1. The Courts
Chapter 13

2. The Constitutional Judiciary
 Tenure is necessary for independence
 Hamilton, Federalist #78 – “That inflexible and uniform adherence to
the rights of the Constitution, and of individuals, which we perceive to
be indispensable in the courts of justice, can certainly not be
expected from judges who hold their offices by a temporary
commission.”
 Irreducible salaries strengthen independence
 Hamilton, Federalist #79 – “In the general course of human nature, a
power of a man’s subsistence amounts to a power over his will.”
 Overall – Judicial independence is necessary for the supremacy
of the Constitution

3. Common Law Tradition
 Common Law
 Judge-made law that originated in 11th century England from decisions shaped
according to prevailing custom
 New laws were created as unique situations and cases were presented
 Decisions were applied to similar situations and gradually became common to
the English nation
 Precedent
 The practice of deciding new cases with reference to former decisions
 A cornerstone of the English and American judicial systems
 This is embodied in the doctrine of stare decisis
 “to stand on decided cases”
 Judges are obligated to follow the precedents set previously by their own courts or
by courts of higher authority

4. Sources of American Law
 The body of American law includes:
 The Constitution
 State Constitutions
 Statutes passed by legislative bodies
 Administrative law
 Case law

5. Sources of American Law
 Statutes
 Laws enacted by federal or state legislatures
 Increasingly important in defining the rights and obligations of individuals
 Federal examples: federal taxation, hazardous waste, environmental
protection
 State examples: criminal codes, commercial laws, state taxation
 Cities and counties also pass statutes called ordinances
 May deal with issues such as zoning proposals and general public safety
 Much of the work of the courts today deals with interpreting statutes
and applying them to specific cases

6. Sources of American Law
 Case Law
 Judicial interpretations of common law principles and doctrines
 Includes interpretations of constitutional law, statutory law, and
administrative law
 In the United States, case law is ultimately decided by the
Supreme Court, if necessary
 They decide what a constitutional provision or a statuary phrase means
 In doing so, they establish case law

7. The Federal Court System
 The United States has a dual court system
 State Courts
 Federal Courts
 Each of the 50 states, as well as the District of Columbia, has
its own independent system of courts
 Overall, there are 52 court systems in the country

8. The Federal Court System
 Basic Judicial Requirements
 Certain requirements must be met before a case can be brought
before any court
 Jurisdiction
 The authority of a court to decide certain cases
 Not all courts have the authority to decide all cases
 Where a case originates and what its subject matter is are two key issues
 Geographic areas dictate jurisdiction in state courts
 However, a state’s highest court has jurisdictional authority over all residents in
the state

9. The Federal Court System
 Basic Judicial Requirements
 Jurisdiction
 The limiting power of the Constitution limits the jurisdiction of the federal
courts
 Cases must involve either a federal question or diversity of citizenship
 Federal Question
 A question that has to do with the U.S. Constitution, acts of Congress, or treaties
 Diversity of Citizenship
 The condition that exists when the parties to a lawsuit are citizens of different states
 Ex. Resident of Texas v. Resident of Arkansas
 Could also be when the parties are citizens of a state and citizens or the government
of a foreign country
 Ex. Resident of Texas v. Resident of the United Kingdom
 Additionally, $75,000 or more must be in controversy to meet this requirement for
jurisdiction

10. The Federal Court System
 Basic Judicial Requirements
 Standing to Sue
 Another basic judicial requirement that requires a party to have a
sufficient “stake” in a matter to justify bringing suit
 Party must have suffered or threatened by a harm, as a result of the action that
led to the dispute in question
 This includes both criminal and civil matters
 A justiciable controversy is also required for standing to sue
 A controversy that is real and substantial
 As opposed to hypothetical or academic
 Basically, you cannot use the court system to “test the legal waters” or give
advisory opinions on hypothetical questions

11. Supreme Court of the United States
Court of Appeals
Court of Appeals for the Federal
Circuit
District
Courts
Territorial
Courts
Tax
Courts
Court of
International
Trade
Court of
Federal
Claims
Court of
Veterans
Appeals
Bankruptcy
Courts
The Federal Court System

12. The Federal Court System
 Types of Federal Courts
 U.S. District Courts
 Trial Courts – courts in which most cases begin
 District Courts are courts of general jurisdiction
 When a court can hear cases involving a broad array of issues
 Federal cases involving most matters are typically heard in district courts
 Other District Courts are courts of limited jurisdiction
 Courts that can try cases involving certain types of claims
 Tax claims or bankruptcy claims
 There is at least one federal district court in every state
 The number of judicial districts change over time due to population changes
and case loads

13. The Federal Court System
 Types of Federal Courts
 U.S. District Courts
 Appellate Courts
 A party who is dissatisfied with the decision of a district court can appeal the
case to the appropriate U.S. Court of Appeals
 Many federal administrative agencies and most executive departments
employ administrative law judges (ALJs) who resolve disputes arising
under the rules governing their agencies
 Examples: EPA, Social Security Administration, FBI, etc.
 However, if a party is dissatisfied with the outcome of an administrative hearing
and all internal agency appeals have been exhausted, a party may have a right
to file an appeal in a federal district court

15. The Federal Court System
 Types of Federal Courts
 U.S. Court of Appeals
 There are 13 (circuit) courts of appeals
 12 hear cases from their respective geographic districts
 The Thirteenth Circuit (Federal Circuit) has national appellate jurisdiction over certain types
of cases such as patent law and cases where the U.S. government is a defendant
 How the courts of appeals operate
 They do not conduct another trial
 A panel of 3 or more judges review the record of the case on appeal and determine whether
the trial court committed an error
 They usually do not look at questions of fact (whether a party actually did not something
or not)
 They are concerned with questions of law
 Whether something a party did can be protected under the Constitution, previous case
law, etc.
 A party can petition the U.S. Supreme Court to review an appellate court’s
decision
 The likelihood of the Supreme Court hearing a case on appeal is slim
 Usually means that an appellate court’s decision is final

16. The Federal Court System
 Types of Federal Courts
 The U.S. Supreme Court
 The major function of the court is as a last chance appellate court
 It can exercise original jurisdiction (act as a trial court) in certain cases
such as:
 Cases affecting foreign diplomats
 Cases in which a state is a party
 The Supreme Court can review a state supreme court decision only if a
federal question is involved

17. Terminology to Know
 Plaintiff – the person or organization that initiates the lawsuit
 Defendant – the person or organization against whom the lawsuit is filed
 Interest groups play an important role in our judicial system because of
litigation
 Engaging in a legal proceeding or seeking relief in a court of law
 They assist in litigating cases involving race/gender based discrimination, business
matters, civil liberties, etc.
 Interest groups also frequently file amicus curiae briefs
 A legal argument support a desired outcome in a particular case although they are
not directly involved in the litigation
 Also known as “friend of the court” briefs
 Class-action lawsuits
 A lawsuit filed by an individual seeking damages for “all persons similarly situated…”
 Ex. Product manufacturing defects

19. The Supreme Court at Work
 Of the total number of cases that are heard each year in U.S. Courts, the
Supreme Court hears less than 1 in 4,000
 Types of cases:
 Freedom of speech
 Right to bear arms
 Finance
 Capital punishment
 Rights of criminal suspects
 Affirmative action
 Abortion
 Property rights
 Sexual harassment
 States’ rights
 Pornography
 Religious freedom

20. The Supreme Court at Work
 How the Court Decides to Hear Cases
 There is no absolute right of appeal to the Supreme Court – it is entirely
discretionary
 The Court ultimately makes the decision
 Factors that Bear on their Decision
 If a legal question has been decided differently by lower courts, it may need
resolution by the highest court
 A ruling may be necessary if a lower court’s decision conflicts with an existing Supreme Court
ruling
 Could the issue have significance beyond the immediate case
 National government cases
 The solicitor general typically asks to the Court to take cases involving the government
 He/she decides which cases the government should ask the Court to review and what position
the government should take on the cases

21. The Supreme Court at Work
 Granting Petition for Review
 If the Supreme Court decides to hear a case, it will issue a writ of
certiorari
 An order issued by a higher court to a lower court to send up the record
of a case for review
 Rule of Four – the Supreme Court will not issue a writ unless at
least four justices approve of it

22. The Supreme Court at Work
 Court Procedures
 The Court does not typically hear evidence (similar to all
appellate courts)
 Attorneys for the parties are permitted to present oral arguments
 Arguments presented in person by attorneys to an appellate court
 Each attorney presents reasons to the court why the court should rule
in his/her client’s favor

23. The Supreme Court at Work
 Decisions and Opinions
 When the Court reaches a decision on a case, its opinion is written
 The statement by a judge or court reached in a case
 The opinion sets forth the applicable law and details the reasoning on which
the ruling was based
 If a decision of a lower court is affirmed, the Supreme Court declares
the lower court’s ruling is valid and must be enforced
 If a decision of a lower court is reversed, the Supreme Court annuls,
or voids, a lower court’s ruling based on some error or irregularity

24. The Supreme Court at Work
 Decisions and Opinions
 Sometimes, the Supreme Court will remand a case
 Send the case back to the lower court for a new trial or other proceeding
 The Court’s written opinion sometimes is unsigned
 This is called an opinion per curiam (“by the court”)
 Typically, the Court’s opinion is signed by all the justices who agree
with it
 When in the majority, the chief justice decides who writes the opinion
 When the chief justice is in the minority, the senior justice on the majority
side assigns the opinion

25. The Supreme Court at Work
 Types of Opinions
 Unanimous opinion – a court opinion on which all judges agree
 Majority opinion – a court opinion reflecting the views of the majority
of the judges
 Concurring opinion – a separate opinion prepared by a judge who
supports the decision of the majority of the court but who wants to
make or clarify a particular point
 Or to voice disapproval of the grounds on which the decision was made
 Dissenting opinion – a separate opinion in which a judge dissents
from (disagrees with) the conclusion reached by the majority of the
court and expounds his or her own views about the case

26. The Supreme Court at Work
 Dwindling Caseload
 Some complain that the Supreme Court reviews too few cases each
term, thus giving the lower courts less guidance on important issues
 Examples: 1982-83 term – 151 cases
 Early 2000s – 70 and 80 per term
 2010 – 92 per term
 Reasoning
 Some scholars indicate that the growing conservatism of the judges sitting
on the lower courts is responsible
 Many Republican presidents appointing federal judges from 1980 – 2008
 As a result, the government loses fewer cases in the lower courts, which
lessens the need for the government to appeal the rulings through the
solicitor general’s office

27. Selection of Federal Judges
 All federal judges are appointed pursuant to Article II, Section 2 of the
Constitution
 The president appoints the justices of the Supreme Court with the advice and
consent of the Senate
 2 step process
 1. president nominates a potential justice
 2. Senate Judiciary Committee investigates and either approves/disapproves the
potential justice
 There are more than 850 federal judgeships in the United States
 Once appointed, a person holds the job for life
 They can either resign, retire voluntarily, or die
 In rare cases, a judge may be removed by impeachment for illegal conduct

28. Background of U.S. Supreme
Court Justices (to 2011)
Occupational
Position before
Appointment
Total Number of
Justices = 112
Federal Judgeship 31
Private Legal
Practice
25
State Judgeship 21
Federal Executive
Post
9
U.S. Attorney
General
7
U.S. Senator 6
State Governor 3
Deputy/Assistant
U.S. Attorney
General
2
U.S. Solicitor
General
3
U.S.
Representative
2
Other 3
Religious
Background
Number of
Justices
Protestant 83
Roman Catholic 14
Unitarian 7
Jewish 7
No religious
affiliation
1
Age on
Appointment
Total Number of
Justices
Under 40 5
41 – 50 33
51 – 60 60
61 – 70 14
Political Party
Affiliation
Total Number of
Justices
Democrat 46
Republican 44
Federalist (to
1835)
13
Jeffersonian
Republican (to
1828)
7
Whig (to 1861) 1
Independent 1
Educational
Background
Total Number of
Justices
College Graduate 96
Not a College
Graduate
16
Gender Total Number of
Justices
Male 108
Female 4
Race Total Number of
Justices
White 109
African American 2
Hispanic 1

29. Judicial Activism and Restraint
 Judicial Activism
 A doctrine holding that the federal judiciary should take an active role
by using its powers to check the activities of governmental bodies
when those bodies exceed their authority
 Discovering the “original intent” of the Founders not possible
 Must read the Constitution in light of contemporary meaning
 Judicial Restraint
 A doctrine holding that the courts should defer to the decisions made
by the elected representatives of the people in the legislative and
executive branches
 Jurisprudence of Original Intention – we should judge policies in light
of principles, rather than remold principles in light of policies
 This was touted as a “fix-all,” so the S.C. could avoid charges of
incoherence and partisan politics

30. Judicial Activism, Coffins, and
Yogurt
 Judicial Activism “Yogurt Argument”
 If the Founders had been eating yogurt for over 200 years, they
might approve of a “different flavor” of interpretation
 Judicial Restraint “Coffin Argument”
 If the Founders were pried out of their coffins after 200 years of
sleep, they would frown upon new interpretations and
constructions of the Constitution
 “George Washington is probably rolling in his grave right now…”

31. Strict vs. Broad Construction
 Strict Construction
 A judicial philosophy that looks to the “letter of the law” when
interpreting the Constitution or a particular law
 Often associated with conservative political views
 Those that adhere to this liken the Constitution to a plain text
document only
 Justice Scalia, “the Constitution is not a living organism, it is a legal
document. It says something and does not say other things.”
 Broad Construction
 A judicial philosophy that looks to the context and purpose of a law
when making an interpretation
 Often associated with liberal political views
 Those that adhere to this liken the Constitution to a “living document”

32. Judicial Review
 The power of judicial review is not mentioned in the
Constitution
 It was established in Marbury v. Madison
 The Court declared that a law passed by Congress violated the
Constitution
 At the same time, the Court declared that judicial review was a power
that was claimed by the judiciary
 “It is empathetically the province and duty of the Judicial Department to
say what the law is. Those who apply the rule to a particular case must
of necessity expound and interpret that rule. If two laws conflict with
each other, the courts must decide on the operation of each.”

33. Judicial Review
 Logic of Judicial Review
 Why have judges take an oath to protect the Constitution if they
cannot invalidate laws in contradiction of that document?
 If two laws conflict, it’s the Supreme Court’s job to mediate