AP US GOVERNMENT: CHAPTER 15: THE JUDICIARY: THE BALANCING BRANCH

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1 AP US GOVERNMENT: CHAPTER 15: THE JUDICIARY: THE BALANCING BRANCH There is an emerging trend toward the globalization of judicial power Judicial review- the power to authoritatively interpret the Constitution. Only a constitutional amendment or a later Supreme Court can modify the court s doctrine. Judges not only settle legal conflicts but in some cases have overseen the operation of schools, prisons, mental hospitals, and complex businesses. The scope and nature of judicial powers limits the role of judges. THE SCOPE OF JUDICIAL POWERS Adversary System- a judicial system in which the court of law is a neutral arena where two parties argues their differences before an impartial arbitrator. This system is based on the fight theory- which holds that arguing over law and evidence which may or may not arrive at the truth, guarantees fairness in the judicial system. The adversary system imposes restraints on the exercise and scope of judicial power. Judicial power is essentially passive and reactive Justiciable disputes- lawsuits that grow out of actual controversies and are capable of judicial resolution. A judge doesn t use their power unless there is a real case or controversy- it s not enough they just have an interest in a case or subject. Plaintiff- party bringing the lawsuit. Plaintiff must have Standing to Sue - they must have sustained or be in immediate danger of sustaining a direct and personal injury. They may not raise hypothetical issues- they must have a real dispute and opposing interests with another party. The Supreme Court, in recent years, has granted standing to individuals who claim nonmonetary injuries that are shared by others. Class Action Suites- lawsuit brought by an individual or a small number of people on behalf of all those similarly situated. These lawsuits may force major changes in public policy. Civil law- when individuals sue each other over a traffic accident, or seek monetary awards for the injuries suffered to their body or property. The government may bring civil lawsuits against individuals and businesses. Only the government may prosecute individual crimes, such as carjacking and robbery, as defined under federal criminal law. Prosecutors decide whether to charge an offense and which offense to charge. Defendants- those charged with committing a crime. Plea bargain- where defendants agree to plead guilty to a lesser offense to avoid having to stand trial and face a sentence for a more serious offense. On the federal level, the job of prosecution falls to the Department of Justice: the attorney general, the solicitor general, the 94 US attorneys, and 1200 assistant attorneys. The President, with the consent of the Senate, appoints a US attorney for each district court. US attorneys serve 4-year terms but may be dismissed by the president at any time.

2 The attorney general appoints assistant attorneys. The US attorney s work with the FBI and other federal law enforcement agencies to begin proceedings against those alleged to have broken federal laws. Types of Laws: Statutory Law- law that comes from authoritative and specific lawmaking sources primarily legislatures but also including treaties and executive orders. Common Law- judge-made laws that originated in England in the 12 th Century. Continues to develop under the rule of precedent, which implies that a rule established by a court is to be followed in all similar cases. Equity Law- law used whenever common law remedies are inadequate. Under equity a person may ask the judge to issue an injunction ordering the offending person not to take the threatened action. If the wrongdoer persists, he or she may be punished for contempt of court. Constitutional Law- statements interpreting the US Constitution that have been given Supreme Court approval. Admiralty & Maritime Law- law applicable to cases concerning shipping and waterway commerce on the high seas and on the navigable waters of the US Administrative Law- law relating to the authority and procedures of administrative agencies as well as to the rules and regulations issued by those agencies. Criminal Law- law that defines crimes against the public order and provides for punishment. Government is responsible for enforcing criminal law, most of which is enacted by states and enforced by state officials in state courts. Civil Law- that that governs the relations between individuals and defines their legal rights. Public Defender System- arrangement whereby public officials are hired to provide legal assistance to people accused of crimes who are unable to hire their own attorneys. Federal public defenders are under the supervision of the Administrative Office of the US Courts. The most important problem confronting the public defender program is lack of funds. Courts cannot resolve all disputes. Some raise political questions that would require the use of methods not suitable for a court, for which there is no legal remedy, or which the Constitution explicitly assigns to Congress or the president such as foreign affairs. Supreme Court ultimately decides what is and is not a political question. Bush v. Gore- Supreme Court ruled, and a 5-4 majority stopped the recount of votes in Florida; the four dissenters contended that the matter should have been left to the political branches to decide. Jurisdiction of the Federal Courts: They can hear and decide cases or controversies in law and equity in the following circumstances: If they arise under the Constitution, a federal law, or a treaty

3 IF they arise under admiralty and maritime laws. IF they arise because of a dispute involving land claimed under titles granted by two or more states If the US is a party to the case If a state is a party to the case (but not if a suit was begun or prosecuted against a state by an individual or foreign nation) If they are between citizens of different states- Congress has limited these types of cases to those where the controversy is over $50,000 or more IF they affect the accredited representatives of a foreign nation Judicial Federalism: State and Federal Courts The US has a dual judicial system of federal and state courts Trial courts- those where cases are heard/argues Appellate courts- hear appeals from the lower courts State courts primarily interpret and apply their state constitutions and law. When the states decisions are based solely on state law, their rulings may not be appealed to or reviewed by federal courts. Only decisions that raise a federal question, involving the application of the Bill of Rights or other federal law, are federal courts able to review. Writ of Habeas Corpus- a court order requiring explanation to a judge why a prisoner is being held in custody. The Supreme Court is the only federal court that may review state court decisions, and only in cases involving a conflict with federal law. No federal court has any jurisdiction except that granted to it by an act of Congress Most litigation occurs in state courts The largest portion of state court cases involves economic issues. THE FEDERAL JUDICIAL SYSTEM Article III/Constitutional Courts- courts created to carry out the judicial power of the US as listed in the constitution. Article I/Legislative Courts- those to carry out the legislative powers the Constitution has granted to it. The main difference between a legislative and constitutional court is that the judges of a legislative court need not be appointed to hold their offices during good behavior. Article III judges basically have lifetime appointments. PAGE 382- CHART STRUCTURE OF FEDERAL COURTS The Constitution requires a Supreme Court- the fact that it was missing was a big defect under Articles of Confederation Congress decides whether there will be other courts in addition to the Supreme Court Original Jurisdiction- the authority of a court to hear a case in the first instance such as those affecting ambassadors, other public ministers, and consuls in cases in which a state is a party. Appellate Jurisdiction- all other cases, the Supreme Court has the power to review decisions of other courts and agencies- as determined by Congress.

4 District Courts In 2002, they heard more than 250,00 civil cases and 62,700 criminal cases. Each state has at least one federal district court/ no state has more than four. There are 665 judgeships in 94 district courts District courts are trial courts of original jurisdiction and are the only federal courts to regularly employ: Grand juries- a jury of people who in private, hear evidence presented by the government to determine whether persons shall be required to stand trial. IF the jury thinks there is sufficient evidence a crime was committed, it issues an indictment. Petit juries- a jury of 6-12 persons who determine guilt or innocence in a civil or criminal trial. District judges are concerned with federal laws- they decide cases involving crimes against the US- postal, patent, copyright, trademark, bankruptcy, civil rights, etc. District judges normally sit separately and hold court by themselves; however, they sit in three- judge panels in cases involving reapportionment and voting rights. They are appointed by the president, subject to confirmation by the Senate and hold office for life. Magistrate Judges- an official who performs a variety of limited judicial duties- they are screened by panels of residents of the judicial districts, and are appointed for 8- year renewable terms, part-time magistrates for 4-year terms. Magistrates look and act like judges- they issue arrest warrants, hold hearings to determine whether arrested persons should be held for action by the grand jury, and fi so, set bail. They preside over civil trials- jury and nonjury- with the consent of both parties and over nonjury trials for petty offenses with the consent of the defendants. Courts of Appeals CHART pg. 383 The decisions of federal district courts may be appealed and reviewed by federal courts of appeals. Court of Appeals- a court with appellate jurisdiction that hears appeals from the decisions of lower courts. District judges are bound by the precedents of higher courts, but they have considerable discretion in applying them. There are 11 judicial circuits that include all the states and US territories. The 13 th appellate district is the Court of Appeals for the Federal Circuit- located in DC and has national jurisdiction though it deals primarily with appeals in patent, copyright, and international trade cases. 9 th circuit court is the largest with 28 circuit judges and 99 district judges it is geographically the size of western Europe and contains 20% of the US population Each circuit court of appeals consists of 6-28 permanent judgeships and they hear cases in panels of 3 judges. They annually hear more than 50,000 appeals. Fewer than 1% of their decisions are appealed to the US Supreme Court- showing their power.

5 One current controversy involves the growing failure of appellate courts to publish their opinions, due to their growing caseloads, and whether unpublished opinions are binding precedents. Another controversy is whether the number of judges should be increased to keep pace with rising caseloads. THE POLITICS OF APPOINTING FEDERAL JUDGES It makes a difference who serves on the federal courts. The president selects federal judges with the advice and consent of the Senate- but it is actually a complex bargaining system. Department of Justice officials and key White House staff meet often to review proposed candidates. The Office of Legal Policy in the Department of Justice oversees the screening of potential judicial nominees: after their backgrounds and judicial philosophies have been checked, they are discussed by a White House working group that includes the legal counselor to the president and the attorney general. Senatorial Courtesy- practice of submitting the names of nominees or federal district and appeals courts for approval of the senators from the states in which the appointees work. Liberal interest groups monitor potential judicial candidates and are active in the preliminaries, making known their views before the nominees are released to the public. March, 2001 President George W Bush announced the ABA would no longer be asked to evaluate judicial candidates before nomination. Senate: Advice & Consent The normal presumption is that the president should be allowed considerable discretion in the selection of federal judges. Despite this, the Senate takes seriously its responsibility in confirming judicial nominations. When the Senate receives the name of a judicial nominee, it s ends the nomination to the Judiciary Committee for consideration. Before the committee holds a hearing, it sends to the senators of the nominee s home state a letter- called a BLUE SLIP because of its color- asking whether they approve. IF one of the senators declines to return the slip, the nomination is dead. If both home-state senators approve of a nominee, the committee holds a hearing, votes on the nominee, and sends its recommendation to the full Senate for consideration and confirmation based on majority vote.

6 The committee has asked judicial nominees a wide range of questions, since their judicial and political philosophy is a major factor in determining how they might vote on particular cases and controversies. Most judicial nominees have refused to answer questions that might reveal how they would decide a case. The battle over judicial confirmations ordinarily takes place before the Senate Judiciary Committee. The Senate has refused to confirm 29 of the 138 presidential nominations for Supreme Court Justices. The Role of Party, Race and Gender Partisan considerations are taken for granted, and partisan affiliation is rarely mentioned. Today more attention is paid to other characteristics such as race and gender. President Jimmy Carter selected more African Americans, Hispanics and women for the lower federal courts than all other prior presidents combined- 40 women, 37 African Americans and 16 Hispanics. President Ronald Reagan appointed fewer minority members or women than Carter did because fewer minorities and women could pass the Reagan administration s ideological screening. Bill Clinton promised to appoint federal judges who would be more representative of the ethnic makeup of the US- he lived up to it and named more women and minorities than any predecessor had. The Role of Ideology Presidents want to pick the right kind of Republican or our kind of Democrat to serve as judges. Judges picked by Republican presidents tend to be judicial conservatives Judges picked by Democratic presidents are more likely to be liberals. President Ronald Reagan s 2 terms made it possible for him to join FDR and Eisenhower as the only presidents in the last century to appoint a majority of the federal bench. Reagan appointed 368 lifetime judges- they carefully nominated only those whose views about the role of the courts and constitutional issues were consistent with Reagan s. Many of them were young and will continue to have an effect on judicial policy well into the 21 st Century. Bush #1 appointed 148 district judges, 37 appellate judges and 2 Supreme Court justices- David Souter and Clarence Thomas. All his appointees were among the most conservative in recent history. President Clinton gave Democratic senators clear guidelines to use so that competent professionals who would bring diversity to the bench were chosen. Divided Government slowed down Clinton, and led to Chief Justice Rehnquist, in his annual reports on the federal judiciary, to scold the Senate for jeopardizing the ability of the federal courts to do their work.

7 The Role of Judicial Philosophy Judicial Self-Restraint- the philosophy proposing that judges should interpret the Constitution to reflect what the framers would have intended and what its words literally say. Judicial Activism- the philosophy proposing that judges should interpret the Constitution to reflect current conditions and values. Federal courts have been more conservative through history than Congress, the White House or the legislatures. Conservatives were advocates of judicial self-restraint and argues that we needed judges who would let Congress, the president and the state legislatures regulate or forbid abortions, permit prayer in public schools, impose capital punishment, and not hinder law enforcement. Some conservatives favor judicial activism because they want current judges to reverse the last half-century of precedents. Liberals sometimes favor judicial restraint because they believe that judges should defer to the democratic process and that democratic self-governance will flourish if judges stay out of policy debates. The debate over the role of the Supreme Court today is less about activism and restraint than about competing conceptions of the proper balance between government authority and individual rights. It is also about whether and on what basis judges should make the law. Do Judges Make Law? Many people equate a judge s role with that of a referee in a prizefight, because of their role in trials and the adversary system. Not only DO judges make law, but they MUST. Legislatures make law by enacting statues, but judges must apply the statutes to concrete situations. Statutes are left in broad terms because legislators cannot know exactly what will happen in every circumstance- it is left up to the courts to judge their application in concrete cases. The problems of interpreting and applying law are intensified when judges are required to apply our more than 212 year old Constitution. Adherence to Precedent Judges make policy, but are not free to do whatever they wish. Stare Decisis- the rule of precedent, whereby a rule or law contained in a judicial decision is commonly viewed as binding on judges whenever the same question is presented. Stare decisis pervades our judicial system and promotes certainty, uniformity, and stability in the law. Judges are expected to abide by previous decisions of their own courts and by rulings of superior courts.

8 Many questions of law have conflicting precedents that can be used to support a decision for either party. The Constitution itself rather than any one interpretation of it, is binding, the court can reverse a previous decision it no longer wishes to follow, which it has done hundreds of times. Judicial Longevity and Presidential Tenure Ideology and judicial philosophy affect not only president s nominations for the federal courts but also when sitting judges choose to retire. Because federal judges serve for life, they may be able to schedule their retirement to allow a president whose views they approve to nominate their successor. Personal and institutional factors other than partisan concerns are the main reason justices retire. Reform of the Selection Process Several task forces have recommended that attempts be made to constrain the partisan politics surrounding the confirmation process. They proposed that Supreme Court nominees no longer be expected to appear as witnesses during their hearing and that the Senate should return to the practice of judging nominees on their written record and on the testimony of legal experts. Some recommend that the time between nominations and confirmation be shortened. Changing The Numbers: one of the first actions a political party takes after gaining control of the White House and Congress is often to increase the number of federal judgeships. With divided government, relatively few new judicial positions are created. Changing the Jurisdiction: congressional control over the structure and jurisdiction of federal courts has been used to influence the course of judicial policy making. Each year, a number of bills are introduced in Congress to eliminate the jurisdiction of federal courts over cases relating to abortion, school prayer, and school busing, and sparks a debate about whether the Constitution gives Congress authority to take such actions. THE SUPREME COURT AN DHOW IT OPERATES The Supreme Court s term runs from the first Monday in October through the end of June The justices listen to oral arguments for two weeks each month from October to April and then adjourn for two weeks to consider the cases and tow rite opinions. Six justices must participate in each decision Cases are decided by majority vote. In the event of a tie vote, the decision of the lower court is sustained. They hear cases at 10am on the days they sit, and they file into the courtroom- Chief Justice in the Center, and take their seats according to seniority. The Attorneys for the Department of Justice are seated on the right, facing the court, and are dressed conservatively. Dress and ceremony are all part of the high ritual of the Court.

9 The Powers of the Chief Justice The chief justice of the United States is appointed by the president upon confirmation by the Senate. The chief justice heads the entire federal judiciary. The chief justice has special administrative responsibilities in overseeing the operation of the judiciary such as assigning judges to committees, responding to proposed legislation that affects the judiciary and delivering the Annual Report on the State of the Judiciary. The Chief Justice sets the tone, controls the conference, assigns the most opinions, and usually, takes the most important, nation-changing decisions for himself. The ability of the chief justice to influence the court has varied considerably. Which Cases Reach the Supreme Court? Until 1988, the Supreme Court was obliged by law to review a large number of appeals. Today, almost all appeals come tot he court by means of discretionary WRIT OF CERTIORATI- a formal petition used to bring a case before the court that may be denied., Since the Supreme Court s docket is now largely discretionary, it has the power to set its own agendas and to select which cases it wishes to review. The justices decide fewer than 100 of the 9,000 cases appealed to them annually. A crucial factor in determining which cases it reviews, is its importance to the operation of the governmental system as a whole. The Supreme Court will review a case only if the claim involves a substantial question of federal law that has broad public significance. It also reviews cases in which rulings among the courts of appeals are in conflict, and by deciding a case, the Supreme Court establishes which ruling is to be followed. Another reason is when a case raises a constitutional issue on which a state supreme court has presented an interpretation with which the court disagrees. The court grants cases based on the RULE OF FOUR. If four justices are sufficiently interested in a petition for a writ of certiorari, it will be granted and the case brought up for review. Denial of a writ of certiorari does not mean that the justices agree with the decision of the lower court, nor does it establish precedent. It may mean they wish to avoid a political hot potato, or may want to let an issue percolate. The court takes on cases where they can provide uniformity to the law. After a case is granted review, each side prepares briefs presenting legal arguments, relevant precedents, and historical background for the justices and their law clerks to study and on the a basis of which to render their decisions. The Role of the Law Clerks Each Supreme Court justice is entitled to four clerks.

10 These are young people who have graduated from a leading law school and have previously clerked for a federal or state court. Each justice picks his or her own clerks and works closely with them throughout the term. Clerks screen writs of certiorari and prepare draft opinions for the justices. Many complain the Supreme Court has become clerk-driven as the number of law clerks and computers has increased so has the number of concurring and dissenting opinions. The Solicitor General Solicitor General- SG represents the federal government before the Supreme Court and is sometimes called the tenth justice. When the SG petitions the Supreme Court to review a decision of a lower court, the Court is likely to do so. No appeal may be taken on behalf of the US to any appellate court without the approval of the solicitor general. Hence, the SG s office may pick which cases to appeal. SG is an appointee of the president, but has considerable independence from the White House. Amicus Curiae Briefs- (Latin for friend of the court) a brief, filed by an individual or organization to present arguments in addition to those presented by the immediate parties to a case. These briefs guarantee the Department of Justice is represented if a suit questions the constitutionality of an act of Congress or the executive branch. The SG may also use these briefs to bring the court s attention the views of the current administration. Amicus Curiae Briefs Individuals, interest groups and organizations may also file them. If they claim to have an interest in the case and to have information valuable to the court. These briefs may help the justices by presenting arguments or facts that the parties tot he case have not raised. Interest groups have increasingly filed such briefs in an effort to influence the court and counter the positions of the SG and the administration. Interest groups may file these briefs BEFORE the Supreme Court grants a writ of certiorari in order to encourage the Supreme Court to review the case. Oral Arguments Counsel for each side is now allowed only 30 minutes to present their case. Lawyers use a lectern with two lights: a white light flashes five minutes before time is up; when the red light goes on, the lawyer must stop, even if in the middle of a sentence. Justices freely interrupt the lawyers to ask questions and request additional information- cutting into their 30 minutes. Justice Antonin Scalia is a harsh questioner as is Ruth Bader Ginsberg.

11 You can listen to cases by going to Behind the Curtains: The Conference On Wednesday afternoons and Fridays, the justices meet in private conference. They have heard the oral arguments and studied the briefs. Each brings to the meeting a red leather book in which the cases and the votes of the justices are recorded. These conferences are held in secret. The chief justice presides, usually opening the discussion by stating the facts, summarizing the questions of law, and suggesting how to dispose of each case. Each justice in order of seniority, then gives his or her views and conclusions. Opinions The Supreme Court announces and explains its decisions in : Opinions of the Court- state the facts, present the issues and explain the reasoning of the court. These opinions are the Court s principal method of expressing its views to the world. The primary function of opinions is to instruct judges at state and federal courts how to decide similar cases in the future. They must explain the reasoning of the majority of the justices. Justices also use opinions to communicate with the public. When voting with the majority, the Chief Justice decides who will draft the opinion of the court. When the chief justice is in the minority, the senior justice among the majority makes the assignment. Justices are free to change their minds if not persuaded by draft opinions. Dissenting Opinion- an opinion disagreeing with the majority in a Supreme Court ruling- they are quite common, and justices hope that someday their dissenting opinion will command a majority of the court. Concurring opinion- an opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning. The opinions must win the support of at least 4 and more if possible, intelligent, strong-willed persons. The assigned justice writes a draft ands ends it to colleagues for comments. If the draft is not satisfactory to the other justices, it must be redrafted and recirculated until a majority reaches agreement. The two weapons justices can use against their colleagues are their votes and the threat of writing dissenting opinions attacking the majority s opinion. The justices understood that any sign of dissension on the bench on a major social issue would be an invitation to evade the court s ruling. Now, the court gives only brief summaries of the decisions and their opinions on Opinion Days. Copies are immediately made available to the media, and online. After the Court Decides The Court does not implement its own decision but remands the case, sending it back to the lower court with instructions to act in accordance with its opinion.

12 The most important rulings require a change in the behavior of thousands of administrative and elected officials. Sometimes Supreme Court pronouncements are simply ignored. The most difficult Supreme Court decisions to implement are those that require the cooperation of large numbers of officials. JUDICIAL POWER IN A CONSTITUTIONAL DEMOCRACY Judges should not be dependent on the executive, the legislature, parties to a case, or the electorate. Judicial independence, essential to protect judges in their role as legal umpire, also to allow these same judges to make policy. The involvement of courts in politics exposes the judiciary to political criticism. Whereas in earlier times judges occasionally told public officials what they could not do, today they often tell them what they MUST do. Judges have always been policy makers; that role is not a matter of choice but flows from the roles they play in deciding cases. The Great Debate over the Proper Role of the Courts Some people contend that the courts have a duty to protect the interests of the public. Defenders of this activist judicial role argue that if Congress, the White House and the state legislatures are unwilling or unable to resolve pressing problems when people are denied justice and their constitutional rights, then the courts must address those problems. Courts should exercise self- restraint. Many argue that courts have a special duty to intervene: 1. Whenever legislation restricts the political process by which decisions are made. 2. Whenever legislation restricts the rights of discrete and insular minorities 3. When guarantees of the Bill of Rights are violated. The People and the Court There are linkages between what judges do and what the people want done. The president and the Senate are likely to appoint justices whose decisions reflect their values Therefore, elections matter, because the perspectives of the people who nominate and confirm the judges are reflected in the composition of the courts. There is a correlation between public opinion and judicial decisions. Judicial opinions that reflect what the people want have the greatest survival value. The political system alters judicial policy in more subtle ways- decisions are binding on the parties to a particular case, but the policies that result from judicial decisions are effective and durable only if they are supported by the electorate. If the court s policies are too far out of step with the values of the country, the court is likely to be reversed. The Supreme Court- and the other courts- generally represent and reflect the competing values of the people.

13 Ultimately the power of the Supreme Court in a constitutional democracy rests on retaining the support of most of the people most of the time.