Ch.

10 The Judiciary

By: Sally and Mariana

Overview of the chapter
The Constitution and the Creation of the Federal Judiciary

The American Legal System (concepts of civil and criminal law)

The Federal Court System (composed of specialized courts, district courts, courts of appeals, and Supreme
Cour)

How Federal Court Judges are Selected (all appointment made by the president and subject to Senate
confirmation)

The Supreme Court Today

Judicial Philosophy and Decision Making

Judicial Policy Making and Implementation

 The Constitution and the Creation of the
Federal Judiciary
Framers devoted little time to write Article III (created the judicial branch of govt)
judiciary posed little of threat of tyranny
Alexander Hamilton argued that judiciary would be least dangerous in Federalist No.78
Argues that independence of judges was needed to guard the Constitution and rights of individual
Anti-Fed feared giving too much power to the Supreme Court
Article III Section 1: gave Congress the authority to establish other courts as it saw fit
Article III Section 2: explains the Courts original and appellate jurisdiction
Article III Section 3: defines treason, and mandates (at least 2 witnesses)
John Jay was the first Chief Justice
 The Judiciary Act of 1789
Established the Supreme Court, but left to Congress the authority to create lower federal courts as needed.
Established the basic 3 tiered structure of federal court system

Supreme Court(6):
1 Chief Justice &
5 associate justices

3 Circuit courts(court of appeals):

1 district court judge &

2 itinerant Supreme Court justices (met twice a year)

Federal District Courts

federal judge
Judicial Review
allows the judiciary to review acts of
the other branches of gov and states
- Judges used this occasionally:
only used about 140 times to
strike down acts congress
- used more frequently (over
1200 times) to invalidate acts of
state legislatures
- 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
- established by the Marshall
Court for itself and posterity in
Marbury v. Madison (1803).
 The Marshall Court: Marbury v.
Madison(1803) and Judicial Review
Marshall: appointed chief justice by President John Adams
Strongly believed that Court should speak as a Court not
as 6 individuals
in the final hours of the Adams administration, William
Marbury was appointed as a justice of the peace
James Madison refused to deliver Marburys commission, so
Marbury petitioned for a writ of mandamus compelling
delivery of the commissions.
Marburys long-term effect: allow the Court to have the final
say in what the Constitution means
 American Legal System
Dual system : Federal court system & judicial system of 50 states (3 tiered)
Bottom: Trial courts
Middle:Appellate courts
Review on appeal only cases that already have been decided in lower courts
Top: Supreme Court
A dual system comprised of the federal court system and the judicial systems of fifty states.
Jurisdiction: the authority to hear and decide the issues in that case
Conferred based on issues, the amount of money involved in a dispute, or type of
offense
Original jurisdiction: courts authority to hear disputes as a trial court and may occur on
federal or state level
Appellate Jurisdiction: courts ability to review cases already decided by trial court
The law is composed of both
Criminal: regulates individual contact and enforced by state AND national governments)
civil aspects: regulate the conduct and relationships between private individuals or
companies
The Federal Court System
Constitutional Courts: the federal district courts, circuit courts of appeals, and the
Supreme Court
due to their creation by the U.S. Constitution.
Judges over these courts are nominated by president and serve lifetime terms
Additionally, legislative courts are set up by Congress for specific purposes
 District Courts
Has the original jurisdiction over only specific types of cases
Cases that involve the federal government as a party.
Cases presenting a federal question based on a claim under the Constitution, a treaty with
another nation, or a federal statute.
Cases involving civil suits in which citizens are from different states, and the amount of money
at issue is more than $75,000.
Unresolved cases can be heard by the Courts of Appeals and then the Supreme Court.
Courts of Appeals
last resort for almost all federal litigation
Try to correct errors of law and procedure that have occurred in lower courts
Stare decisis: reliance on past decisions or precedents to formulate decisions
Supreme Court
Center of highly controversial issues that have yet to be resolved
Acts as the final interpreter of US Constitution
ensures uniformity, resolves conflicts among state, and maintains the supremacy of
national law
Nomination to the Supreme Court
Justices of the Supreme Court are nominated by the president and
confirmed by the Senate

POLITICAL PREFERENCE RELIGION COMPETENCE

Presidents typically nominate
those with the same political
views as them
REWARDS
Many of those appointed are
personal friends of the
president
The majority of those
appointed have been from a
traditional Protestant faith
Traditionally, there is a
Catholic and Jewish seat on
the Court
Recently, there have been
more Catholics serving on the
Court then ever before
(Roberts, Scalia, Kennedy,
Thomas, and Alito
Nominees are expected to
have judicial or government
experience
RACE, ETHNICITY, AND GENDER
As of 2006, there have only
been two African Americans
and two women on the Court
 The Confirmation Process
INVESTIGATION
Names of nominees are first sent to
the Federal Bureau of Investigation
(FBI) for a background check
The Senate Judiciary Committee
asks each nominee to complete a
questionnaire detailing previous
work, judicial opinions, judicial
philosophy, speeches, and all
interviews ever given to the press
LOBBYING BY INTEREST GROUPS
Interest groups may encourage
nomination (i.e. feminist groups
urging the nomination of a female
justice)
THE SENATE COMMITTEE HEARINGS AND SENATE VOTE
Senators ask nominees probing questions
Once the hearing is over, the committee present
their findings to the Senate and a vote takes place
 Deciding to Hear a Case
About half of the causes heard by the Court deal with issues raised by the Bill of Rights

WRITS OF CERTIORARI AND THE RULES OF FOUR

All cases presented to the Court must:

Come from a U.S. court of appeals, a special three-judge district court, or a state court of last resort
Involve a federal question

Rule of Four
When at least four justices vote to hear a case

CASES DENIED BECAUSE OF

Lack of a federal issue

Party lacks standing
Supreme Court agrees with a lower courts decision
Hearing and Deciding the Case
1. Once the case is accepted and after briefs and amicus briefs (information about the case) are
submitted, ORAL ARGUMENTS begin--attorneys are given half an hour each to present their cases
during the oral argument

2. JUSTICE CONFERENCE AND VOTE--justices meet once a week to discuss the case where each justice
shares their thoughts on the case in order of seniority

3. OPINIONS DRAFTED--a formal opinion is drafted after the Court has reached a decision

4. OPINION FINALIZED AND ANNOUNCED--negotiations often take place when finalizing the opinion
How the Justices Vote

BEHAVIORAL CHARACTERISTICS: childhood experiences, religious values, education, earlier jobs, and
political party loyalties are likely to influence a justices decision

THE ATTITUDINAL MODEL: a justices decision typically follows their preference toward public policy (i.e. a
liberal justice is more likely to decide an abortion case in favor of a pro-choice view than a conservative
justice)

PUBLIC OPINION: justices watch T.V. and read newspapers and doing so may be influenced by general public
opinion
Judicial Philosophy, Original Intent, and
Ideology
JUDICIAL RESTRAINT: courts should allow the decisions of other branches to stand, even when they offend a
judges principles

JUDICIAL ACTIVISM: judges should use their power broadly to further justice, especially in equality and
personal liberty

STRICT CONSTRUCTIONIST: the Constitution should be interpreted as it was written and intended by the
founding fathers
JUDICIAL POLICY MAKING AND
IMPLEMENTATION
All judges make policy (i.e. desegregation in the 1954 Brown v Board ruling)
The Supreme Court has no power when it comes to implementing their decisions, only the Executive
Branch can enforce the Courts decisions
How well a decision is implemented often relies on how well crafted of popular it is
Deep Questions
How are the
courts divided?
Did the founding fathers want
the judiciary branch to have as
much power as it does today?

How and why are the

state and federal
systems parallel?