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THE JUDICIARY The Last of Unit IV THE JUDICIARY The Last of Unit IV

A. The Constitution and the Creation of the National Judiciary • Article III of A. The Constitution and the Creation of the National Judiciary • Article III of the Constitution establishes: – – a Supreme Court=judicial power of the United States is vested Judges are appointed not elected! life tenure or 'good behavior' for judges receive compensation that cannot be diminished during their service – inferior courts as Congress may choose to establish – original jurisdiction of the Supreme Court • Intent of Article III = remedy the failings of the Articles of Confederation which left judicial matters to states.

 • FOUNDING FATHERS’ VIEW of JUDICIARY – Need lifetime appointment – Be free • FOUNDING FATHERS’ VIEW of JUDICIARY – Need lifetime appointment – Be free of politics – Weakest branch but necessary

1. Judicial Review • Judicial review is the power of a court to decide 1. Judicial Review • Judicial review is the power of a court to decide if a law or other legal issue contravenes the Constitution, & to then overturn it. • Power is not mentioned in the Constitution. • Judicial review established by Marshall Court for itself in Marbury v. Madison (1803). • Marbury’s long-term effect: allow the Court to have the final say in Constitutional meaning.

2. The Judiciary Act of 1789 and the Creation of the Federal Judicial System 2. The Judiciary Act of 1789 and the Creation of the Federal Judicial System • American legal system is a dual system: – state courts--actually 50 different “systems” – federal courts • Both systems have three tiers (established by the Judiciary Act of 1789): – trial courts--litigation begins and courts hear the facts of the case at hand (original jurisdiction) – appellate courts--decide questions of law, not fact (appellate jurisdiction) – high or supreme courts

Original vs. Appellate Jurisdiction • Original Jurisdiction: Courts that determine the facts about a Original vs. Appellate Jurisdiction • Original Jurisdiction: Courts that determine the facts about a case. • 90% of cases begin & end in original jurisdiction. • Appellate Jurisdiction hear cases brought to them on appeal from lower courts. Only the legal issues involved.

3. The American Legal System • Which court is responsible for a particular case 3. The American Legal System • Which court is responsible for a particular case depends on jurisdiction. • The law is composed of both criminal and civil aspects. • 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.

Back (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Back (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front (left): Clarence Thomas, Antonin Scalia, Chief Justice John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

Current Supreme Court Justices • Justice Place of birth/ previous pres/ religion age service Current Supreme Court Justices • Justice Place of birth/ previous pres/ religion age service job yr. _________ John Roberts NY/DC fed. judge Bush (05) Cath. 57 (Chief Justice) Elana Kagan NY Solicitor Gen Obama (10) Cath. 52 Antonin Scalia NY fed. judge Reagan (86) Cath. 76 Anthony Kennedy CA fed. judge Reagan (88) Cath. 76 Clarence Thomas GA fed. judge Bush (91) Cath. 64 Ruth B. Ginsberg NY fed. judge Clinton (93) Jewish 79 Stephen Breyer MA fed. judge Clinton (94) Jewish 74 Samuel Alito NJ fed. judge Bush (05) Cath. 63 Sonia Sotomayor NY fed. judge Obama (09) Cath. 55

4. The Federal Court System • The federal district courts, circuit courts of appeals, 4. The Federal Court System • The federal district courts, circuit courts of appeals, and the Supreme Court are called constitutional courts due to their creation by the U. S. Constitution. • Additionally, legislative courts are set up by Congress for specific purposes. v 98% of all criminal cases are heard in state and local courts and not in federal courts!! v Most enter guilty plea bargains to receive lighter punishments.

B. Selection of Judges • 1. Process – Constitution – Nominated by pres. with B. Selection of Judges • 1. Process – Constitution – Nominated by pres. with advice and consent of the Senate • 2. Process in Practice (includes nomination and approval) – Pres. nominates – Senate Judiciary Committee holds hearings – Senatorial Courtesy - Blue slip – Vote on Senate floor – 2/3 majority needed to confirm

 • Factors in Choosing Nominee – – – – Political Ideology Senatorial Courtesy • Factors in Choosing Nominee – – – – Political Ideology Senatorial Courtesy Litmus Test Race, Ethnicity, Gender, Religion Geography (Sup. Crt. ) Experience Age Input from others • Good rating from ABA • Interest groups opinions • Party leaders • Justice Department • White House staff

C. Jurisdiction 1. Jurisdiction of the Federal District Courts • Original Jurisdiction for: – C. Jurisdiction 1. Jurisdiction of the Federal District Courts • Original Jurisdiction for: – Cases involving federal crimes – Civil suits under federal law – Civil suits between citizens of different states where the amount in question exceeds $75, 000. • Each of the 91 districts has a District Attorney who prosecute the cases in their district.

2. Jurisdiction of US Court of Appeals • Cases on Appeal from the US 2. Jurisdiction of US Court of Appeals • Cases on Appeal from the US District Courts. • 12 Districts throughout the Nation • Decisions are made by a panel of at least 3 judges. • Most cases on appeals (including Supreme Court) are settled on the principle of stare decisis (or “let the decision stand”)

3. Jurisdiction of the US Supreme Court • Original Jurisdiction: – Cases involving foreign 3. Jurisdiction of the US Supreme Court • Original Jurisdiction: – Cases involving foreign diplomats – Cases between a state and the US – Cases between two or more states – Cases between one state and the citizens of another – Cases between a state and a foreign country • Appellate Jurisdiction: – Appealed cases from the US Court of Appeals, Court of Appeals for the Federal Circuit, or the Legislative Courts. – Appealed cases from the state supreme courts – Those cases chosen by the court on appeals are issued a “writ of cert” (certiorari) Decisions are made by the 9 Supreme Court Justices.

U. S. District and Appellate Courts U. S. District and Appellate Courts

Structure of the Courts Constitutional Courts U. S. Supreme Court U. S. Courts of Structure of the Courts Constitutional Courts U. S. Supreme Court U. S. Courts of Appeal (12) State Supreme Courts Federal District Courts (94) State courts of appeal State district courts

D. How Federal Court Judges Are Selected • The selection of judges is a D. How Federal Court Judges Are Selected • The selection of judges is a very political process. • Judges are nominated by the President and confirmed by the Senate. – Often presidents solicit suggestions from members of the House of Representatives, Senators, their political party, and others. • Provides the President opportunity to put a philosophical stamp on federal courts.

The Politics of Judicial Selection • The Lower Courts – Senatorial Courtesy: • Unwritten The Politics of Judicial Selection • The Lower Courts – Senatorial Courtesy: • Unwritten tradition where a judge is not confirmed if a senator of the president’s party from the state where the nominee will serve opposes the nomination. • Has the effect of the president approving the Senate’s choice – President has more influence on appellate level

Litmus Tests: Good or Bad? • A litmus test is a question asked of Litmus Tests: Good or Bad? • A litmus test is a question asked of a potential candidate for high office, the answer to which would determine whether the nominating official would choose to proceed with the appointment or nomination. • Examples include abortion decisions and strict constructionism

Who are Federal Judges? Typically federal judges have: – held previous political office such Who are Federal Judges? Typically federal judges have: – held previous political office such as prosecutor or state court judge – political experience such as running a campaign – prior judicial experience – traditionally been mostly white males – been lawyers

Nomination Criteria 4 No constitutional qualifications 4 Competence 4 Ideology/Policy Preferences 4 Rewards 4 Nomination Criteria 4 No constitutional qualifications 4 Competence 4 Ideology/Policy Preferences 4 Rewards 4 Pursuit of Political Support 4 Religion 4 Race and gender

Race/Ethnicity and Gender of District Court Appointees Race/Ethnicity and Gender of District Court Appointees

E. How the Justices Vote 1. Legal Factors • Judicial Philosophy – Judicial Restraint E. How the Justices Vote 1. Legal Factors • Judicial Philosophy – Judicial Restraint - advocates minimalist roles for judges – Judicial Activism - feels that judges should use the law to promote justice, equality, and personal liberty. • Precedent – Prior judicial decisions serve as a rule for settling subsequent cases of a similar nature.

How the Justices Vote 2. Extra-Legal Factors • Behavioral Characteristics – The personal experiences How the Justices Vote 2. Extra-Legal Factors • Behavioral Characteristics – The personal experiences of the justices affect how they vote. Early poverty, job experience, friends, and relatives all affect how decisions are made. • Ideology – Ideological beliefs influence justices’ voting patterns. • The Attitudinal Model – A justice’s attitudes affect voting behavior. • Public Opinion – Justices watch TV, read newspapers, and go to the store like everyone else. They are not insulated from public opinion and are probably swayed by it some of the time.

3. Ways to keep the Judges from varying from Public Opinion • Appointment and/or 3. Ways to keep the Judges from varying from Public Opinion • Appointment and/or confirmation process • Reliance on other public officials to execute decisions • Supreme Court can be overruled with new constitutional amendments • Concern for reputation—personal and for the institution • Impeachment • Congressional control of lower courts

4. Influences on their vote: • Amicus curiae (“friends of the court”) briefs —Legal 4. Influences on their vote: • Amicus curiae (“friends of the court”) briefs —Legal briefs submitted by outsiders that raise additional points of views and information not in the formal party briefs in order to influence the courts. • Often submitted by interest groups such as the ACLU.

5. Ways groups can influence the process • Lobbying the judicial committee or the 5. Ways groups can influence the process • Lobbying the judicial committee or the President • Media—Press Conferences, Opinion Articles, Advertisements, Talk shows • Protests/Demonstrations • Mass mailings/e-mailings • Campaign contributions • Testifying after nomination

F. Court Eras • Nation Building (1781 – 1865) – Battles with the states F. Court Eras • Nation Building (1781 – 1865) – Battles with the states – Marshall’s court • Government & Economy (1865 – 1937) – Economic regulations – Judicial activism begins – Reforms & the Progressives • Personal Liberties, Social Equality & Conflict Between the Two (1938 – present) – Power of the State ( since 1990 s)

1. Marshall Court 1801 - 1835 – Marbury v. Madison (1803) • Gave court 1. Marshall Court 1801 - 1835 – Marbury v. Madison (1803) • Gave court power of judicial review • Strengthened the Court – Fletcher v. Peck (1810) • Laws annulling contracts or grants made by previous legislative acts was unconstitutional – Mc. Culloch v. Maryland • Gave strength to implied powers • Strengthened Congress’ power • Cannot tax federal agencies – “The power to tax is the power to destroy”

2. Other Key Cases – Dartmouth College v. Woodworth • 1819 – states can’t 2. Other Key Cases – Dartmouth College v. Woodworth • 1819 – states can’t pass laws that impair a contract • Encourages growth of businesses and corporations – Gibbons v. Ogden • 1824 – Congress controls interstate commerce, not the states • State laws can’t conflict with federal laws

Eras of Chief Justices • Warren Court – 1953 – 1969 – Liberal – Eras of Chief Justices • Warren Court – 1953 – 1969 – Liberal – 1954 – school desegregation – Expanded rights of criminal defendants – Extended right to counsel & protected against unreasonable searches and seizures and selfincrimination (Mapp case and Miranda case) – States reapportioned Congressional districts to have 1 person- 1 vote – Prohibited organized prayer in public schools

 • Burger Court – 1969 – 1986 – Conservative – Narrowed the defendant’s • Burger Court – 1969 – 1986 – Conservative – Narrowed the defendant’s rights – Abortion decision in Roe v. Wade – Required school busing to eliminate segregation – Upheld affirmative action – Ordered Nixon to hand over White House tapes

 • Rehnquist Court – 1986 – 2005 – Conservative – Bush v. Gore • Rehnquist Court – 1986 – 2005 – Conservative – Bush v. Gore 2000 – Limited rights established by liberal court – No longer a special protection of individual liberties & civil rights for minorities – Constrained federal govt’s power over states • Can’t force states to enforce federal regulatory programs (part of the Brady handgun bill) • Roberts Court – 2005 – – Unconstitutional to ban the sale of handguns – Voted to support Individual Mandate in ACA

Getting to Supreme Court Petitions on the Fast Track • Petitions from the Solicitor Getting to Supreme Court Petitions on the Fast Track • Petitions from the Solicitor General • Petitions with amicus briefs in support • “Circuit conflict” – about 80% of the court’s docket • Civil liberties issue present

Getting to Court More “cert-worthy” criteria • Conflict exists in lower courts • Important Getting to Court More “cert-worthy” criteria • Conflict exists in lower courts • Important – One of a kind – Importance to polity (Brown, Roe, Guantanamo) – Legal Importance – Affects large # of people (national security)

 • Getting to Court contin. Paying – In Forma Pauperis • In forma • Getting to Court contin. Paying – In Forma Pauperis • In forma pauperus (ifp) = litigants who can’t pay the filing fee of $300 (These are granted about 0. 1% of the time even though they make up more than half the Court’s cert petitions. ) – Interest Groups • Brown v. Board - NAACP – Class-Action Suits • A suit brought on behalf of all people • Popular in 60 s & 70 s • New laws – Fee shifting • If you’re the plaintiff, you get loser to pay your court cost

Cert: The Numbers ~6, 000 IFP Petitions ~80 cases 1% of all petitions! ~2, Cert: The Numbers ~6, 000 IFP Petitions ~80 cases 1% of all petitions! ~2, 000 paid Petitions ~6 IFP cases (0. 1% of IFP petitions granted) ~75 paid cases

 • Supreme Court – Writ of certiori (“cert. ”) • Rule of Four • Supreme Court – Writ of certiori (“cert. ”) • Rule of Four - If four justices vote to grant cert, it is granted • Designed to prevent tyranny of the majority • If a case does not gain four votes, a justice may write a “dissent from denial, ” but this is extremely rare. • All votes are secret – Procedure • Session begins 1 st Mon. in Oct. & lasts until June – Monday – Thurs. they hear cases, conference on Fri. – Read briefs – Attorneys have 30 mins. to speak – On Fridays justices discuss the case » Chief Justice speaks first » Senior justice is next » All speak at least once

– Vote – majority vote needed. If tie – lower court decision is left – Vote – majority vote needed. If tie – lower court decision is left standing – Opinions • Types – Majority – Concurring – dissenting • Influences on decisions – Ideology – Previous decisions – Gender, race

Making Public Policy - reinterpret law or Constitution in significant ways - Ex. Brown Making Public Policy - reinterpret law or Constitution in significant ways - Ex. Brown overturned Plessy - Extend reach of existing laws to cover matters not previously thought t be covered by them - Stare decisis - Designing remedies - Handle matters previously left to legislature - redistricting

Checks on the Judiciary Decisions ignored –Congress –Public Opinion Checks on the Judiciary Decisions ignored –Congress –Public Opinion

Patterns of Public Confidence in the Court Patterns of Public Confidence in the Court

Steps in federal criminal process: • Investigation • Charging: • Initial Hearing/Arraignment: stage at Steps in federal criminal process: • Investigation • Charging: • Initial Hearing/Arraignment: stage at which the defendant formally is told what the charges are • Discovery: the pretrial process by which the defendant and—to a more limited extent—the prosecutor can demand information and material about the case from the other party

Plea Bargain: • government and the defendant may agree to forego a trial and Plea Bargain: • government and the defendant may agree to forego a trial and have the defendant enter a plea of guilty as part of a plea bargain. A plea bargain is an agreement that the defendant will plead guilty to the original or another charge in return for some concession from the prosecutor.

Pre-Trial Motions • Sentencing • Appeal Pre-Trial Motions • Sentencing • Appeal

Trial • Voir Dire: Jury Selection (Death Qualifications) • The Guilt Stage: Opening Argument, Trial • Voir Dire: Jury Selection (Death Qualifications) • The Guilt Stage: Opening Argument, Presentation of Evidence, Closing Arguments, Jury Instructions, (sequestered) & Deliberations • Sentencing Stage: The Pre-Sentence Investigation, the Defendant’s Right of Allocution, the Victim Impact Statement, the Parties’ Arguments, and the Imposition of Sentence

The Supreme Court • Accepting Cases – Use the “rule of four” to choose The Supreme Court • Accepting Cases – Use the “rule of four” to choose cases. – Issues a writ of certiorari to call up the case. – Very few cases are actually accepted each year. Figure 16. 4

How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and How Supreme Court Decisions are Made Case on the Docket Approx 95 Briefs and Amicus Briefs submitted Oral Argument Justices Conference Cases discussed Votes taken Opinion Assigned Opinions Drafted and Circulated Opinions Announced Includes majority opinions, Dissenting opinions and Concurring Opinions.

8. Judicial Policy Making • All judges make public policy by: – Interpretation of 8. Judicial Policy Making • All judges make public policy by: – Interpretation of the Constitution or laws. – Extending the reach of existing law – Designing remedies that involve judges acting in administrative or legal ways • The courts do not the executive branch to implement its policies though!!

The Nature of the Judicial System • Participants in the Judicial System – Litigants The Nature of the Judicial System • 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 Nature of the Judicial System • Participants in the Judicial System – Groups The Nature of the Judicial System • Participants in the Judicial System – Groups • 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 – Attorneys • 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

The Structure of the Federal Judicial System The Structure of the Federal Judicial System

The Structure of the Federal Judicial System The Structure of the Federal Judicial System

The Politics of Judicial Selection The Politics of Judicial Selection

The Backgrounds of Judges and Justices • Characteristics: – Generally white males – Lawyers The Backgrounds of Judges and Justices • Characteristics: – Generally white males – Lawyers with judicial and often political experience • Other Factors: – Generally of the same party and ideology as the appointing president – Judges and justices may not rule the way presidents had hoped they would have.

The Backgrounds of Judges and Justices The Backgrounds of Judges and Justices

The Backgrounds of Judges and Justices The Backgrounds of Judges and Justices

The Courts as Policymakers • Accepting Cases – Use the “rule of four” to The Courts as Policymakers • Accepting Cases – Use the “rule of four” to choose cases – Issues a writ of certiorari to call up the case – Supreme Court accepts few cases each year

The Courts as Policymakers • Accepting Cases (continued) – The Solicitor General: • a The Courts as Policymakers • Accepting Cases (continued) – The 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 Decisions – Oral arguments heard by the justices The Courts as Policymakers • Making Decisions – Oral arguments heard by the justices – Justices discuss the case – One justice will write the majority opinion (statement of legal reasoning behind a judicial decision) on the case

The Courts as Policymakers • Making Decisions (continued) – Dissenting opinions are written by The Courts as Policymakers • Making Decisions (continued) – Dissenting opinions are written by justices who oppose the majority. – Concurring opinions are written in support of the majority but stress a different legal basis. – Stare decisis: let previous decision stand unchanged – Precedent: how similar past cases were decided • May be overruled – Original Intent: the idea that the Constitution should be viewed according to the original intent of the framers

The Courts as Policymakers • Judicial implementation – How and whether court decisions are The Courts as Policymakers • Judicial implementation – How and whether court decisions are translated into actual policy, thereby affecting the behavior of others – Must 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 Understanding the Courts