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THE JUDICIAL BRANCH: STRUCTURE AND PROCESS

THE JUDICIAL BRANCH: STRUCTURE AND PROCESS. Topic #12. Judicial Review as a “Byproduct”. Because it is exercised by ordinary courts (rather than by a special “constitutional court”), judicial review in the U.S. does not operate in the following fashion : Congress passes a law,

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THE JUDICIAL BRANCH: STRUCTURE AND PROCESS

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  1. THE JUDICIAL BRANCH:STRUCTURE AND PROCESS Topic #12

  2. Judicial Review as a “Byproduct” • Because it is exercised by ordinary courts (rather than by a special “constitutional court”), judicial review in the U.S. does not operate in the following fashion: • Congress passes a law, • the President signs the law, • the Supreme Court reviews the law [in the manner of a “constitutional court”], and then (if it is judged to be constitutional) • the law goes into effect. • Rather, as was illustrated by the case of Marbury v. Madison, it operates in the following fashion: • Congress passes a law (e.g., the Judiciary Act), • the President signs the law, and • the law goes into effect. • The law may subsequently produce a legal case (Party A v. Party B) and, in deciding the case (e.g., whether someone can be convicted for violating the law), courts may have to decide whether the law is constitutional. • So U.S. courts exercise judicial review as a byproduct of deciding concrete cases that come before them. • However, it is also true that concrete cases may be contrived deliberately to test the constitutionality of laws.

  3. The Federal Compromise Produces a Dual Court System

  4. The Federal Court System • Not only the size but also the structure of the U.S. court system (particularly at its intermediate level) has changed since the original Judiciary Act of 1789, • as a result of many amendments to the Judiciary Act. • The size of the Supreme Court has been fixed at nine since 1869. • The old Circuit Courts have been replaced by U.S. Courts of Appeal • However, the geographical jurisdictions of these intermediate Courts of Appeal are still referred to as “circuits.” • In each circuit, appeals Court judges normally sit in panels of three. • Larger states now contain several U.S. District Courts, and • each District Court has several judges. • A U.S. Attorney is assigned to each Federal District Court.

  5. The Federal Court System (cont.) • The allocation of original vs. appellate jurisdiction in today’s federal courts: • District courts: 100% original • Courts of Appeal: 100% appellate • Supreme Court: ~ 99.9% appellate, ~0.1% original • State court cases that raise “federal questions” they may be appealed to the U.S. Supreme Court. • As previously noted, state court systems typically follow the same three-tiered structure as the federal system.

  6. The Dual Court System (Resulting from the Federal Compromise)

  7. Types and Names of Cases • Original criminal cases (prosecution vs. defendant): • United States v. John Doe • The People [State, Commonwealth, etc.] v. John Doe • Original civil cases (plaintiff vs. defendant) • Marbury v. Madison • Maryland v. McCulloch • Plaintiffs and defendants may be either governments or private parties • Cases appealed to higher court (appellant vs. other party): • loser v. winner at lower level • John Doe v. United States (or state) • McCulloch v. Maryland (Topic #17)

  8. Appealing Cases to Higher Courts • While the SC is primarily an appeals court, it can review only a tiny fraction of the cases that it might review. • Most cases are resolved at the trial (district) court level. • Most criminal cases are resolved by plea bargain, so there is no trial and no appeal. • Most criminal defendants who go to trial are convicted, but often the case is pretty open-and-shut, so there is little basis for appeal. • If there is a trial and the defendant is found to be not guilty, the prosecution cannot appeal. • Many civil cases are settled out-of-court before trial. • But if a civil case goes to trial, the loosing party can usually appeal and often does so. • Appeals from Federal District Courts to the Court of Appeals are fairly automatic if requested. • But appeals from the (federal) Courts of Appeal or from state Supreme Courts to the SC are rarely automatic.

  9. Two Routes to Review by the SC • Prior to 1925, many cases could be appealed to the SC, whose caseload therefore became overwhelming. • As a result of an amendment to the Judiciary Act in 1925, only a few types of cases now qualify for a (more or less) automatic review by the SC. • e.g., when a lower court has declared a federal law to be unconstitutional. • Such cases constitute only about 10% of the SC case load (~10 cases a year). • In other cases, the losing party may petition the SC for a writ of certiorari, by explaining why the SC should review the case: • If the petition is granted, the SC issues the writ to the lower court, ordering it to send up the case material for review. • About 7,500 such petitions are filed with the SC each year, but the SC grants petitions in only about 100 or fewer cases a year. • Nevertheless, such cases make up about 90% of the SC’s case load.

  10. The Writ of Certiorari (cont.) • The SC can use the petition for writ certiorari procedure to “screen” cases for its consideration and thereby it can largely control its own agenda, i.e., • the SC can pick and choose the cases it will take for review. • The SC uses the “rule of four” (4/9 rule) in deciding whether grant “cert.” • The SC court is especially likely to grant cert • if the case raises important and/or unresolved legal issues, or • if the lower court(s) have ruled in a way that appears to be contrary to precedent and prior SC decisions, or • if lower courts are following a SC precedent that members of the SC now want to reconsider and perhaps overrule. • Justices who vote to grant cert • are rather likely to support the appellant and reverse the lower court decision if SC takes the case, but • there is no guarantee they will so decide.

  11. Supreme Court Decision Making • Both parties submit written briefs, stating the legal arguments that support their positions. • Amicus curiae (“friend of the court”) briefs may also be submitted (by the U.S., advocacy groups, etc.). • Oral argument is scheduled. • Time is very limited, usually no more than one hour for each side. • And justices commonly interrupt the lawyers with questions. • If the United States is a party in the case, it is usually represented by the Solicitor-General. • Oral argument is open to the public and the press. • But it is not open to radio or television (not even C-SPAN). • Complete transcripts of oral argument are made available and recently tape recordings have also been released.

  12. SC Decision Making: The Conference • Following oral argument, SC members discuss a case and then vote in the SC Conference. • Only the justices themselves attend the Conference (no clerks, etc.) • Conference proceedings are kept totally secret. • The conference process remained a mystery until about 40 years ago. • Justice William Brennan, “How the SC Arrives at Decisions,” NY Times Magazine • In its appellate role, SC must either affirm or reverse the lower court decision. • The Chief Justice first presents his views and tentative conclusions, followed by the Associate Justices in order of seniority.

  13. SC Decision Making: The Conference (cont.) • Justices then vote in reverse seniority, with the Chief Justice casting the final vote. • SC decisions are governed by simple majority rule (5/9). • In the event of a tie (resulting from a vacancy, illness, or recusal), the lower court decision is affirmed. • With a few exceptions (per curium decisions), a SC decision is accompanied by a SC opinion justifying the decision is written and signed by one or more of the justices (e.g., Marbury v. Madison). • If the Chief votes with the majority, the Chief writes the opinion or assigns the task to some other justice in the majority. • If the Chief votes with the minority, the most senior Associate Justice in the majority writes the opinion or assigns the task to some other justice in the majority. • The Chief, who votes last in an open “roll call,” may have a strategic incentive to vote with the majority (if the vote is other than 4-4), so as to control the writing of the opinion.

  14. SC Decision Making: The Conference (cont.) • The draft opinion is circulated among the justices for comments, criticisms, and suggestions (especially from the justices in the majority). • As a result, the draft is usually revised and sometimes completely rewritten. • Occasionally Justices may switch their votes, possibly reversing the previous tentative decision and requiring a new written opinion. • When the SC’s opinion is largely complete, justices in the majority and minority may decide to write concurring or dissenting opinions, respectively. • Such opinions do not have the force of law and often are written in a less legalistic style than the opinion of the Court. • The SC then announces its decision and releases its opinions (usually for a number of cases simultaneously).

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