The Judiciary Lecture 12 February 18, 2008 Pol 1101 The Judicial Branch The Constitution, Article III, section 1: The judicial Power of the United States, shall be vested in one <a href="/keyword/supreme-court/" >supreme court</a> , and in such inferior Courts as the Congress may from time to time ordain and establish. According to Madison's notes, the Philadelphia convention devoted little time to the judicial branch Hamilton, Federalist No. 78 ... the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the constitution; because it will be least in a capacity to annoy or injure them. The executive not only dispenses the honours, but holds the sword of the community; the legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated; the judiciary, on the contrary, has no influence over wither the sword or the purse; no direction either of the strength or the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. The Judicial Branch The judiciary was constructed to be of a wholly different character than the Congress and the presidency. 1. Judges and justices have life terms (or during good behavior) that provide for a great deal of judicial independence 2. Non-elected status allows the judiciary more leeway than the other branches to protect minority rights and interests Traditionally, courts have structural limitations that legislatures and executives do not. 1. Courts must wait for actual controversies to come to them 2. Courts cannot provide general relief to constituencies. They can only provide specific relief to litigants The Judicial Branch Originally when the government moved to the District of Columbia in 1800, Congress forgot to include any space for the <a href="/keyword/supreme-court/" >supreme court</a> . Nowadays, despite the traditional limitations on courts, the American judiciary is influential. Marbury v. Madison (1803) established the right of judicial review in which the Court can overturn actions of the legislature it deems unconstitutional, a sweeping authority 1. The federal judiciary can determine the constitutionality of laws passed by state legislatures and Congress 2. Although judicial review was used sparingly in the early years of the Republic, this link to the Constitution provided for what de Tocqueville called the immense political power of American judges. The Judicial Branch Alexis de Tocqueville also noted that in America all political questions become legal questions sooner or later. Example: the 2000 presidential election, when more than 50 lawsuits were filed after the election, with the <a href="/keyword/supreme-court/" >supreme court</a> ending the election by ordering a halt to the manual recounting of votes in Florida The role played by the courts marks the American political system apart. No other nation grants so much authority and political power to the judiciary. Americans are more willing than others to trust court decisions How the Judicial Branch works Federal District Courts Account for bulk of work in judicial system In 2001: 94 federal district courts ~ limited to states lines ~ each state has at least one ~ big states (California, Texas, New York) have four Have original jurisdiction over specific types of cases District Courts Each federal judicial district has a U.S. attorney. This individual is nominated by the president and confirmed by the senate. The attorney is that district's chief law enforcement officer. They have a considerable amount of discretion as to whether they pursue criminal or civil investigations or file charges against individuals or corporations. District Courts Controversy over alleged political influence in the firing of eight Republican U.S. attorneys: Dec. 2006 The White House approves all U.S. attorneys, who function as the federal government's chief prosecutors in 93 jurisdictions around the country. As political appointees, they serve &quot;at the pleasure of the President,&quot; and can be replaced, at any time for any reason. But group firings in the middle of a presidential term are highly unusual. The administration claimed the firings were necessary because of &quot;performance-related&quot; issues. But six of the dismissed prosecutors had won outstanding evaluations for competence. Those fired included an Arkansas U.S. attorney to make way for Timothy Griffin, a prot g of White House political guru Karl Rove. The Courts of Appeals The losing party in a case heard and decided in a federal district court can appeal the decision to the appropriate court of appeals. 11 numbered circuit courts Twelfth, D.C. Court of Appeals Handles most appeals involving federal regulatory commissions and agencies Thirteenth, U.S. Court of Appeals for the Federal Circuit Deals with patents and contract and financial claims against the federal government Have no original jurisdiction Try to correct errors of law and procedure that have occurred in the lower courts or administrative agencies Hear no new testimony. The Federal Court System The Judicial Branch Nowadays the courts must balance their increased political role with the valuable perception that the judiciary is a nonpolitical branch of government. A. Courts seek to reinforce the nonpolitical perception by tying their decisions to the Constitution and its principles as well as by relying on previous court decisions, or precedents. B. Precedents can be viewed as the institutions through which the goals of individual justices must be filtered. 1. In some instances, justices will overturn precedent in order to fulfill their policy goals. 2. But in others justices might drop their short-term policy goals in an effort to uphold the doctrine of stare decisis --following past precedent. 3. In Dickerson v. United States (2000), Chief Justice Rehnquist asserted that precedent should be adhered to despite his reservations about the issue at hand. The Judicial Branch Increases in Court power have recast the Court's role in the separation of powers A. Compared to Congress and the president, the Court is ill-equipped to compete in the separation of powers 1. Presidential nomination and Senate confirmation of federal judges and justices allows the other branches key control over the composition of the judiciary 2. Congress and the president can alter the structure and composition of the judiciary by law The Judicial Branch Increases in Court power have recast the Court's role in the separation of powers B. Changes in Court politics have allowed the judiciary some leverage over the legislative and executive branches 1. Although judicial review was used sparingly in the nineteenth century, its use has increased greatly 2. A big change in the Court's agenda--its increased willingness to hear cases on political questions--has allowed the judiciary some substantive control over the politics of the other branches of government How Federal Court Judges Are Selected Often a very political process Judges nominated by president and confirmed by Senate Can reflect the ideological stamp of the president Because judicial positions go to those who demonstrate faithful service to the party, the courts are staffed by individuals who are deeply involved in politics Senatorial Courtesy A process by which presidents, when selecting district court judges, defer to the senator in whose state the vacancy occurs. Who Are Federal Judges? Typically they have held other political offices. For example, state court judge or prosecutor Most have been involved in politics White males tend to dominate Characteristics of District Court Appointees from Carter to Bush The <a href="/keyword/supreme-court/" >supreme court</a> Decisions of the court of appeals are binding on only the district courts within the geographic confines of the circuit. Decisions of the <a href="/keyword/supreme-court/" >supreme court</a> are binding throughout the nation and establish national precedents. Reliance on past decisions or precedents to formulate decisions in new cases is called stare decisis. Allows for continuity and predictability Appointments to the U.S. <a href="/keyword/supreme-court/" >supreme court</a> Nomination Criteria Competence Ideology or Policy Preference Strict constructionist: an approach to constitutional interpretation that emphasizes the Framer's original intentions. Pursuit of Political Support from Various Groups The <a href="/keyword/supreme-court/" >supreme court</a> Confirmation Process Investigation Lobbying by Interest Groups Senate Committee Hearings Senate Vote Interest Groups The <a href="/keyword/supreme-court/" >supreme court</a> Today: Deciding to Hear a Case The total number of cases filed in the <a href="/keyword/supreme-court/" >supreme court</a> increased from 7,496 filings in 2004 Term to 8,521 filings in the 2005 Term--an increase of 13.7 percent. Not always the norm 1940s fewer than 1000 cases filed annually During the 2003-2004 term, 90 cases were argued and 73 signed petitions were issued. Modern period, many of the cases have involved Bill of Rights issues <a href="/keyword/supreme-court/" >supreme court</a> Caseload, 1950-2004 Terms What Do <a href="/keyword/supreme-court/" >supreme court</a> Clerks Do? <a href="/keyword/supreme-court/" >supreme court</a> clerks are among the best and brightest recent law school graduates. Almost all first clerks for a judge on one of the courts of appeals. After their <a href="/keyword/supreme-court/" >supreme court</a> clerkship, former clerks are in high demand. Firms often pay signing bonuses of up to $80,000 to attract clerks, who often earn over $130,000 their first year in private practice. Tasks of a <a href="/keyword/supreme-court/" >supreme court</a> clerk including the following: Perform initial screening of the 9,000 or so petitions that come to the Court each term Draft memos to summarize the facts and issues in each case, recommending whether the case should be accepted by the Court for full review Write a &quot;bench memo&quot; summarizing an accepted case and suggesting questions for oral argument Write the first draft of an opinion Be an informal conduit for communicating and negotiating between other justices' chambers as to the final wording of an opinion How Does a Case Survive the Process? Characteristics of the cases the Court accepts: The federal government is the party asking for review. Solicitor General The case involves conflict among circuit courts. The case presents a civil rights or civil liberties question. The case involves ideological and/or policy preferences of the justices. The case has significant social or political interest, often show by the presence of interest group amicus curiae briefs (&quot;friend of the court-- someone, who offers information on a point of law or other aspect of the case to assist the court in making a decision Amicus Curiae Briefs in an Affirmative Action case: Grutter v. Bolinger and Gratz v. Bolinger (2003) Table 10.7 Judicial Philosophy and Decision Making Judicial restraint: A philosophy of judicial decision making that argues courts should allow the decisions of other branches of government to stand, even when they offend a judge's own sense of principles. Judicial activism: A philosophy of judicial decision making that argues judges should use their power broadly to further justice, especially in the areas of equality and personal liberty. The <a href="/keyword/supreme-court/" >supreme court</a> and the American Public Judicial Policy Making and Implementation Policy making: More than one hundred federal laws have been declared unconstitutional. Ability to overrule itself Judicial Implementation: Refers to how and whether judicial decisions are translated into actual public policies affecting more than the immediate parties to a lawsuit. Table 10.5