Judiciary Outline

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The role of the courts in American government

A. American courts shape policies that form American democracy.

1. Judges make policy - other judges tend to accept rulings made in similar cases.

2. Supreme Court - makes decisions vital to freedom / order / equality.

3. Courts can undo work of representative institutions.

4. Conflicts with democratic theory / based on majority rules.

B. Some judges prone to injecting their personal values into their decisions.

II. The power on the federal courts

A. Constitution established "one Supreme Court" but left to Congress the structure of the federal judiciary.

1. The first Congress adopted the Judiciary Act of 1789. It provided for a system of federal courts that would coexist with the courts of each state but be independent of them.

2. In the first decade or so under the Constitution, the Supreme Court was weak.

a. The first chief justice, John Jay, resigned for lack of power.

b. Several statesmen refused job of chief justice.

B. Judicial review vastly increased power Supreme Court.

1. The Court's power boosted under third chief justice, John Marshall - wrote majority opinion in MARBURY v. MADISON.

a. MARBURY established the power of JUDICIAL REVIEW: - power to declare acts of Congress / lower courts invalid if Supreme Court finds them in conflict with the Constitution.

b. Subsequent cases extend the power of judicial review to invalidate presidential acts (see YOUNGSTOWN SHEET & TUBE v. SAWYER).

2. Judicial review appears to conflict with democratic theory: a non-elected branch (the judiciary) checks an elected branch (executive or legislature) in the name of the Constitution.)

3. The Supreme Court also exercised judicial review over state laws and executive actions. / Court held the power to invalidate actions of the states / actions of branches of federal government.

C. Hamilton anticipated the power of judicial review and discussed it in "Federalist No. 78."

1. He sought to minimize the power by declaring that the courts would be the least dangerous branch since they have "neither FORCE nor WILL, but only judgment."

2. Hamilton saw constitutional checks on the judiciary in impeachment or constitutional amendment. But both require EXTRAORDINARY MAJORITIES.

III. The organization of the federal courts today.

A. State and federal courts

1. Each state (and the District of Columbia) has its own court system / all similar but no two are alike.

2. The state courts handle vast majority of legal disputes.

B. The federal courts are like a pyramid: Supreme Court is at apex / US. COURTS OF APPEALS in the middle / U.S. DISTRICT COURTS serve as the base.

1. There are ninety-four federal DISTRICT COURTS run by nearly 550 full-time district judges / at least one district court in each state. These courts decide both criminal / civil cases.

a. The criminal code is legislation that regulates conduct / specifies sanctions for violations.

(1) Government maintains order by prosecuting persons that violate the criminal code. / CRIMINAL CASES.

(2) Vast majority of criminal cases - prosecuted in state courts. Some criminal violations are prosecuted in federal courts if crime has federal aspect - federal drug offenses / crimes involving multiple states etc.

b. CIVIL CASES - private disputes / accidents / contractual disputes / obligations / divorce / in some cases Government can be a party to such disputes.

2. Most cases settled / some are abandoned. / When a judge decides a case, it is ADJUDICATED. / To support their decisions, judges will give reasons in writing, called OPINIONS. / By publishing their opinions their reasons available to others.

3. Cases litigated beyond the federal district courts usually go to one of the thirteen regional appeals courts known as the U.S. COURTS OF APPEALS. The judges on these courts sit in panels of three; they concentrate on errors the lower court may of made / at time they make policy through opinions they write.

a. Opinion writing gives judges influence beyond the immediate case.

(1) A PRECEDENT is a decision in one case that provides a reason for deciding a similar case in the same way.

(2) STARE DECISIS, which means "Let the decision stand," is decision making according to the precedent rather than some other rule.

b. Judicial POLICYMAKING occurs

(1) When judges interpret prior judicial decisions. This is known as COMMON or JUDGE-MADE LAW.

(2) When judges interpret legislation. This is known as STATUTORY CONSTRUCTION.

(3) When judges interpret the Constitution. This is known as judicial review.

IV. The Supreme Court: access and decision making

A. The mottoes inscribed on the Supreme Court building capture the Court's difficult task: providing EQUAL JUSTICE UNDER LAW while making JUSTICE THE GUARDIAN OF LIBERTY.

1. Flag burning as a form of political protest pits the value of order (government's interest in maintaining a peaceful society) against the value of freedom (an individual's right to vigorous and unbounded political expression).

2. School desegregation pits the value of equality (equal educational opportunities for minorities) against the value of freedom (parental interest in sending their children to neighborhood schools).

B. The work of the Court is determined by access.

1. The Court decides about 160 cases a year, though it receives about 4,000 requests for review.

2. The Court's jurisdiction falls into two categories: original and appellate.

a. The Constitution specifies the Court's ORIGINAL JURISDICTION. The Court is the first and only forum for the resolution of the very few original jurisdiction cases - usually less than a dozen.

b. APPELLATE JURISDICTION is subject to congressional control; it is also the primary source of cases entering the Court from state and federal courts.

(1) Cases being appealed from state courts must have exhausted that system / must raise a FEDERAL QUESTION / Constitution issue / federal laws / treaties.

(2) The Court exercises nearly complete control over its DOCKET, or agenda.

(3) It takes the votes of four or more justices to grant a case full consideration. This is known as the RULE OF FOUR.

c. The decision to grant or deny review of cases involving the federal government is affected by a little-known executive official / the solicitor general.

(1) The solicitor general represents the federal government before the Court. His duties include determining whether the government should appeal lower court decisions and deciding whether the government should file a "friend of the court" or AMICUS CURIAE BRIEF in an appellate court.(2) Appointed by the president, the solicitor general is an advocate for the president's policies and an officer of the Court.

(3) Given the large number of cases involving the Federal Government - the solicitor general's influence in the Court's agenda setting, it is not surprising that he is regarded as the tenth justice.

C. Once the Court grants review, attorneys submit written arguments (briefs). Oral arguments may also be allowed.

1. The justices reach a tentative decision only after they have met in conference.

2. The voting outcome is the JUDGMENT.

3. After voting, the justices in a majority draft an opinion setting out the reasons.

a. The ARGUMENT states legal foundation / previous cases and legal principles to support the opinion.

b. A justice can agree with a judgment for different reasons. This kind of agreement is called CONCURRENCE. /an additional opinion will be written explaining his arguments / writes a Concurring Opinion.

c. A justice can DISSENT if she or he disagrees with a judgment.

d. Both concurring and dissenting opinions may be drafted offering all three.

4. After the conference, the chief justice writes the majority opinion or assigns that responsibility to another justice in the majority.

5. Justices may attempt to stamp their own policy views on cases they review.

D. Although the chief justice is only one of nine justices, he has several important functions based upon his authority

1. The chief justice provides intellectual / policy leadership.

2. Through his rule in docket control decisions and direction of the conference, he may control the discussion of issues.

I. To become a judge

A. Appointments involve nomination and confirmation.

1. The president makes nominations when vacancies or new positions occur in the federal judiciary.

2. The Senate must confirm the president's nomination by a majority vote. This is known as the advise-and-consent function.

a. Senators have the power to stall or scuttle unacceptable nominees.

b. The practice of senatorial courtesy thus forces a president to share the nomination power with members of The Justice Department now requires senators to submit more than a single name for a judgeship.

(2) President Bush asked Republican senators to seek out more qualified female and minority candidates.

3. The American Bar Association (ABA) is the largest association of lawyers in the United States.

a. Since 1946, the ABA has evaluated nominees for federal judgeships.

b. Occasionally, the ABA will render a "not qualified" assessment of a nominee.

c. For the most part, however, the vast majority of appointees have had the Association's blessings.

B. Recent presidents have made their marks on the federal judiciary.

1. Shortly after assuming office in 1981, Reagan abolished the judicial selection plan of his predecessor, Jimmy Carter.

a. Carter pledged to appoint judges on the basis of merit.

b. There is little evidence that Carter's appointments were more meritorious than earlier presidents.

c. Although Bush's record in the appointment of minorities and women to federal judgeships was better than Reagan's, neither approaches Carter's appointment record in this regard.

2. Political ideology lies at the heart of judicial appointments; presidents tend to appoint nominees who share similar value preferences.

a. The Reagan/Bush ideology-driven appointments will probably shape the judiciary into the twenty-first century.

b. Bill Clinton's nominees reflect his quest for greater ethnic and gender diversity on the bench.

C. Supreme Court justices exercise great power / tend to serve for a long time / their appointments important political events.

1. Presidents are not restrained by senatorial courtesy when making Supreme Court appointments / but presidents face restraint from public opinion when they make appointments.

2. 145 men and two women have been nominated to the Court / 119 of those nominations have been confirmed.

3. Reagan appointed three new justices to the Court during his presidency: Sandra Day O'Connor, Antonin Scalia, and Anthony Kennedy / Scalia was appointed to fill the seat occupied by William Rehnquist, who was promoted to chief justice. All three can be regarded as conservative, given their value preferences. Two other Reagan appointees, Robert Bork and Douglas Ginsburg, failed to be confirmed by the Senate. (Ginsburg actually withdrew his own nomination before the vote came up.)

4. President Bush appointed David Souter and Clarence Thomas, who barely gained the required Senate approval after controversial hearings regarding his alleged sexual harassment of a former clerk, Anita Hill.

5. Bill Clinton appointed the second woman, Ruth Bader Ginsberg, as well as Stephen Breyer.

6. It is difficult to predict how a person will decide once on the Court / Their past experience as a judge offers some basis for such predictions.

II. An understanding of the legal profession provides insight into judges.

A. There are more than twice as many lawyers per capita today as there were thirty years ago. The growth of the legal profession continues to outpace the growth in population.

B. One reason for the popularity of a law career is that lawyers often have high salaries and glamorous lifestyles.

C. Lawyers perform four major functions.

1. They provide legal counsel.

2. They negotiate by mediating between competing interests.

3. They draft documents aimed at securing understanding and withstanding challenges.

4. They litigate, although only a small fraction devotes much time to courtroom activities.

D. Another explanation for the growth of the legal profession derives from American culture / Everything is based on an adversarial system

1. American culture encourages disputes (materialism and individualism).

2. Federalism complicates matters with two court systems in every state (federal courts state courts).

3. Advertising by law firms can create demand for legal services.

4. Separation of powers / checks and balances makes governing difficult.

a. Political compromises will defer issues to courts.

b. Open access to courts encourages groups or individuals without political influence to seek redress through litigation.

C. United States attorneys are the federal government's lawyers.

1. These attorneys see that laws are faithfully executed through criminal prosecutions and civil lawsuits.

2. U.S. attorneys have substantial discretion as they carry out their responsibilities.

3. U.S. attorneys with political ambitions can capitalize on their ability to capture public attention.

III. The consequences of judicial decisions

A. Most disputes do not end up in court.

1. Most civil cases end with settlements.

2. Most criminal cases end by PLEA-BARGAINING / defendants admit guilt - usually in return for reduction in punishment.

3. If a judge sentences a defendant to a period of imprisonment or a jury awards a plaintiff a large sum of money - does not mean that the offender will serve that time in prison or that the plaintiff will receive payment.

B. The Supreme Court relies on others to implement its policies; the impact of its decisions reaches far beyond the parties Involved.

1. The creation of majority / unanimity on the high court forces justices to compromise. Ambiguity may be one way to hold a coalition together, but it also creates uncertainty about implementation.

a. Some lower court judges dragged their feet when it came to enforcing the Court's "all deliberate speed" desegregation order of the BROWN decision.

b. School prayer continued in many places despite the Supreme Court's ban. Some communities interpreted the decision to mean a ban on COMPULSORY prayer, not voluntary prayer.

2. The Supreme Court confronts issues with conflicting values or fundamental political belief - its decisions have impact beyond the immediate parties.

a. The Court's decision to legalize abortion in 1973 generated heated public reaction / piles of hate mail / proposals to overturn the decision by constitutional amendment.

b. In 1989, the Court abandoned its strong defense of abortion rights / recognized government's power to limit the exercise of the right.

C. Despite its undemocratic character, the Supreme Court is not usually out of line with informed public opinion.

IV. The role of the courts in American democracy

A. The MAJORITARIAN view of democracy confines judging to the letter of the law

B. The pluralist view of democracy regards judging as simply another form of POLICYMAKING; individual values and interests of judges should advance the different values and interests of the population at large.

1. This view is supported by the procedure called CLASS ACTION, in which claims or defenses of similarly situated individuals are assembled so they can be tried as a single lawsuit.

2. Whether or not the U.S. Supreme Court leans conservative or liberal, the fifty states each have a Supreme Court that can fashion legal decisions that be contrary up to a point. The multiplicity of courts and levels of justice reinforce pluralist model of democracy.


I. When we think of the courts in our political system, we usually think in terms of court decisions. We think of the constitutional rulings that have changed law and politics.

A. There is some concern with multimember courts - those with a panel of judges like an appeals court or Supreme Court.

1. LEADERSHIP: What is the influence leader on multimember courts?

2. BARGAINING: What goes on between judges as they try to reach a decision? What strategies do judges use to try to influence other judges?

3. IDEOLOGY: How is judicial behavior influenced by the political views of the judges?

4. BACKGROUND: What are the effects of such variables as religion, race, political party, gender, and the like on the decisions of individual jurists?

B. This is not to say that the law is irrelevant. No judge ever considers a decision in a vacuum. He or she will look at precedent. Precedent is not always clear / however attorneys for both sides will cite precedents to support their arguments.

C. Different strategies justices use to influence each other.

1. Justices are not neutral on all issues that come before them..

2. Justices are not equal in their intellectual ability, legal craftsmanship, persuasive talents, and professional esteem.

II. Justices use PERSUASION. / they push merits of different legal arguments. The end result is often compromise.

A. When the justices of the Supreme Court meet in secret to discuss cases they have agreed to rule on, the votes they take at those meetings are not binding. It is not until the draft opinion) have circulated and justices commit themselves to the logic and language of an opinion that the vote becomes fixed.

1. Because there may be a majority opinion, a minority opinion, and concurring opinions circulating, the authors of those opinions are in effect trying to nail down the votes of those who expressed sympathy for a particular view at the conference (meeting).

2. Sometimes a justice will be wavering, expressing sympathies for different arguments made at the conference. The author of an opinion might draft it with that justice in mind, using the logic most likely to win that vote. That logic may not be the argument that the author really wants to stress. If the court seems split, with a 5-4 or 6-3 vote likely, the author may need to compromise on some major points to keep his majority intact.

3. There have been many instances where the initial decision reached in conference was changed after some justices read the competing draft opinions that were subsequently circulated. Persuaded by the logic of the minority position, one or more justices switched their vote and the minority opinion became the majority opinion.

B. Justices engage in intellectual bargaining. The process of circulating an opinion, which may go back and forth between author and other justices many times, is an effort to fit together the pieces of an argument that will attract a majority of votes. (It is a process not only of finding a majority, but of trying to keep other justices who voted the same way from writing a concurring opinion. The intellectual strength of a majority opinion is hurt by concurring opinions because they make it clear that the court has not come up with a definitive ruling.)

III. A case of intracourt bargaining was BROWN v. BOARD OF EDUCATION OF TOPEKA (1954). / The BROWN decision that outlawed school segregation.

A. The Supreme Court's decision in BROWN signaled the end of the doctrine of separate but equal that was articulated by the Court in PLESSY v. FERGUSON, - handed down in 1896.

1. In PLESSY, the Court held that segregation was legal in public accommodations as long as separate but equal facilities were provided.

2. The specific case concerned railroad cars, but the principle was applied much more broadly and was extended to school systems.

B. PLESSY was only one of a number of decisions that undermined the Fourteenth Amendment, but it is of particular importance because the federal courts continued to recognize the doctrine of separate but equal for the first half of the twentieth century.

C. Before the Court rendered its decision in BROWN, it had already taken some incremental steps away from PLESSY. The Court found itself faced with cases where southern colleges were making absurd arguments that they were meeting the separate-but-equal standard of PLESSY.

1. In SWEATT v. PAINTER (1950), the plaintiff wanted admission to the University of Texas Law School. He was denied entrance on the grounds that he was black.

a. To assure the legality of the rejection under the separate-but-equal doctrine, the state of Texas said it was going to build a law school for blacks.

b. By the time the case reached the Supreme Court, the Texas University for Negroes had opened.

c. The Court observed that the University of Texas Law School was "superior"; it was one of the best in the nation. The Texas University for Negroes had no full-time faculty, no comparable library / in short, it wasn't equal to the law school at the main campus.

d. The Court also said that robbing blacks of interaction with so many of their white law school peers forced them to study in an "academic vacuum."

e. The Court thus ruled that the University of Texas must admit blacks because it had violated the equal protection clause of the Fourteenth Amendment.

2. MCLAURIN v. OKLAHOMA (1950), a companion case argued with SWEATT, also involved a graduate student.

a. The plaintiff, a black man, was denied admission to the Ph.D. program in education at the University of Oklahoma. A federal court subsequently ordered the university to admit him since there was no Ph.D. program in education for blacks in the state university system.

b. The state legislature then passed a bill saying that McLaurin must be segregated while on campus. As a result McLaurin had to sit at a designated desk at the library, in a special row in the classroom, and at his own table in the cafeteria.

c. McLaurin sued and the Supreme Court ruled in his favor. The Court said that McLaurin couldn't get a full education if he was denied the opportunity in interact with other students.

3. In MCLAURIN and SWEATT we see the Supreme Court chipping away at PLESSY, but not attacking the central doctrine.

a. The incremental steps toward overturning PLESSY were restricted to defining what "equal" meant.

b. Flagrant instances of inequality were denied protection under PLESSY, but the separate-but-equal doctrine was still good law.

4. In 1952, a case known as BOLLING v. SHARPE, which dealt with school segregation in Washington, D.C., was progressing through the federal court system at the same time BROWN reached the Supreme Court. The Supreme Court decided to hold off on BROWN until this other case came to it on appeal so that it could rule on them together. This delay turned out to be important because of a change in the makeup of the Court.

D. The BROWN decision

1. The Court was scheduled to hear the school segregation cases in October 1953. On September 8, however, Fred Vinson Chief Justice) died. (Not all his fellow justices were particularly upset. When informed of Vinson's passing, Justice Felix Frankfurter - an agnostic - said to one of his clerks, "This is the first indication that I have ever had that there is a God.")

Eisenhower would later describe this appointment as "the biggest damn fool mistake" of his presidency. Eisenhower was particularly upset at the BROWN decision.

2. At a conference of the justices on December 12, 1953, the new chief justice moved boldly. Warren expressed his view of school segregation in clear terms, declaring that he didn't see any grounds for segregation of the races unless it could be judged that blacks were inferior.

3. What Warren was trying to do here was to push the pro-PLESSY justices into a corner - making their argument openly racist.

4. After the conference majority had moved toward overturning PLESSY.

5. Even though there was now a 6-3 majority against school segregation, Warren was not satisfied. He wanted the decision to be unanimous.

a. He knew that integrating segregated schools would be bitterly opposed in the South. He thought it was important that the Court speak with one voice on this issue.

b. We don't know if Warren was, by himself, responsible for bringing about a unanimous decision. We do know that he made a concerted effort to bring in the dissenting justices. In his draft opinion, Warren tried to unite the court rather than make the decision as definitive as possible. Up until five days before the Brown decision was announced, there was still not a unanimous Court.

6. On May 17, 1954, the Court delivered a decision in BROWN v. BOARD OF EDUCATION OF TOPEKA that was supported by all nine justices.

E. Why was Warren so concerned about a unanimous opinion?

1. Warren wanted the decision to appear as strong as possible. He didn't want critics to point to a 5-4 or 6-3 split on the Court as evidence that the issue had not been fully resolved.

2. If southern states thought they could alter school policy a little and pick up the needed one or two votes on the Court, they might have little incentive to comply.

3. If all it would take was one or two new appointments to the Court, the South could use its leverage in the Electoral College to push Eisenhower and the Republican party toward picking pro-PLESSY justices.

IV. Another interesting case of the chief justice's leadership is UNITED STATES v. NIXON. This was the case that finally brought an end to the Nixon administration.

A. Nixon refused to give up a second batch of tape recordings of White House conversations to the special prosecutor's office, arguing that he had already given it everything it needed.

1. He invoked "executive privilege," an implicit constitutional doctrine that protects confidentiality for the president and his aides.

2. The special prosecutor took Nixon to court, and when the case reached the Supreme Court the country was facing a potential constitutional crisis.

B. If the Supreme Court ruled against Nixon, and Nixon refused to give over the tapes, what would happen?

C. In conference the justices decided against Nixon. Some justices expected that the writing would be divided up, but Chief Justice Warren Burger said he'd write the whole opinion himself. Because some justices thought Burger was a second-rate scholar, they were upset at this news, fearing he would not measure up to the great challenge before the Court.

After much back-and-forth with the different drafts of sections and bargaining about what went in the Court's decision, the Court delivered a 9-0 decision against Nixon. Nixon turned over the tapes (which he might have done in response to a non-unanimous decision, too), and the revelations in these tapes eventually led to his resignation.