The%20Judicial%20Branch

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The Judicial Branch
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The Judicial Branch
At 375 words, Article III provides the shortest
description of any of the three branches of
government. It reads, in part 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. The Courts most important powerthat
of judicial reviewis never explicitly mentioned
in the Constitution.
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The Power of Judicial Review
If this power is not found in the Constitution,
where does it come from? There are two early
sources

• Alexander Hamiltons essay, Federalist 78, makes
  it clear that the framers intended the Courts to
  have the power of judicial review. He writes
  that the interpretation of the laws is the
  proper and peculiar province of the courts.
• Hamilton also calls the judiciary the least
  dangerous branch
• Marbury v. Madison (1803), which asserted
  (created) and solidified that power.
• Between 1803 and 2009, 162 acts of Congress have
  been held unconstitutional in whole or in part

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This is the very essence of judicial duty
It is emphatically the duty of the Judicial
Department to say what the law is, wrote Chief
Justice John Marshall in Marbury v. Madison
(1803).
John Marshall
Notice he does not say sole or exclusive duty
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Authoritativeness of Supreme Court

• Three theories
• Judiciary final word
• No final interpreter each branch considers
  constitutionality on its own
• Each branch definitive in its sphere

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S.Ct. concludes it is the final arbiter

• Cooper v. Aaron (1958)
• States cannot nullify decisions of the federal
  courts.
• Several government officials in southern states,
  including the governor and legislature of
  Alabama, refused to follow the Supreme Court's
  Brown v. Board of Education decision. They argued
  that the states could nullify federal court
  decisions if they felt that the federal courts
  were violating the Constitution. The Court
  unanimously rejected this argument
• City of Boerne v. Flores (1997)
• When the Court has interpreted the Constitution,
  it has acted within the province of the Judicial
  Branch, which embraces the duty to say what the
  law is. Marbury v. Madison, 1 Cranch, at 177.
  When the political branches of the Government act
  against the background of a judicial
  interpretation of the Constitution already
  issued, it must be understood that in later cases
  and controversies the Court will treat its
  precedents with the respect due them under
  settled principles, including stare decisis, and
  contrary expectations must be disappointed.

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Article III CourtsConstitutional Courts

• Supreme Court - One court with national
  jurisdiction
• Courts of Appeals 12 geographic-based and one
  for the Federal Circuit (generally patent cases)
• District Courts - 94 in 50 states, District of
  Columbia, Puerto Rico, the Virgin Islands, Guam,
  and the Northern Mariana Islands.
• Court of International Trade.
• United States Court of Federal Claims
• Article III Judges serve during good behavior and
  salaries may not be reduced while in office

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Circuit Courts of Appeal
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Clarence Thomas (G.H.W. Bush 1991)
Antonin Scalia (Reagan 1986)
Anthony Kennedy (Reagan 1988)
Ruth Bader Ginsburg (Clinton 1993)
John Roberts (G.W. Bush 2005)
Stephen Breyer (Clinton 1994)
Sonia Sotomayor (Obama 2009)
Samuel Alito (G.W. Bush 2006)
Elena Kagen Obama 2010)
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Special Federal Courts Created by Congress

• Magistrate judges These judges handle certain
  criminal and civil matters, often with the
  consent of the parties.
• Bankruptcy courts These courts handle cases
  arising under the Bankruptcy Code.
• U.S. Court of Military Appeals This court is the
  final appellate court for cases arising under the
  Uniform Code of Military Justice.
• U.S. Tax Court This court handles cases arising
  over alleged tax deficiencies.
• U.S. Court of Veterans' Appeals This court
  handles certain cases arising from the denial of
  veterans' benefits.

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2011 Federal Judicial Pay

• Chief Justice, Supreme Court 223,500
• Associate Justice Supreme Court 213,900
• Circuit Court Judge 175,300
• District Court Judge 174,000

U.S. Senator U.S. Representative 174,000
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Supreme Court Workload

• Most cases come to the Supreme Court on Petitions
  for Writs of Certiorari (from the Latin "to be
  informed")
• Judiciary Act of 1925 (also known as the Judges
  Bill) made the overwhelming bulk of Supreme Court
  caseload discretionary
• To be accepted, a Cert petition needs only 4
  Justices to vote yes (The Rule of Four)

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Certiorari

• "Whether or not to vote to grant certiorari
  strikes me as a rather subjective decision, made
  up in part of intuition and in part of legal
  judgment. One factor that plays a large part with
  every member of the Court is whether the case
  sought to be reviewed has been decided
  differently from a very similar case coming from
  another lower court If it has, its chances for
  being reviewed are much greater than if it
  hasn't."
• Chief Justice Rehnquist

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Supreme Court Workload

• Term runs from first Monday in October to June of
  following year
• During the 2010 Term, 86 cases were argued and 83
  were disposed of in 77 signed opinions (slightly
  up from the previous term)
• That out of a total 7,857 filings (most of which
  were in forma pauperis petitions (6,299))
• Paid filing actually decreased by 1.5

2011 Year-End Report on the Federal Judiciary
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Process in Supreme Court

• Briefs
• Parties petitioner and respondent
• amicus curiae (friend of the court)
• Solicitor General (argues cases on behalf of the
  U.S.)
• Oral arguments
• Initial vote on the merits and opinion assignment
• Opinion drafted and circulated
• dissenting or concurring opinions

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Getting into Federal Court

• Federal Courts are courts of limited
  jurisdiction
• That is, there are only certain cases the courts
  may decide AND there are cases that the courts
  technically may decide, but determine not to.
• Federal courts can hear cases and controversies
  arising under the Constitution, the laws of the
  United States, and treaties (federal-question
  cases) and cases between citizens of different
  states (diversity cases).
• Original jurisdiction vs. Appellate jurisdiction

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Justiciability Issues Textual (found in the
text of Constitution)

• Case or controversy requirement
• Judges decide only real cases---No advisory
  opinions
• Standing guidelines
• Personal harm must be demonstrated
• Sierra Club v. Morton (1972) relaxed
  standardenjoyment of the environment
• Lujan v. Defenders of Wildlife (1992) shift in
  analysis with shift in court more required than
  the Sierra Club standard.
• a litigant must show that it has suffered a
  concrete and particularized injury that is either
  actual or imminent, that the injury is fairly
  traceable to the defendant, and that a favorable
  decision will likely redress that injury.
• Most recent Hein v. Freedom from Religion
  Foundation (2007) (taxpayer may not challenge
  under Establishment Clause expenditures by the
  Executive from general funds allocated to
  Executive branch by Congress
• Arizona Christian School Tuition Organization V.
  Winn (2011) (taxpayer cannot challenge under
  Establishment Clause program of tax credits for
  religious purposes rather than expenditures

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Justiciability Issues Textual

• Mootness will not decide cases when the
  question will have no impact on the parties
• Exception where nature of the issue is such
  that judicial review will likely never occur if
  standard mootness rules applied e.g. Roe v.
  Wade
• Adequate and Independent State-law basis for the
  decision

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Justiciability Issues Prudential

• Political Question Doctrine
• Where the issue before the court has been
  textually committed to another branch of
  government
• Powell v. McCormick (1969)refusal to seat a
  congressman because he acted unethically is not
  textually committed to Congress under Article I
• Nixon v. U.S. (1992) refused to decide the
  scope of the power of the Senate to try
  impeachment charges (federal judge)
• Where there is a lack of judicially manageable
  standards to decide the case on the merits
• Baker v. Carr apportionment SC battle over
  manageable standards
• Foreign policy/national security

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Getting into Federal Court

• General Deterrents
• Costs are very high
• But these can be lowered
• In forma pauperis plaintiff heard as pauper,
  with costs paid by the government
• Payment by interest groups who have something to
  gain (American Civil Liberties Union)
• Each party must pay its own way the American
  Rule
• Losing party will pay (fee shifting) only by
  statute (such as Section 1983 suits and only
  defendants) or by contract (plaintiff or
  defendant)

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Constitutional Interpretation
it is a constitution we are expounding. . .
A constitution, intended to endure for the ages
to come, and consequently, to be adapted to the
various crises of human affairs. Marbury v.
Madison

• Originalism
• Pragmatism

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Originalism

• Original Meaning Constitution to be interpreted
  with reference to the meaning of the words in the
  world of the founders
• "Oh, how I hate the phrase we havea 'living
  document. "We now have a Constitution that
  means whatever we want it to mean. The
  Constitution is not a living organism, for Pete's
  sake."
• Justice Antonin Scalia

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Pragmatism

• Attempts to solve a current problem by placing
  that problem within the organized whole of past
  interpretations of the Constitution as they
  relate to specific problems
• Significant reliance on the doctrine of stare
  decisis (let the decision stand)
• Lessens significance of the text itself giving
  near-constitutional significance to commentary on
  the text

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Pragmatism

• A non-originalist who gives substantial weight to
  judicial precedent or the consequences of
  alternative interpretations, so as to sometimes
  favor a decision "wrong" on originalist terms
  because it promotes stability or in some other
  way promotes the public good.

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Checks on judicial power

• Selecting judges
• Party background has some effect on judicial
  behavior but ideology does not determine behavior
• Justice Souter
• Senatorial courtesy
• Protocol, recently ignored, that judges to fill a
  vacancy in a U.S. District Court should have the
  approval of the state's senators
• The litmus test
• Concern this may downplay professional
  qualifications
• Greatest effect on Supreme Court

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Checks on judicial power

• Congress and the courts
• Confirmation and impeachment proceedings alter
  the composition of the courts
• Only 11 nominees have been rejected by the full
  Senate (last in 1987Robert Bork)
• Impeachment power most often used against federal
  judges

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Checks on judicial power

• Congress and the courts
• Changing the number of judges (1866 reduce number
  to 7 so that Pres. Johnson could not make
  appointments)
• Altering jurisdiction of the courts and
  restricting remedies
• E.g. Military Commissions Act (MCA) of 2006
• Revising legislation declared unconstitutional
• But see City of Boerne v. Flores
• Constitutional amendment (e.g.11th Amendment,
  14th Amendment and 16th Amendment)

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Judicial Policymaking

• Each time a court reaches a judgment on a case
  involving a federal question, it makes policy.
  This can occur when
• Judges interpret prior judicial decisions
  (common, or judge-made law)
• Judges interpret legislation statutory
  construction
• Judges interpret the Constitution

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BUSH V. GORECITIZENS UNITED V. FEC

• Public perception of the Supreme Court

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Pending Health Care Law Cases
Should the Supreme Court Justices be subject to
conflict of interest rules?