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Judicial Branch

Judicial Branch. http://www.supremecourt.gov /. Understanding the Federal Judiciary. Civil and Criminal Law. Judicial review-power to interpret the Constitution Adversary system-court of law is neutral where two parties argue there differences Criminal law :

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Judicial Branch

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  1. Judicial Branch http://www.supremecourt.gov/

  2. Understanding the Federal Judiciary

  3. Civil and Criminal Law • Judicial review-power to interpret the Constitution • Adversary system-court of law is neutral where two parties argue there differences • Criminal law: • Crimes against the public order and provides punishment • Criminal trial person’s liberty is at stake and if guilty can be imprisoned • Criminal defendants-cannot afford attorney one will be provided by the government • Criminal trials-right to a jury • Civil law: • Governs relationships between individuals and defines there legal rights • Penalties are predominantly monetary • No government provided attorney • No constitutional right to a jury • Must have standing to sue • Experienced or be in immediate danger of experiencing direct and personal injury

  4. Cases and Controversies • Federal judiciary is a passive and reactive branch • Does not instigate cases or conduct investigations • Cannot resolve every issue • Justiciable disputes decided by federal judges • Case or controversy capable of settlement by legal means

  5. Prosecuting Cases • U.S. Department of Justice: • Responsible for prosecuting federal criminal and civil cases • Led by U.S. attorney general • Assisted by the solicitor general • Represents the federal government before the Supreme Court • U.S. Attorneys • Represents the government in it is a party to a case in the lower courts • Appointed by the president with consent of the Senate • Assistant attorney general • Appointed by the U.S. Attorney General after consulting the U.S. Attorneys in each district • Public defender system: • Provides lawyers to any defendant who needs one

  6. Three Types of Federal Courts

  7. Background • Article III • Section 1 • Section 2, (1) • Judicial review: Marbury v. Madison 1803 • 11th amendment • (2) • Original jurisdiction • Appellate jurisdiction • (3) • Trial of crimes • Section 3 (1) (2) • Treason • Judiciary Act 1789

  8. District Courts • 94 district courts • Every state has at least one • Trial courts-most federal cases begin • Handles about 80% of the federal caseload • Individual judge and jury • three-judge panel • Reapportionment, civil rights cases

  9. Circuit Court of Appeals • Review district court decisions on appeal • Judges are bound by precedent • Look for questions of law • 12 judicial circuits • Operate with three judge panel • Most decisions are final • Less than 1% are appealed to Supreme Court

  10. p446

  11. Supreme Court • Court of appeals for the nation • “court of last resort” • Nine supreme court justices • Individual cases are not televised • Decisions establish precedent and binding on the entire nation

  12. Figure 16-4 p451

  13. Appointing Federal Judges

  14. Making Initial Choices • Article II • Power of president to appoint federal judges • Consent of senate • Senatorial courtesy • Submitting names from senator’s state for approval of lower court judges • Not done with Supreme court justices

  15. Senate Advice and Consent • Senate Judicial Committee • Judicial nominations referred • Committee vote before going to entire Senate • Judges are confirmed with majority vote • Ways to delay or defeat • Filibuster • Recess appointments • Litmus test

  16. Role of Ideology • Republican=more conservative • Ex. Chief Justice John Roberts, Justice Samuel Alito • Democrat= more liberal • Ex. Justice Sonia Sotomayor, Elena Kagan • Require bipartisan support

  17. Figure 16-1 p448

  18. Role of Judicial Philosophy • Judicial restraint: • Supreme Court-use precedent & Framers original intent • Should defer to the elected institutions of the government • Judicial activism: • Federal courts must correct injustices when other branches or states refuse • Ex. Brown v. Board of Education of Topeka

  19. Table 16-1 p441

  20. 16-t02 p455

  21. p457

  22. Supreme Court Process

  23. Facts Supreme Court • Term runs=1st Monday in October-end of June • Justices listen to oral argument for two weeks each month from October to April. • Adjourn for two weeks to consider cases and write opinions • At least six justices must participate in each decision • Cases are decided by majority vote • Tie=lower court is sustained, rare by can be reargued

  24. Eight Steps to Judgment

  25. Reviewing Appeals • writ of certiorari-formal petition seeking review • in forma pauperis-petition allows party to file “as a pauper” and avoid Court fees • Most of these come from prisoners • Appeals may come from state supreme court or the federal court system

  26. Granting the Appeal • Agenda or docket is created • Review: • Cases raises a substantial question of federal or constitutional law with broad public significance • Cases in which the court of appeals disagree • State supreme court presented an interpretation which the court disagrees • Rule of four • Cert pool-justices’ law clerks • Denying a writ of certiorari

  27. Briefing The Case • Each side prepares written briefs • Appellants take justices’ views or concerns when writing the brief • Amicus curiae briefs (friend of the court) • outside groups interested in the case and make arguments specific to their members and interest to the justices

  28. Holding The Oral Argument • Case set for oral arguments • Usually heard within three to four months • Counsel for each side allowed 30 minutes

  29. Meeting in Conference • Justices meet on Friday mornings • Private • Chief justice presides opening the discussion • Justice in order of seniority gives views and conclusions • Writing of majority opinion is assigned

  30. Explaining the Decision • Opinions of the court: • Explanation of decision • Instruct judges of state and federal courts how to decide similar cases in the future • Dissenting opinion: • Opinion disagreeing with the majority of the Supreme Court ruling • Concurring opinion: • Opinion that agrees with the majority in a Supreme Court ruling

  31. Writing the Opinion • Document must win support of at least four • Assigned justice writes draft and sends to colleagues for comments • If not accepted, must rewrite until it reaches majority • Two weapons use against colleagues: • Their votes • Threat of dissenting opinions attacking the majority’s opinion

  32. Releasing the Opinion • Copies of the Court’s opinions made available to reporters and the public • Published in the official United States Supreme Court Reports

  33. Influences on the Supreme Court Decisions

  34. Chief Justice • Heads the entire federal judiciary • Special administrative responsibilities • Delivers Annual Report on the State of the Judiciary

  35. Law Clerks • Each justice is entitled to four • Young, graduated from top law school • Previously clerked for federal or state court • Each justice picks their law clerk • Screens writs of certiorari, prepares draft opinions for the justices • Two opinions: • Clerks have to much influence • Justices select clerks with similar views • Clerk’s have influence in the decision to grant certiorari • http://www.reuters.com/article/2012/06/14/us-usa-healthcare-court-clerks-idUSBRE85D17120120614

  36. Solicitor General • Solicitor general- ‘10th justice” • Significant influence over the cases the Supreme Court hears • Can also file amicus curiae briefs • Guarantees the DOJ is represented

  37. Citizens and Interested Parties • Citizens, interest groups, and organizations • May file amicus curiae briefs • National Federation of Independent Business v. Sebelius(2012) • Constitutionality of health care reform • 136 amicus curiae briefs filed

  38. After the Court Decides • Sometimes remands the case back to the lower court with instructions • Lower court considerable leeway in interpreting the Court’s mandate • Sometime rulings are ignored • Prayer in school • Public school segregation

  39. Judicial Power and Its Limits

  40. Adherence to Precedent • Stare decisis-rule of precedent • Judges are expected to abide by previous decisions • Sometimes applied selectively • Supreme Court justices are not restricted by stare decisis • Ex. Citizens United v. Federal Election Commission • Segregation issues • Roe v. Wade • Partial-Birth Abortion Ban Act (2007) chipping away precedent

  41. Congressional and Presidential Action • “Packing” the Court • 1937-FDR proposed increase in the size of the S.C. • Changing the jurisdiction

  42. Judicial Power in a Constitutional Democracy • President and Senate likely to appoint justices whose decisions reflect their values • Ways for citizens the oppose: • Communicate with a member of Congress • Organize to oppose a particular nomination to the federal judiciary • Make voting decisions

  43. Resources • http://www.supremecourthistory.org/how-the-court-works/how-the-court-work/

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