The Judiciary System

Chapter 16

State of the Union Address

What do know about the State of the Union Address. Why does the President give this speech every year?Who attends the address? What topics are typically covered in the speech?

Article. II. Section. 3.: “He shall from time to time give to the Congress Information of the State of the Union”

Historyhttp://www.c-span.org/video/?c38714/clip-state-union-address-program

2014 State of the Union

As you watch the video complete the chart on the handout.

Which issues did President Obama discuss during his speech? What actions did he propose to take?

● Tomorrow in class you will be researching these proposals to see what was done / not done / successes / failures.

http://www.c-spanclassroom.org/Video/1689/2014+State+of+the+Union+Address.aspx

How many figures can you identify by name is this picture?

1. Clarence Thomas2. Antonin Scalia3. John G. Roberts4. Anthony Kennedy5. Ruth Bader Ginsberg6. Sonia Sotomayer7. Stephen G. Breyer8. Samuel A. Alito9. Elena Kagan

left to right, front to back

So here we are again... NAME THEM!

http://www.supremecourt.gov/about/biographies.aspx\

Supreme Court Then...

Federalist # 78 Whoever attentively considers the different departments of power must perceive, that, in a

government in which they are separated from each other, 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 honors, 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 either the sword or the purse; no direction either of the strength or

of 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.” – Alexander Hamilton

Do you agree with Hamilton’s statement about the Judicial Branch being the least

dangerous?

Supreme Court Now... 

What is the job of the Supreme Court?

Well, what do they do...

Executive Branch: Article II

    So...

Legislative Branch: Article I

    So...

Judicial Branch: Article III

    So...

Constitution

Read Article III: Keep in mind the following---

Job/Responsibility?

Term Length?

Requirements?

Size?

Number of different courts?

Role of Judicial Branch

(Comparison)US●Judges play a large role in making public policy (how?)●Exercise the power of Judicial ReviewoExpanding rights and entitlements during 60s & 70soInterpret the lawoChief Justice presides over trials of presidential

impeachment

Britain●Parliament is supreme

Australia, Canada, Germany, India●Independent Judiciary

Judicial Review

●Courts’ chief weapon in checks and balances.

oIt is the power of the courts to declare laws unconstitutional.

●Marbury v. Madison 

oDoctrine of Judicial Review

oChief Justice John Marshall

●McCulloch v. Maryland

oNecessary and Proper Clause to establish bank

oSupremacy Clause of Federal law

Judicial Review

●These cases established:oThe Supreme Court could declare an act of Congress

unconstitutionaloSo what is happening? -- SC growing in __________.

●Other important cases to know

oGibbons v. Ogden – fed gov could regulate

commerce – C.J. Marshall

oDred Scott – Blacks were not citizens – C.J. Taney

Judicial Review cont.●Judicial Review has become very controversial

Two competing views

1. Judicial Restraint (aka Strict Constructionist): judges should

confine themselves to applying those rules that are stated in or

clearly implied by the language of the Constitution

2. Judicial Activism (aka Loose Constructionist): judges should

discover the general principles underlying the Constitution and its

vague language amplifies those principles on the basis of some

moral or economic philosophy & applies them to cases.

- Brown v. Board of Education

- Roe v. Wade

* Eugene Rostow Article - Is Judicial Review undemocratic?

Justice Scalia on "60 Minutes"

Questions: Copy these down in your notes and be prepared to discuss them1. What is originalism?2. What is Scalia's issue with Judicial Activists?3. How have some people reacted to Scalia and his views?4. What does Scalia have to say about "progress"5. According to Scalia, what is the purpose of the Constitution?6. What are Scalia's views on flag burning?7. Who is one of Scalia's best friends? Why is this surprising?8. Do you agree or disagree with Scalia's view? Why? Explain...

http://youtube.com/v/ahf17gGdtao

The New Yorker "Five to Four" Article

The Nature of the Judicial System

●Introduction:oTwo types of cases:

Criminal Law: The government charges an individual with violating one or more specific laws.

Civil Law: The court resolves a dispute between two parties and defines the relationship between them.

oMost cases are tried and resolved in state, not federal courts. Cases of burglary, divorce, suits between two individuals of

the same state. BUT, most cases heard by the federal courts to originate in

district courts

The Nature of the Judicial System●Participants in the Judicial System

oLitigants Plaintiff—the party bringing the charge Defendant—the party being charged Jury—the people (normally 12) who often decide the outcome

of a case Standing to sue: plaintiffs have a serious interest in the case;

have sustained or likely to sustain a direct injury from the government

Justiciable disputes: a case must be capable of being settled as a matter of law.

oClass Action Suit when many people consolidate and submit a lawsuit

Historical Eras of the Supreme Court1789 - Civil War (1861)

●focus: National vs. State Relationshipofederal vs. state governments in who is allowed to do whatoMarbury v. Madison (Jud. Rev), McCulluch v. Maryland (supr. and

elas clauses), Gibbons v. Ogden (gov regulate interstate commerce), Dred Scott (gov decides who is a citizen.

Civil War to 1930s●focus: Regulation of Economy

oLaissez Faire approach vs. Regulation Tended to be business friendly and loose using 14th

Amendment to protect corporations and propertyoEra of the birth of Judicial Activism: applying Constitution to the

"Now"In both eras the Supreme Court viewed civil rights very narrowly

Historical Eras of the Supreme Court1936 - Present●focus: protection of personal

libertiesomovement away from business

regulation and focus individual rights and liberties seen even more by Chief

Justice Earl Warren redefinition of relationship

between government and its' citizens

●American Civil Liberties Union (ACLU) instrumental in influencing 1st Amendment cases

●Affect of public opinion on the Supreme Court?

Court Packing

The Nature of the Judicial System

●Participants in the Judicial SystemoGroups

Use the courts to try to change policies Amicus Curiae briefs used to influence the courts

“friend of the court” briefs used to raise additional points of view and information not contained in briefs of formal parties

Done most often by interest groups and lobbyistsoAttorneys

800,000 lawyers in United States today Legal Services Corporation: lawyers to assist the poor Access to quality lawyers is not equal.

The Structure of the Federal Judicial System

The Structure of the Federal Judicial System

District Courts (91 federal courts)oOriginal Jurisdiction: courts that hear the case

first and determine the facts - the trial courtoDeals with the following types of cases:

Federal crimes Civil suits under federal law and across state

lines Supervise bankruptcy and naturalization Review some federal agencies Admiralty and maritime law cases Supervision of naturalization of aliens

The Structure of the Federal Judicial System

Courts of AppealoAppellate Jurisdiction: reviews the legal issues in cases brought

from lower courtsoHold no trials and hear no testimonyo12 circuit courtsoU.S. Court of Appeals for the Federal Circuit – specialized casesoFocus on errors of procedure and law

Appellate courts do not decide an appeal by taking new evidence or reassessing the credibility of the witnesses who testified in the trial court. Rather, they review the written record to determine if the trial court properly interpreted the law and used the correct procedures when considering the case.

The Structure of the Federal Judicial System

The Structure of the Federal Judicial System

The Supreme Court●Ensures uniformity in interpreting national laws, resolves

conflicts among states and maintains national supremacy in lawo9 justices – 1 Chief Justice, 8 Associate JusticesoSupreme Court decides which cases it will hear—controls

its own agendaoSome original jurisdiction, but mostly appellate jurisdictionoMost cases come from the federal courtsoMost are civil casesoStrongest type of opinion is a unanimous positionoHas overturned over 100 laws in its history

The Structure of the Federal Judicial System

●POWER OF THE SUPREME COURT SEEN VIA:othe number of laws it has declared unconstitutionalothe number of previous cases that have been

overturnedothe way they correct previous heard cases via different

remedies (which have become more overarching and expansive).

othe number of executive orders they have overturned

ALL EXAMPLES OF THE POWER OF JUDICIAL REVIEW!

The Courts as Policymakers●Accepting Cases

oUse the “rule of four” to choose casesoIssues a writ of certiorari to call up the caseoSupreme Court accepts few cases each year

●Dual court system in US: oState and Federal

The Politics of Judicial Selection

●Presidents appoint members of the federal courts with “advice and consent” of the Senate.

●The Lower CourtsoAppointments handled through Senatorial Courtesy:

Unwritten tradition where a judge is not confirmed if a senator (most often the senior senator) from the state where the nominee will serve opposes the nomination

Has the effect of the president approving the Senate’s choice

oPresident has more influence on appellate level

The Politics of Judicial Selection

●The Supreme CourtoFewer constraints on president to nominate persons to

Supreme CourtoPresident relies on attorney general and DOJ to

screen candidateso1 out of 5 nominees will not make itoPresidents with minority party support in the Senate

will have more difficulty. oChief Justice can be chosen from a sitting justice, or

as a new member to the Court

The Politics of Judicial Selection

The Backgrounds of Judges and Justices

●Characteristics:oGenerally white malesoLawyers with judicial and often political

experience

●Other Factors:oGenerally of the same party and ideology as

the appointing presidentoJudges and justices may not rule the way

presidents had hoped they would have.

The Courts as Policymakers●Accepting Cases (continued)

oThe Solicitor General: a presidential appointee and third-ranking office in the

Department of Justice is in charge of appellate court litigation of the federal

government Four key functions:

Decide whether to appeal cases the government lost Review and modify briefs presented in appeals Represent the government before the Supreme Court Submit a brief on behalf of a litigant in a case in which

the government is not directly involved

The Courts as Policymakers●Making DecisionsoOral arguments heard by the justicesoJustices discuss the caseoOne justice will write the majority opinion (statement of

legal reasoning behind a judicial decision) on the case

where the bulk of the argumentation presented by both sides presented

The Courts as Policymakers●Making Decisions (continued)oDissenting opinions are written by justices who oppose the

majority.oConcurring opinions are written in support of the majority but

stress a different legal basis.oStare decisis: let previous decision stand unchangedoPrecedent: how similar past cases were decided

May be overruledoOriginal Intent: the idea that the Constitution should be

viewed according to the original intent of the framers

The Courts as Policymakers

●Judicial implementationoHow and whether court decisions are translated

into actual policy, thereby affecting the behavior of others

oMust rely on others to carry out decisions Interpreting population: understand the decision Implementing population: the people who need to

carry out the decision–may be disagreement Consumer population: the people who are affected

(or could be) by the decision

Understanding the Courts

●The Courts and DemocracyoCourts are not very democratic.

Not elected Difficult to remove judges and justices

oThe courts often reflect popular majorities.oGroups are likely to use the courts when other methods

fail, which promotes pluralism. Strategy of the Civil Rights Movement

oThere are still conflicting rulings leading to deadlock and inconsistency.