Chapter 14

The Judiciary: The Balancing Branch

Chapter Outline

I. Introduction/The scope of judicial power (see Tocqueville, Laski, Marshall references)

A. American judicial system rests on an “adversary system”

1. Based on “Fight Theory”—arguments aim at fairness in the judicial system

2. Judicial power is passive; only “justiciable disputes” considered

3. In recent years, class action suits are increasingly important

4. Courts cannot resolve political questions (best left to other branches for solution)

A. Do judges make law?

1. Not only do judges make law, they must

2. Adherence to precedent

a. Stare decisis is the rule of precedence – judges are expected to abide by all previous

decisions of their own courts and all rulings of superior courts

b. The doctrine of stare decisis is less controlling in the field of constitutional law; because

the Constitution itself, rather than any one interpretation of it, is binding, the Court can

reverse a previous decision it no longer wishes to follow

3. Types of law (insert)—common, equity, constitutional, admiralty/maritime, administrative,

criminal and civil

II. Federal justice (Judicial power from Article III; legislative and constitutional courts)

A. Federal courts of general jurisdiction (some GOP members favored term limits for judges)

1. District courts – the trial courts of original jurisdiction (94 in the 50 states plus DC/P.Rico)

a. The only federal courts that regularly employ grand juries and petit (trial) juries

b. Assisted by federal magistrate judges—can issue warrants, handle jury selection, etc.

c. District judges are bound by the precedents of the appellate courts that review their

decisions, but these judges have considerable discretion in applying these precedents

d. Except for the few cases that may be taken directly to the Supreme Court, a final decision

of a district court is reviewable by a court of appeals

e. Each court has at least 2 judges but may have up to 28 (most hold office for life)

2. Courts of appeals (12 judicial circuits plus 13^th located in DC)

a. Have only appellate jurisdiction – the authority to review decisions of the district courts

within their circuits and also some of the actions of the independent regulatory agencies

b. Less than 1 percent of the cases from these courts are looked at carefully by the Supreme

Court

c. Controversy over the Ninth Circuit; White Commission proposal recommended partition

B. State and federal courts

1. Each state maintains a judicial system of its own; state courts have sole jurisdiction to try all

cases not within the judicial power the Constitution grants to the United States

2. Except for the limited habeas corpus jurisdiction of the district courts, the Supreme Court is

the only federal court that may review state court decisions

III. Prosecution and defense

A. Federal lawyers

1. On the federal level, the job of prosecution falls to the Department of Justice: the attorney

general, the solicitor general, the 94 U.S. attorneys, and some 1,200 assistant attorneys

2. The president, with the consent of the Senate, appoints a U.S. attorney for each district court

B. Prosecutors and the solicitor general (sometimes called the “Tenth Justice”0

1. Prosecutors decide whether to charge an offense and which offense to charge; they have

largely unreviewable discretion

2. Prosecutors negotiate with the lawyers for defendants and often work out a plea bargain

3. The solicitor general represents the government before the Supreme Court

4. When the solicitor general petitions the Supreme Court and asks it to review an opinion of a

lower court, the Court is likely to do so; SG wins about three-fourths of time

5. The assistant attorney general heads up the Office of Legal Counsel, which works closely

with the Office of the Counsel to the President located in the White House

C. Federal defense lawyers

1. About half of the judicial districts use the public defender system to provide lawyers for

poor defendants in criminal trials

2. The Legal Services Corporation (LSC) provides financial assistance to 323 organizations that

furnish legal help to the poor in non-criminal legal matters; restricted to suing landlords,

employers, husbands, or wives in traditional legal battles; Republicans would like to abolish it

D. Examples of constitutional/special courts—U.S. Court of International Trade, Foreign Intelligence

Surveillance Court

E. Examples of Article I (Legislative courts)—U.S. Court of Claims, U.S. Court of Appeals for the

Armed Forces, U.S. Court of Veterans Appeals, Bankruptcy Judges

IV. The politics of judicial selection

A. The Senate: advice and consent (senatorial courtesy still followed for district judges)

1. The president is allowed considerable discretion in the selection of federal judges

2. The battle over judicial confirmation, if there is one, takes place before the Senate Judiciary

Committee; note changed role of ABA; also Judicial Selection Monitoring Project

3. A candidate's political orientation is the major factor in determining how he or she will vote

on the cases that come before the Court, but note cases of Bork, Thomas, Souter, Ginsburg,

Breyer

B. The role of party, race, and gender

1. Partisan considerations are taken for granted, and partisan affiliation is rarely mentioned

2. Clinton appointed more women and minorities to the bench than his predecessors

C. The role of ideology

1. Republican judges picked by Republican presidents tend to be judicial conservatives, and

most Democratic judges picked by Democratic presidents are more likely to be liberals

2. In appointments to the Supreme Court, the policy orientation of the nominee is likely to be

foremost among presidential concerns

3. Clinton faced slowdown in judicial appointments during second term—create shortage of judges

D. The role of judicial philosophy

1. The Supreme Court's role of judicial restraint versus judicial activism

2. The Supreme Court's role today is more about competing conceptions of the proper balance

between government authority and individual rights

E. Judicial longevity and presidential tenure

1. Because federal judges serve for life, they may be able to schedule their retirement to allow a

president whose views they approve to nominate their successors

F. Reforming the selection process

1. Changing the numbers – One of the first actions of a political party after gaining control of

the White House and Congress is to increase the number of federal judgeships

2. Changing the jurisdiction – Congressional control over the structure and jurisdiction of federal

courts has been used to influence the course of judicial policy making

V. How the Supreme Court operates (in session from October through end of June)

A. Which cases reach the Supreme Court?

1. All appellate cases come before the Court by means of a discretionary writ of certiorari, a

formal writ used to bring a case up to the Court

2. The crucial factor in determining whether the Court will hear a case is its importance to the

operation of the governmental system as a whole

3. The Court accepts cases under the rule of four

4. Denial of a writ of certiorari does not mean that the justices agree with the decision of the

lower court, nor does it establish precedents

B. The powers of the chief justice

1. Appointed by the president and confirmed by the Senate and holds tenure for life

2. The ability of the chief justice to influence the Court has varied

C. The role of the law clerks: help with workload, draft opinions, screen writs of certiorari

D. Amicus Curiae (“friends of the court) Briefs and oral arguments

1. Before a case is heard in open court, the justices receive printed briefs, in which each side

presents legal arguments, historical materials, and relevant precedents

2. The Court may receive briefs from amici curiae, who may be individuals, organizations, or

government agencies that have an interest in the case and claim they have information of

value to the Court

3. The entire procedure is formally informal (30 minute speaking limit for attorneys)—some

justices can be tough on the lawyers, such as Scalia or Ginsburg

D. Behind the curtains: the conference

1. Wednesday afternoons and all day Friday the justices meet in conference

2. Conferences are both collegial and substantive; informal and involve vigorous give-and-take

E. Opinions

1. Supreme Court opinions state the facts, present the issues, announce the decision, and explain

the reasoning of the Court

2. Important function of opinions is to instruct the judges of all other state and federal courts in

the United States on how to decide similar cases in the future

3. Assigning opinions

a. When voting with the majority, the chief justice decides who drafts the opinion

b. When the chief justice is in the minority, the senior justice among the majority makes the

assignment, often to himself or herself

c. Dissenting opinions—opinions disagreeing with the decision of the Court

d. Concurring opinions—opinions that agree with the decision of the Court, but differ on

reasoning

4. Circulating drafts

a. The opinion must win the support of at least four

b. If the initial version is not acceptable to a majority, bargaining occurs

c. Two weapons justices can use against their colleagues are their votes and their willingness to write separate opinions attacking a doctrine the majority wishes to see adopted

5. Releasing opinions to the public—copies of decision made available to reporters, public;

published in United States Supreme Court Reports; since April, 2000, decisions are on website

G. After the court decides

1. As a rule, the Court does not implement its own decision but remands, that is, sends back the

case to the lower court with instructions to act in accordance with the Court's opinion; the

lower court has considerable leeway in interpreting the Court's mandate

2. The impact of a particular ruling announced by the Court on the behavior of those who are

not immediate parties to a lawsuit is even more uncertain

3. Many important decisions require further action by administrative and elected officials before

they become the law of the land, yet sometimes Supreme Court decisions are simply ignored

4. The most difficult Supreme Court decisions to implement are those that require the

cooperation of large numbers of officials

VI. Judicial power in a constitutional democracy

A. Independent judiciary is one of the hallmarks of a free society

1 .Court has been attacked for engaging in “judicial legislation”

2. Today, judges often tell public officials what they must do

B. The great debate over the proper role of the courts

1. Defenders of the activist role argue that if Congress, the White House, and the state

legislatures are unable to resolve problems when people are being denied justice and their

constitutional rights, then the courts should resolve those problems

2. Critics of judicial activism contend that for the last half century the federal courts, in their

zeal to protect people, became unhinged from their political moorings in the political and

constitutional system

3. Others claim the debate between judicial restraint versus judicial activism oversimplifies the

choices; rather, judges should take a leadership role in some areas but a restrained role in

others (stand of Chief Justice Harlan F. Stone)

C. The people and the court

1.There is a correlation between public opinion and judicial decisions

2. President/Senate want judges who reflect their values

3. If the Court’s policies are out of step with nation’s values, then Court is likely to be reversed