American Government

Chapter 10 The Judiciary

US Constitution Article III The Judicial Branch
Section 1. The judicial Power of the United States, shall be vested in one supreme
Court, and in such inferior Courts as the Congress may from time to time ordain and
establish.
!ederal "fed# courts "cts# deal with all aspects of fed law. They are responsible for
interpreting laws made by Congress "Cong# and, more importantly, interpreting the US
Constitution "Cons#. The !$%&' interpreter of laws in the US rests with the US Supreme
Court "Sup Ct#. Thus, the US Sup Ct is the center of the nation(s govt system.
%ote) $n the various classes that $ teach, $ want students to get in the habit of stating the
US part when we mention federal courts. Thus, instead of stating the Supreme Court
"when referring to the federal "fed# court *ct+#, $ want you to state the US Supreme Court
"US Sup Ct#. ,hy- So we don(t mi. it up with other cts. !or e.ample, one of the lower
cts in %/ is State Supreme Court, often referred to as Supreme Court. /ou can see how
we can confuse State Supreme Court with the US Supreme Court. So, when we refer to
the highest ct in the land, let(s state it as the US Supreme Court "US Sup Ct#. 0owever, in
conversation, referring to the US Supreme Court as the Supreme Court is not the end of
the world. $(m just trying to avoid any confusion.
The a!
'aw may be defined as the principles and regulations "regs# established by a govt,
applicable to a people, and enforced by a govt. Thin1 of it on a simpler level. Police
departments are part of the e.ecutive branch of govt, whether it is on the fed, state,
county or local level. Thus, %/P2 cops enforce the laws that are made by the state
"and laws made by %/C also#.
In a "utshell#
a. The '34$S'&T$53 branch 6&73S the laws.
b. The 383CUT$53 branch 3%!9:C3S the laws.
c. The ;U2$C$&' branch $%T3:P:3TS the laws.
These < =:&%C03S "e.ecutive, legislative and judicial# of govt e.ist on all > '353'S
"local, county, state and federal# of govt.
$e %ave & Basic Types o' a!s#
?. Common a!
a. 9ften called judge@made law. $t is a set of rules that have been created by
judges in the course of rendering decisions on court cases.
b. Common law dates bac1 to medieval times in 3ngland.
c. Court "ct# decisions were based upon common sense, customs, and the facts of
the case.
d. 9nce a judge made a rule, it was usually applied to similar situations that
occurred in the future. Thus, a precedent was established.
e. These precedents are 1nown as stare decisis. Stare decisis is a legal
principle that reAuires cts to apply e.isting precedents to cases involving
similar facts. $n essence, it means to stand by decided cases.
f. Stare decisis $S %9T an absolute rule. Circumstances change over time. Thin1
about this B ,ith the advent of satellites, e@mail, etc, laws dealing with
communications generally revolved around the phone, written word, or radio
transmissions. /ou can see that over periods of time, legal precedents must
often change with them. :emember that laws can and do often change.
0owever, for the most part, it is usually done in a slow process.
g. =ecause of stare decisis, the law is both stable and predictable. Thus, similar
legal issues will have the same legal rules and principles applied to them.
h. Common law e.ists in every state e.cept 'ouisiana which has a legal system
based upon !rench law.
i. Common law is not perfect. To help rectify some of those wea1nesses, a
concept of eAuity was established.
C. ()uity a!
a. 2uring medieval times, chancellors were given the authority to prevent an
illegal act and to grant remedies other than awards of money. Thus, separate
cts were established that were 1nown as eAuity or chancery cts.
b. These courts could issue a court order reAuiring a person or company to
refrain from a particular act. This is 1nown as an injunction.
3.ample B & wants to do something. = doesn(t agree with what &
wants to do. = can petition the ct to get an injunction that prevents & from
doing the act. $f an injunction is granted to =, then & C&%%9T do the
act. $f & violates the injunction, & can be punished for contempt of court.
*. Statutory a!
a. $t is different from common law and eAuity.
b. & statute "statutory law# is a law that has been formally declared by a
legislature, as opposed to judge@made law.
c. :emember what we had mentioned earlier B that the '34$S'&TU:3
6&73S the laws.
a. 9n some occasions, treaties can be considered as part of the domestic law of
the US, often enforced in US cts.
+. Constitutional a!
a. :esults from the interpretation and application of a national or state
constitution.
b. :emember that besides the fed govt, each state also has its own constitution.
c. Still, you 6UST :3636=3: that the US Constitution is the supreme law of
the land "the entire country# and the US Sup Ct is the 0$403ST C9U:T in
the land. &fter the US Sup Ct, there is no other ct you can appeal to.
&. Administrative a!
a. This consists of the regulations "regs# that have been issued by administrative
agencies. "3.ample B the $nternal :evenue Service "$:S regs#.
The ,ederal Trade Commission
The !TC deals with issues that touch the economic life of every &merican. $t is the only
federal agency with both consumer protection and competition jurisdiction in broad
sectors of the economy. The !TC pursues vigorous and effective law enforcementD
advances consumers( interests by sharing its e.pertise with federal and state legislatures
and U.S. and international government agenciesD develops policy and research tools
through hearings, wor1shops, and conferencesD and creates practical and plain@language
educational programs for consumers and businesses in a global mar1etplace with
constantly changing technologies.
http)EEwww.ftc.govEftcEabout.shtm
The !TCFs enforcement wor1 is done through administrative proceedings and in federal
court actions. Congress has also given the !TC rule@ma1ing authority, which it has used
in a variety of industries. !inally, the !TC advises policy ma1ers through reports,
testimony and speeches, and advisory opinions. &ll formal !TC actions are coordinated
through the 9ffice of the Secretary.
http)EEwww.ftc.govEosEinde..shtml
& statue that is part of the !TC B !ederal Trade Commission building.
http)EElib.law.washington.eduEdocsE!TCGstatue.jpg
Seal of the !ederal Trade Commission
http)EEwww.e.treme@credit@report@repair.comEwp@contentEuploadsECH?HEH>EIHHp.@US@!ederalTradeCommission@Seal.svgG.png
Criminal and Civil a!
Criminal a!
?. The law may be bro1en down into C major categories B criminal and civil.
C. Criminal 'aw is almost entirely statutory. $t deals with acts that endanger the public
welfare.
<. The govt is the plaintiff "the party that brings the case to court B the accuser#.
>. The defendant "deft# is the party that is the accused. 3.ample B ;oe Smith commits a
robbery against 6ary ;ones. $n a criminal trial, the case will be usually 1nown as the
State v Smith "deft#, the People v Smith "deft#, etc. Since ;oe Smith not only harmed
6ary ;ones, he harmed the entire people or society. :emember that this is for a
criminal trial. $f a civil trial stems from this, the case would probably be labeled ;ones
v Smith.
J. &t this point, $ am steering away from the boo1 with regards to misdemeanors "misd#
and felonies "fel#. Since most of us are from %ew /or1 State "%/S# or the metro area,
and may become law enforcement or other occupational practitioners within this
state, $ am going to teach you what felonies "fel#, misdemeanors "misd# and violations
"viol# are under the %ew /or1 code of laws, also 1nown as "a1a# the %/S Penal 'aw.
The boo1 provides a good e.planation of the offenses, however, $ believe my
approach will be more effective. Some of this information can carry over into other
govt courses, and especially in criminal justice and criminal law courses.
-".$ T%( ,..$I"G $( /(GA/0I"G T%( "1S A$S
The laws of the state of %ew /or1 derive from what we call substantive law. The
substantive law of %ew /or1 comes in C parts) the %ew /or1 State Penal 'aw and the
%ew /or1 State Criminal Procedure 'aw.
%ew /or1 State Penal 'aw "%/S P'# B These are the laws of the state, definitions,
defenses, etc. They became laws cause the state legislature voted upon them to become
laws. This is one of the roles of the legislature@to ma1e laws. The %/S 'egislature is
similarly structured as the U.S. Congress. There are two legislative chambers@the %/S
&ssembly and the %/S Senate. $n the %/S P', there are < classifications of offenses @
felony, misdemeanor and violation. 'et(s deal with the laws from most serious to least
serious.
a. !elony "fel# B &n offense that is punishable by a term of imprisonment in
38C3SS of "more than# ? year, or death. =ottom line @ %ot e.actly ? year, it must
be 69:3 than ? year, even by a day. Some e.amples of fel are burglary, robbery,
rape, arson and grand larceny.
b. 6isdemeanor "misd# B &n offense which is punishable by a term of imprisonment
in e.cess of ?J days and up to and including e.actly ? year. =ottom line @ ?I days
up to and including e.actly ? year. Some e.amples of misd are simple assault,
petite larceny, and criminal trespass.
c. 5iolation "viol# B &n offense which is punishable by a term of imprisonment up to
and including ?J days. =ottom line B ?J days or less. Some e.amples of a viol are
trespass, harassment, and disorderly conduct.
d. 0owever, only fel and misd are considered C:$63S. This does not imply that
you can(t go to jail for a violation. /es, you can. &lthough it is generally not
the norm to sentence people to jail for a violation, it is common that a summons is
issued for the offense and a fine be imposed should the deft being found
guilty. &lthough we will not get into any great detail at this time, crimes are
specifically spelled out due to issues concerning burglary as well as the KStop,
Luestion and !ris1 'aw.K
%ew /or1 State Criminal Procedure 'aw "%/S CP'# B This is the administrative and
operational part of the law. Some aspects of it are)
a. The law of arrest.
b. ,arrants.
c. 2efines what is a police officer, peace officer, special patrolman, state university
police officer, etc.
d. Time limits from arrest to formally being charged.
e. KStop, Luestion and !ris1 'aw.K
4enerally, there are laws that e.ist on all levels of government @ local laws, county laws,
state laws and federal laws.
$n %/C, each borough "J boroughs @ 6anhattan, =ron., =roo1lyn, Lueens and Staten
$sland# has ? 2istrict &ttorney "2&# that is elected by the people. 2&s are technically the
chief law enforcement officer for the jurisdiction. $t is a figurehead position. They 29
%9T actually try "fight# the case. Those that help the 2&s are 1nown as &ssistant 2istrict
&ttorneys "&2&s#. &2&s &:3 %9T elected. They are simply 0$:32 by the 2&s
9ffice. &2&s are the people that actually prosecute criminal cases.
9n the fed level, criminal cases are prosecuted by US &ttorneys. US &ttorneys are
appointed by the Pres and approved by the Senate. Those that help the US &ttorneys are
1nown as &ssistant US &ttorneys. &sst US &ttnys are hired.
$f you had to compare)
2&s are similar to US &ttorneys.
&2&s are similar to &sst US &ttorneys.
Civil a!
Civil 'aw deals primarily with disputes bEw private individuals or corporations. &lthough
they may be handled in different cts, some types of civil matters are)
a. !amily "adoptions, name changes#.
b. 2ivorce.
c. Small claims.
d. %egligenceEaccidents.
:emember that crim law deals with offenses against the people of the state "for the
welfare of the state#. Civil law deals with issues of people against other people.
The Adversary System
Unli1e the e.ecutive and legislative branches, the judiciary is relatively passive. ,hat
that means is that they don(t create their own wor1. The cts must wait for cases or issues
to be brought before them in order for them to ta1e action.
9ur judicial system is 1nown as an adversarial system. ,hat that means is that it is based
on the assumption that the dogfight in the courtroom will somehow bring forth the truth.
The /ole o' the Courts
&s per the US Constitution "Cons#, the fed cts may hear only cases and controversies.
Thus, there must be a real conflict of interest B whether criminal or civil B bEw the parties.
=ottom line B something more than generaliMed grievances. The fed cts will not give
advisory opinions. ,hat this means is that neither Cong, the Pres or a private citiMen can
see1 an opinion from the cts on whether a proposed govt action is constitutional or not. &
case must be brought before the court in order for an issue to be considered. ,hat this
means is that the cts don(t give warnings about active laws or proposed laws. $f someone
feels that there is a problem with a law, the issue must be ta1en to ct. Thus, the cts are
passive.
The /ole o' the Jud2e
?. The judge is the presiding officer in the ct.
C. 0eEshe is an e.pert "or supposed to be# in all the issues that may be raised in ct.
<. The judge must act as a referee. 0e must maintain order and apply all legal
procedures and principles B such as the introduction of evidence.
>. The judge will also instruct the jury regarding the law that applies in the case and
discusses the possible verdicts the jury may reach. This is also 1nown as charging
the jury.
J. The judge will also pronounce the sentence should the deft be found guilty. Some of
the punishments a judge can give are jail, probation, fines, house arrest, time served,
counseling, rehabilitation and death.
=asically, there are C types of trials B ;ury and bench.
?. & jury trial is where the jury determines guilt or innocence and the judge acts as the
referee and imposes a sentence. $t is the most common form of a trial.
C. & bench trial contains a judge only "no jury#. Thus, a judge must do the part of a
judge as well as that of a jury.
The need to interpret the law has the effect of giving judges a degree of discretion in the
application of the law. ;ust as we have police discretion and prosecutorial discretion, we
also have judicial discretion, especially when it comes to giving out punishment. This
discretion is part of indeterminate "open@ended# v determinate sentencing "rigid, no
leeway#.
The 0ual Court System
?. The US has a dual ct system B a fed system and a state system.
C. The state cts are separated geographically. 0owever, the fed cts often overlap the state
cts.
<. The jurisdiction of a court is the right to hear a particular type of case. ,ithout
jurisdiction, a court has no authority to decide a case. !or e.ample B $f $ robbed a
deli, $ can be arrested for :obbery under the %/S Penal 'aw and tried in a state ct. $f
$ rob a US Post 9ffice, $ will be tried in a fed ct because the post office is fed
property.
>. 9ccasionally, state and fed cts share jurisdiction and the plaintiff can choose to sue in
either ct system.
J. The US Cons states that the jurisdiction of the fed cts may be based on subject matter
"cases arising under the Cons, fed laws, treaties, admiralty and maritime cases# or the
nature of the parties "ambassadors, consuls, the US as a party in a lawsuit, disputes
bEw C or more states and disputes bEw citiMens of different states#.
I. & cts jurisdiction may be original or appellate
N. 9riginal jurisdiction is 1nown as the trial cts. They determine the facts of the case as
well as the law that applies to them.
O. &ppellate jurisdiction handles appeals. They review the decisions of lower cts to
determine whether they applied the correct rule of law such as the admission of
evidence. :emember that lower courts KtryK cases. &ppellate courts do not KtryK
cases. Thus, in the lower courts, is where youFll see the true adversarial process @
lawyers battling it out, the presence of the victim, eyewitnesses, police officers, lab
technicians, e.pert witnesses, crime scene e.perts, etc.
P. The US Sup Ct has both original and appellate jurisdiction. 0owever, we must
remember that the US Sup Ct is the highest fed ct, the highest fed appeals ct, and the
highest ct in the entire US.
?H. $n cases that involve the US Cons, treaties, or Congressional law, an appeal may go
directly to the US Sup Ct from the highest state ct with jurisdiction over the case.
The Basic Ct Structure o' the ,ed Cts 'rom %i2hest to o!est is as ,ollo!s#
US Supreme Court "&ppellate Court#.
There is only ? US Sup Ct.
$t is located in ,ash, 2C.
US Court of &ppeals "&lso 1nown as the US Circuit Courts# "&ppellate Court#.
There are ?? US Courts of &ppeal spread throughout geographic regions in the US.
0owever, if you include the US Court of &ppeals for the 2ist of Columbia and the US
Court of &ppeals for the !ederal Circuit, you will have ?<.
US 2istrict Court "Trial Court#.
There are P> US 2istrict Courts spread throughout the US, ,ash, 2C, and US Territories,
Commonwealths and Possessions.
The State Courts
State courts "cts# are often organiMed in different ways. Some are)
a. ;ustice of the Peace.
b. Police Court.
c. County Court.
d. 2istrict Court.
e. 6unicipal Court.
&t this juncture, we(ll ta1e a little detour. =rowse over briefly what is written in the te.t
regarding state superior and trial cts. 0owever, we are going to learn about the %/S
Court System.
,rom %i2hest to o!est in "1S#
?. %/S Court of &ppeals)
a. $t is an appellate ct. "highest level of appeals cts.#.
b. $t is the highest ct in %/S.
C. &ppellate 2ivision)
a. $t is an appellate ct. "lowest "first# level of appeals cts.#.
<. Supreme Court)
a. $t is a trial court.
b. 0andles criminal cases. 0istorically it was felonies, but also
misdemeanors.
c. =3,&:3 B %/S Supreme Court is one of the lowest cts in the state. 2on(t be
fooled by the word supreme.
&ll other courts)
?. Criminal.
C. 2istrict.
<. Traffic.
>. !amily.
J. &nd others.
!or purposes of this course, $ just want you to 1now the < levels mentioned above @ %/S
Court of &ppeals, &ppellate 2ivision and Supreme Court.
The overwhelming majority of civil and crim cases are brought in state cts. %eedless to
say, they handle a huge volume of cases.
,e already 1now that fed judges are appointed by the Pres with the advice and consent of
the Senate. They serve for life. 0owever, the status of state judges is different. State
judges are often appointed or elected depending on the type of judgeship and the
jurisdiction.
The ,ederal Courts
There are C types of fed cts) Constitutional and 'egislative.
Constitutional Courts
?. 3stablished by Cong under the authority of the Cons.
C. The US Cons mentions ? Supreme Court and inferior cts that may be
established by Cong as necessary.
<. The Constitutional Cts are)
a. US 2istrict Ct.
b. US Ct of &ppeals "a1a US Circuit Ct.#.
c. US Sup Ct.
There are other specialiMed Constitutional Cts)
a. Ct of $nternational Trade.
b. Ct of Customs and Patent &ppeals.
e2islative Courts
?. Courts created by Cong under the authority of the Cons.
C. They are part of the inferior cts that Cong may create as necessary.
<. The 'egislative Cts are)
a. US Ct of 6ilitary &ppeals.
b. US Ta. Ct.
c. US Ct of 5eterans &ppeals.
d. !ederal Territorial Cts B 4uam, Puerto :ico, &merican 5irgin $slands and
%orthern 6arianas $slands. !/$ B These are territories of the US.
>. 'egislative ct judges are appointed the same way as Cons ct judgesD by the Pres with
the advice and consent of the Senate.
J. 0owever, there are differences. ;udges in Cons Cts have lifetime tenure. 'egislative
Ct judges( tenure is determined by Cong and varies from one ct to another.
US 0istrict Court 3There are 4+ o' them.5
?. They are the trial cts of the fed judicial system.
C. US 2istrict Cts hear crim and civil cases.
<. They are the cts of original jurisdiction B trial cts. They do not hear appellate cases.
>. 3ach state has at least ? US 2istrict Ct.
J. 'arger and more populated states have more than ? US 2istrict Ct.
US Court o' Appeals 3a6a US Circuit Courts5 7 3There are 1* o' them.5
?. There are?< US Ct of &ppeals spread throughout the country. ?? regions plus the
2istrict of Columbia and the !ederal Circuit. ?? Q ? Q ? R ?<.
C. They are the 1nown as the ?
st
appellate level.
<. They hear both crim and civil cases that are appealed from US 2istrict Cts wEin the
US &ppellate Cts jurisdiction.
>. :emember that these are appeals cts. They 29 %9T T:/ cases. $t $S %9T a
regular courtroom setting "no jury, victim, witnesses, etc#.
J. US Ct. of &ppeals usually consists of a panel of < judges.
I. The attorneys involved submit written arguments or briefs to the ct.
N. The attorneys have oral arguments before the ct and it is very limited in time.
O. &fter the case is heard, the judges confer privately before releasing a decision.
P. ,hy is the US Ct of &ppeals also 1nown as the US Circuit Ct- 4o bac1 in time
before the advent of cars and planes. There was no rapid travel other than the advent
of the railroad. Thus, the judges rode around the country "stage coach or railroad# to
cover certain jurisdictions to hear cases. $n essence, they did a circuit.
The US Supreme Court 3/emem8er9 !hen !e re'er to the 'ederal level9 it is the US
Sup Ct.5 3There is only 1 o' them.5
?. $t(s the nation(s highest ct.
C. $t is the highest fed ct.
<. $t(s the highest fed. app ct.
>. There is 9%'/ ? US Sup Ct and it is located in ,ash, 2C.
J. There are P justices on the ct. The head justice is 1nown as the Chief ;ustice. 0e is
the first among eAuals. The other judges are 1nown as &ssociate ;ustices.
I. They are appointed by the Pres pending the approval of the US Senate.
N. The US Sup Ct is the 9%'/ ct directly mentioned in the US Cons.
O. The US Sup Ct will handle issues involving)
a. The US Cons.
b. !ed laws.
c. Treaties
P. The ct will handle a variety of issues whether the case originally began in a fed or a
state ct. $n very rare circumstances can the US Sup Ct act in the capacity of a trial ctD
and that(s basically when there is a dispute bEw C or more states
?H. The session of the US Sup Ct runs from 9ctober @ ;une "sometimes ;uly#. $t
customarily begins on the ?
st
6onday in 9ctober.
??. The ct hears oral arguments 6onday @ Thursday for C wee1s per month.
?C. !ridays are devoted to conferences. Cases are discussed and voted upon. :eAuests for
appellate review are considered.
?<. The remaining C wee1s of the month are devoted to e.amining cases and writing ct
opinions.
?>. !/$ B The US Sup Ct justices don(t do all of this wor1 themselves. They have a
siMeable contingent of legal scholars wor1ing for them to conduct legal research and
to help write legal opinions.
.ral Ar2uments
?. The attorneys "attnys# that are scheduled to argue a case before the US Sup Ct must
first submit detailed written briefs so the justices can be familiar with the facts of the
case.
C. $f all goes well, the justices will hear the case. $n other words, they granted
certiorariD to obtain the records from a lower court so the case can be reviewed.
<. :emember that the US Sup Ct is an appellate ct. $t is %9T run li1e a typical trial.
There are no victims, witnesses, police officers, etc, present. 9%'/ &TT9:%3/S
!9: 3&C0 S$23 are generally present.
>. 3ach side has only a relatively short amount of time to present their caseD an average
of <H minutes per side. The time can be e.tended depending upon the comple.ity of
the case. %ot too much time, is it- Time restrictions are strictly enforced as a system
of lights on the lectern signals the attnys twice B when there are J minutes left and
when time e.pires.
J. ,hen attnys argue before the Ct, they better be on top of their game. The justices
often interrupt them during their oral arguments in order to get to the bottom of
various issues. The attnys must answer the justices and somehow remain focused at
their tas1 at hand.

Con'erences
?. &fter studying briefs and hearing oral arguments for several cases, the justices debate
the cases secretly in their !riday conferences.
C. There is no record 1ept of the discussions.
<. The Chief ;ustice "0ead justice of the US Sup Ct. 0e is 1nown as first among
eAuals# presents his views first. The other justices follow in descending order of
seniority. Thus, the newer justices give their opinions last.
>. ,hen a final vote is ta1en on a case, usually the order is reversed. The less seniority
justices vote first and the more seniority justices vote last.
.pinions
?. :a;ority .pinion#
a. The opinion of the justices that are in the majority ruling.
b. :emember that there are P justices, so there can(t be a tie. The closest vote that
there can be would be J v >. 0owever, there is an e.ception. ,hat happens if a
justice is not available "due to death# and it may be a while for a P
th
justice to be
appointed- $f there is a tie, then the decision of the lower court will stand.
c. The justice that writes the majority opinion must write it in a way so as to satisfy
the other justices that voted in the majority.
d. $f the Chief ;ustice is part of the majority ruling, he will either write the opinion
"especially in very important cases# or assign it to someone else in the majority
ruling.
e. $f the Chief ;ustice $S %9T part of the majority ruling, he will assign the writing
of the opinion to the ne.t highest seniority member that voted with the majority.
<. Concurrin2 .pinion#
a. ,hen justices that voted in the majority feel that the majority opinion did not
adeAuately e.plain why they voted as they did, they may write a concurring
opinion. The concurring opinion will state that they agree with the 23C$S$9% of
the case, but %9T !9: T03 S&63 :3&S9%S set forth in the majority opinion.
*. 0issentin2 .pinion#
a. 6ay be written by any justice that voted with the minority "the side that had lesser
votes and didn(t agree with the majority#.
b. &lthough the minority opinion may not have any immediate effect or any effect at
all, it serves as a record that may be referred to in the future.
,hen the US Sup Ct is in session, on several days of each month "usually 6ondays and
Tuesdays#, decisions of ct cases are announced. These written opinions are made
available to the public, press and other interested parties.
The role o' the Chie' Justice
?. The Chief ;ustice is first among eAuals. 0e presides over the court.
C. 0e has only one vote, as does the other O justices.
<. 0owever, he has some added clout in his ability to assign the writings of opinions,
especially if he voted with the majority.
>. $f the 0ouse impeaches a Pres, the Chief ;ustice shall preside over the trial that is
conducted in the Senate.
Brin2in2 a Case Be'ore the Court
?. &lmost all cases brought to the US Sup Ct fall wEin its appellate jurisdiction. Thus,
the cases came from lower cts on appeal.
C. Cases reach the US Sup Ct usually by a writ of certiorari. & writ is an order directing
a lower ct to send a record of the case to the US Sup Ct for review.
<. =asically, the wheels are put in motion in the following manner)
a. The procedure begins when a losing party in a fed ct of appeals, or the highest
state ct with jurisdiction over the case, petitions the US Sup Ct for a writ of
certiorari.
b. $f at least > of the justices agree that there is a need for the US Sup Ct to review
the case, the writ will be issued. This is 1nown as the rule of four.
The Court=s $or6load
?. The number of certiorari petitions has grown over the years. 2uring the CHHH term of
the US Sup Ct, there were almost P,HHH petitions. 0owever, only a small fraction is
accepted to be e.amined further. $n its CHHO term, only O< full written opinions were
issued B a dramatic decrease over the years.
C. 6any of the petitions are sent by prisoners concerning civil liberties and civil rights.
Selection o' ,ederal Jud2es
?. $t is a very important role that the Pres has.
C. $t enables the Pres to shape the power of the judiciary ":emember the notion B to the
victor go the spoils and why you put people in place that thin1 li1e you do#.
<. The individuals selected will influence the &merican legal system for many years
long after the Pres is gone.
>. :emember, most fed judges are appointed for life. They are appointed by the Pres
with the advice and consent of the Senate.
Selectin2 the Jud2es 'or o!er ,ederal Courts
?. There are no Cons reAuirements for serving on the fed cts. B not even a reAuirement
to be an attorney or to have prior judicial e.perience.
C. 0owever, Pres have always chosen lawyers for fed ct appointments. $n recent
decades, US Sup Ct nominees have had some form of prior e.perience in a state or
fed appeals ct.
<. Some judges are chosen with the help of senatorial courtesy. ;udges from a particular
state are selected jointly by the Pres and the senior senator from that state who
belongs to the Pres party.
>. !or e.ample, during a 2emocratic administration, candidates for lower ct
appointments are approved by the 2emocratic senator from the state in which the
judge is to serve. $f there are no 2emocratic senators, the Pres is free to consult with
2emocratic representatives from that state, with the state governor "if heEshe is a
2emocrat#, or with state party officials.
J. The Senate ;udiciary Committee "comte# plays an important role in the nomination
process. &lthough most choices are routinely approved, the comte will sometimes
hold hearings in which supporters and non@supporters will testify.
I. The Senate ;udiciary Committee can also delay approval of the Pres choices by
slowing the pace of nomination hearings.
Judicial Appointments
?. :emember that to the victor, go the spoils.
C. This is especially true when it comes to Pres appointments.
<. 0owever, politics ma1es it difficult. !or e.ample, if you have a :epublican Pres and
? or more of the 0ouses of Cong "0ouse or Senate# is controlled by the 2emocratic
Party, this often ma1es it difficult to get business done Auic1ly.
>. 0owever, if the Cong "0ouse or Senate# has a majority party that(s the same as the
Pres party, it ma1es things a lot easier to get accomplished.
Appointin2 US Supreme Court Justices
?. 9ther than sending &merican troops into harms way, the appointment "appt# of US
Supreme Court justices is probably one of the most difficult decisions a Pres has to
ma1e.
C. ;ustices have life tenure B a Pres is limited to C terms.
<. Thus, many US Sup Ct justices will serve many years long after the Pres has left
office.
>. Some factors in choosing a US Sup Ct justice)
a. &ge.
b. :eligion.
c. :ace.
d. Place of residence.
e. Political party.
f. ;udicial e.perience.
g. ;udicial philosophy.
J. The political party and judicial beliefs are especially important in the appt of US Sup
Ct justices. The Pres will almost always appt a member of his own party whose
judicial philosophy matches his own. :emember, why would you appt someone that
thin1s Auite differently than you do-
Con'irmation and Tenure
?. The same procedure is followed in confirming nominations to the US Sup Ct as in
confirming appts to the lower fed cts.
C. The main difference is that senatorial courtesy does not apply. The Pres is free to
ma1e the initial selection of a nominee.
<. 9nce that choice is made, the nomination is sent to the Senate, which must approve
the candidate by a majority vote.
>. Senators that are not members of the Pres political party often vote against the
nominee in the hope that their party(s candidate will win the upcoming election and
thus be able to fill the vacancy on the court.
The ,unctions o' the Judiciary
The main function of the judiciary in general and also the US Sup Ct is the following)
a. $nterpretation of statutes @ Statutory interpretation involves deciding the meaning
and intent of a statute enacted by the legislature.
b. Constitutional provisions B $ssues such as what is due process or interstate
commerce.
c. ;udicial review B 9ccasionally, cts will e.ercise their ultimate power B the power
of judicial review to declare a law unconstitutional.
Judicial /evie!
?. The &merican judiciary has the power to decide whether the acts of the e.ecutive and
legislative branches are in conflict with the Cons.
C. $f they are in conflict, the cts have the power to declare them void. This is the essence
of judicial review.
<. ;udicial review ma1es the cts an important element in the &merican govt system.
>. The US Cons gives the US Sup Ct the authority to review the decisions of state cts.
J. ,hat this basically amounts to is that the US Cons, fed statutes and treaties are the
supreme law of the land.
I. %o law or provision, regardless of jurisdiction, can not supersede what is written in
the US Cons as well as the decisions of the US Sup Ct.
N. &lthough the power to e.ercise judicial review over the Cong or the Pres is not
e.pressly written in the Cons, it was decided in the US Sup Ct case of 6arbury v
6adison.
O. This ct case essentially stated that the fed cts could use the power of judicial review to
declare an act of Cong unconstitutional. &n issue in the case was the reAuirement that
something be performed. $n order to see this happen, the US Sup Ct was to compel
the action by the issuance of a writ of mandamus B a ct order to a public official to
perform an act that is legally reAuired.
P. 2espite the significance of the 6arbury v 6adison case, judges are generally
reluctant to e.ercise the power of judicial review, especially to acts of Cong.
/estrictions on the Court
?. The Cons does place some restrictions upon the US Sup Ct. and the fed cts.
C. 9nce appointed, a fed judge sits on a constitutional ct for life.
<. 0is salary cannot be reduced during this time.
>. $mpeachment and conviction due to treason, high crimes "felonies# and misdemeanors
can only remove a fed judge. Unless, of course, the judge Auits, retires, or is unfit for
duty due to medical reasons, etc.
J. &s we already 1now, Cong rarely invo1es this power of impeachment.
I. ,e must remember that the cts are passive entities. Unli1e Cong, which can consider
an issue whenever it chooses to do so, the fed cts must wait for a lawsuit to arise.
N. Sometimes the US Sup Ct may deny a writ of certiorari, preferring to wait for a later
case dealing with the issue at hand "The US Sup Ct case of :oe v ,ade *dealing with
abortion+, had been brought before the US Sup Ct on several occasions prior to its
decision in ?PN<#.
O. ;udicial philosophy may also play a role in restricting the power of judges and the cts.
;udicial self@restraint helps to place limits on the ct. ;udicial self@restraint holds that
the judges should e.ercise great self@control in using their judicial power and should
generally defer to the policies of the elected branches of govt. =ottom line B &llow
the other C branches of govt to sort out an issue first, if possible, before getting the cts
involved. This doctrine is accepted in varying degrees by different judges.
P. Some judges believe in an opposite approach B judicial activism. &dvocates of this
philosophy are more li1ely to declare actions of the other branches unconstitutional
and are more inclined to have the cts set policy for the nation.
?H. Cons issues are also based upon the interpretation of the Cons itself. Some believe
that te.tualism "the interpretation of cons provisions according to the meaning of the
language at the time the document was written# should be the prevailing view.
??. $n contrast, others believe that the Cons is a living document or living Cons. Thus, the
Cons must be 1ept up to date and that the judges are responsible for performing this
tas1.
The US Supreme Court# A Brie' %istory
The history of the US Sup Ct has < distinct periods)
?. ?OHH @ ?OIJ
1 The US Sup Ct was concerned primarily with issues related to federalism B the proper
balance bEw the powers of the national govt and those of the states.
C. ?OIJ @ ?P<O
This was period of great industrial growth in the US. &long with this growth came the
problems with an industrial society. There were many laws and issues dealing with
child labor, minimum wages, ma.imum hours, and the right to form labor unions. The
US Sup Ct invalidated many of these laws based upon Cons grounds.
<. ?P<O @ Present
This era focused predominately on civil liberties and civil rights. $ssues surrounded
freedom of speech and religion, rights of criminals, race and gender.