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Article 3 • Section 1 • The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.
Article 3 (Section 2) 1: The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States, —between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects. 2: In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make. 3: The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.
Meaning of “judicial Power”?? • Federalist 78: Hamilton argues for the necessity of the federal courts; say have no fear of their encroachment on state courts or on peoples’ rights • “the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution . . .” • “For there is no liberty, if the power of judging be not separated from the executive and legislative powers.” • Marbury v Madison(1803) establishes the precedent of judicial review - “judicial Power” = power to interpret the constitutionality of legislation / executive actions
The Nature of the Judicial System • Introduction: • Two 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. • Most cases are tried and resolved in state, not federal courts.
Participants in the Judicial System • Litigants • 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.
The Structure of the Federal Courts Constitutional Courts—A court exercising the judicial powers found in Article III of the Constitution. No fixed terms of office, can’t be fired. District Courts—94 District courts Court of Appeals—11 Circuits, plus DC Legislative Courts—A court set up by Congress for some specialized purpose and staffed with people who have fixed terms of office and can be removed. Examples include territorial courts and Court of Military Appeals Supreme Court—Only federal court required by the Constitution. In session for 36 weeks per year, 9 justices.
Federal court jurisdiction • District Courts deal 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 • Appellate Courts review the legal issues in cases brought from lower courts • Hold no trials and hear no testimony • 12 circuit courts • U.S. Court of Appeals for the Federal Circuit – specialized cases • Focus on errors of procedure and law
Origins of constitutional interpretations – the heart of American politics (and parties…) Federalists – rally around the ideas and leadership of Secretary of Treasury Alexander Hamilton; flexible view of a “living Constitution” “Republicans” (aka “Democratic-Republicans” or “Jeffersonian Republicans”) rally around the ideas and leadership of Secretary of State Thomas Jefferson; strict view literal of a limited government
Article 1 Section 8 of the Constitution: The Congress shall have power …To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. Enumerated Powers: “strict constructionist” – do not feel free to interpret constitutional language; use federal power only when “indispensible” to carrying out clearly stated duties Implied Powers: “loose constructionist” – can be flexible with interpretation of language; make laws that adapt and change with the times… “advantageous” to carrying out governmental responsibilities, now and in the future A1S8 is often referred to as the “necessary and proper ”clause, or the “elastic” clause
From NRHS Student Agenda book – more where’s the “elastic” language??
Pg 49 – dress code; contrast possible “loose” or “strict” interpretations?
Judicial “activism” vs “restraint” Strict-constructionist approach—Judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution. Activist approach—Judges should discover the general principles underlying the Constitution and its often vague language, amplify those principles on the basis of some moral or economic philosophy and apply them to cases. ***Note that the difference between activist and strict-constructionist judges is not necessarily the same as the difference between liberals and conservatives. ***At times, liberals have been strict-constructionist or activist judges and vice versa.
Writ of Certiorari • 4 of 9 Supreme Court Justices feel a case should be heard - “Rule of Four” • “Cert” is often granted when: • 2 or more Fed. Court of appeals have decided same issue differently. • Highest court in a state has held a federal or state law to be in violation of the Constitution or upheld a state law against the claim it was un-Constitutional • How often is cert granted?
Judicial Appointments • All constitutional court judges are nominated by the President, confirmed by the Senate, and serve for life • Presidents almost always nominate someone from their own party—ideology is one aspect that impacts decisions of judges, but not the only factor. • Presidents have been quite surprised by the behavior of some judges they have nominated. • Examples: TR and Oliver Wendell Holmes, Ike and Earl Warren, G.H.W. Bush and David Souter • Confirmation Process: Long and often arduous.Why? • Article II, Sec. 2 should read: “The Senators shall nominate, and by and with the consent of the President, shall appoint.” Why? • Senatorial Courtesy • The “Litmus Test” • 29 of 145 Supreme Court nominees have been rejected.
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 historical “phases” of the Courts • The federal courts have evolved significantly over time, taking on a more significant role in American life and politics. • Three historic shifts in the evolution of the courts: • 1787-1865: Establishment of supremacy of Fed. Gov’t and slavery: - John Marshall; Marbury v. Madison and judicial review • 1865-1937: Emphasis on the protection of private property and battles over regulation - segregation; brakes on “New Deal” legislation • 1938 to the present: civil rights and civil liberties - Warren Court (Brown, Roe, Miranda, Gideon…) - US v. Nixon • A fourth phase??? (rolling back / “equilibrium” from 3rd phase??) • Yes (rolling back Roe? Greater leeway for police? Bush v. Gore?) • Or maybe no (Obamacare?; same sex marriage?)
Standing • Standing = Who is entitled to bring a case • Must be an actual controversy • Must show you have been harmed by the law or practice about which you are complaining • Being a taxpayer alone doesn’t quality you to challenge the constitutionality of a federal action • sovereign immunity • class-action suits
How the Supreme Court works • briefs are read individually • short arguments heard in courtroom • decisions made in private conference. • most cases arrive via writ of certiorari • In forma pauperis • Interest groups • briefs from both sides are heard, then oral arguments, as well as amicus curiae briefs. • Justices conference on Fridays. • Clerks • Opinions: • Opinion of the Court • Concurring Opinion • Dissenting Opinion • Per Curiam opinion
Stare Decisis • The power of precedent (decides most cases) • Not absolute (Brown v. Board of Ed a prime example) • Judicial implementation – the “remedy” • Obstacles to??
