
r
Thomas
4 clerks x 2
justices =
Stevens
Alito
=
8 law clerks
read 8,000
petitions
read 8,000
petitions
Each clerk reads
and writes a
memo on 285
Each clerk reads
1000
petitions/yr
Ginsburg
Breyer
Advantages of the Pool
• Saves time
• Someone is more thoroughly going over
each petition
• Clerks from other chambers can mark up
pool memos and give to their justice
Disadvantages of the Pool
• Reduces independence if seven of the nine
justices are in the pool and they’re relying
on one writer for each memo
• The pool gives clerks - generally one year
out of law school and only at the Court for
one year - too much responsibility for
setting the Court’s agenda
“Discuss List”
• The Chief Justice generates a discuss list, based on
memos prepared by clerks. Other justices may add
to the list.
• All cases generated by Solicitor General (head
Supreme Court lawyer for federal government) are
automatically discussed
• All Capital Cases discussed (no such thing as a
“frivolous case” here)
The Rule of Four
• If four justices vote to grant cert, it is granted
• Designed to prevent tyranny of the majority
• If a case does not gain four votes, a justice may
write a “dissent from denial,” but this is
extremely rare
• All votes are secret
More “cert-worthy” criteria
• Conflict in lower courts
• Important
– Multiple amicus briefs at cert stage
– Affects large number of people
– Unique/one of a kind case this Court must decide
More reasons to deny
than
to grant!
• A better case “in the pipeline”
• The issue hasn’t “percolated”
enough
• A petition that raises too many
questions (prefer focusing on one issue)
• Bad vehicle for reaching this legal
issue
• Case is deemed “frivolous”
• What’s important is the legal issue
raised, not the parties or facts
• Assumption is: a better case will come
along if the issue is important
• Don’t want to risk producing a fractured
opinion (4-4-1 or 4-2-3 splits)
Petitions filed by individuals are
lower priority
Ranking tends to be:
#1 - U.S. government
#2 - Corporations
#3 - States
#4 - Organized groups
#5 - Individuals
Go to cert activity
Then again…
“It is really hard to know what makes up the broth of the
certification process… Some cases are ones you can just smell
as grants.”
Supreme Court Justice, 1990
http://supremecourt.cspan.org/CurrentCourt.aspx
How Supreme Court
Decisions are Made
Case on the Docket
Approx 95
Justices Conference
Cases discussed
Votes taken
Opinion Assigned
Briefs and Amicus
Briefs submitted
Opinions Drafted
and Circulated
Oral Argument
Opinions Announced
RESEARCH SITES
www.oyez.org/oyez/frontpage
www.findlaw.com
www.law.cornell.edu
www.landmarkcases.org
Landmark Cases
• Marbury vs. Madison (1803) judicial
review
• McCulloch vs. Maryland (1819) upheld
implied powers clause-to tax a bank
• Gibbons vs. Ogden (1824) power to
regulate interstate commerce, federal
law prevails over state law
• Dred Scott vs. Sandford (1857)
contributed to the Civil War
Landmark Cases cont.
• Plessy vs. Ferguson (1896) “separate
but equal”
• Brown vs. Board of Education (1954)
“separate is inherently unequal”
• Baker vs. Carr (1962) reapportionment,
one person one vote
• Roe vs. Wade (1973) right to privacy
• Gideon v. Wainwright (1961) right to
counsel GO TO DVD
SELECTED SUPREME COURT
CASES
• In your textbook: pages 744-750.
• You have a quick reference for cases.
The Supreme Court Today
• According to a 1990 poll, only 23% of Americans
knew how many justices sit on the Supreme Court,
and two-thirds could not name a single member.
• In 1998, a poll of teenagers showed that only 2%
could name the Chief Justice.
• Yet, Supreme Court decisions have been credited
with strengthening the Constitution, increasing the
power of the federal gov’t., starting the Civil War,
reshaping race relations, restoring fairness to our
electoral system, redefining the rights of women,
and most recently deciding a presidential election!