the federal judiciary the judicial power of the united states, shall be vested in one supreme court,...

The Federal Judiciary 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. – Article III, sec. 1

The Federal Judiciary Judiciary Act of 1789

Creates 13 District courts and 3 Circuit courts

Section 25 : Allows one to appeal a case under state law to the Supreme Court if there is a constitutional question.

Today: 94 District Courts

13 “circuits” for the Court of Appeals

The Federal Judiciary Two types of jurisdiction

Original: Ambassadors, other public ministers, and cases involving states

Appellate : Must have a constitutional question

The Federal Judiciary Federalist #78

The court is the “least dangerous branch”

It can only hear real cases or controversies involving real injuries.

It is passive – has to wait for cases to come to it.

Doesn’t grant advisory opinions

The Federal Judiciary Deciding to decide

Writ of Certiorari – “to be informed of”

A writ issued by a superior court requiring an inferior court to produce a certified record of a particular case.

The Federal Judiciary Deciding to decide

The Supreme Court receives 10000 petitions a year.

2000 paid appeals

8000 in forma pauperis (manner of pauper)

the Court agrees to hear about 75-85 cases

About 4% of the paid petitions and 1/10th of 1% of in forma pauperis petitions

The Federal Judiciary Granting Cert

Cert pool = 8 justices belong

4 clerks of each justice read 10000 petitions and write memos

Justice Samuel Alito doesn’t belong

Rule of 4: It takes four justices to agree to hear a case

The Federal Judiciary Fast Track petitions

From the Solicitor General (heard 90% of the time)

Petitions with amicus briefs

“Circuit Conflict” – 80% of the docket

Civil Liberties issues present

US Solicitor General Donald Verrilli

The Federal Judiciary More “cert-worthy” criteria

Good vehicle

Importance

“Sui generis” – one of a kind

Importance to polity (Brown, Roe)

Legal Importance

Affects large # of people (national security)

US Solicitor General Donald Verrilli

The Federal Judiciary Reasons to deny

Absurd claims – “nut cases”

A better case in the pipeline

A petition that raises too many questions

Bad facts

Case deemed “frivolous”

Lack of percolation

Judicial Doctrine Procedural Doctrine:

Governs how lower courts should do their work

Substantive Doctrine:

More like policy making, guides judges into which person should win the case

Both can overlap and conflict with one another, for example searchand seizure doctrine. In order to change it, the court must alter existing methods that the courts have already followed

Interpreting the Constitution

Using Stare Decisis: Translated from Latin, stare decisis means “let the decision stand.”

Judges should decide cases on the basis of previously decided cases.


Using Stare Decisis:

Pros: This method fosters stability in law.

This method would foster predictability to the legal profession.


Using Stare Decisis:

Cons: When looking at majority and dissenting opinions, one can usually find precedents.

It may be difficult finding a “rule of law” in an opinion. For example, consider Taney’s opinion in Dred Scott


Doctrine of Original Intent: In the 1833 case of Barron v Baltimore, Chief Justice Marshall rejected the view that the Bill of Rights covered state actions because the Framers did not intend for it to do so.


Doctrine of Original Intent:

Pros: The Framers acted in a calculated manner.

The justices can deduce constitutional truths which would produce neutral principles of law. In other words, the approach would not reflect the ideological or political values of the judges.

This method fosters stability in law.


Doctrine of Original Intent:

Cons: If ONLY this approach were used, the Constitution would lose its applicability.

The Constitution embodies not one intent, but many. Who WERE the Framers?

From which sources should justices find the original intentions of the Framers?


Doctrine of Literalism: A literalist would scrutinize the Constitution and look at the LITERAL meaning of the words. For example, the 1st Amendment reads, “Congress shall make no law . . . abridging freedom of speech.” No law means NO LAW.


Doctrine of Literalism:

Pros: The approach would not reflect the ideological or political values of the judges.

This method fosters stability in law.


Doctrine of Literalism:

Cons: The approach supposes a precision in the English language. Some words have multiple meanings.

The judges must still interpret the Constitution. Article I, Section 8 gives Congress the power to establish an army and a navy. What about an air force?


Using basic principles and values in the perspective of history: The ideas and concepts upon which the Constitution is built have a life of their own. The Justices should frame their decisions within the context of these values without ignoring the realities of contemporary society.


Using basic principles and values in the perspective of history:

Pros: Justices have a responsibility to not hold back the progress of society by adhering to outmoded methods of interpreting the Constitution.

The Constitution should be a “living, breathing document.”


Using basic principles and values in the perspective of history:

Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation.

This approach would foster judicial activism.


Using contemporary social values in terms of today’s policy needs: The justices should use contemporary social values when interpreting the Constitution.


Using contemporary social values in terms of today’s policy needs:

Pros: Justices have a responsibility take into account social values of the time period interpreting the Constitution.

The Constitution should be a “living, breathing document.”


Using contemporary social values in terms of today’s policy needs:

Cons: This approach gives the Justices too much latitude, and is a subjective, not object method of interpretation.

This approach would lead to decisions much like Korematsu v United States (1944).

The Politics of Opinion Writing

After hearing the case, judges meet and discuss how they will tentatively vote

If the Chief Justice is voting with the majority, he assigns someone the task of writing the Majority Opinion (if voting in the minority, senior member does the job)

Opinions are written for core beliefs of the majority AND to try and convince the dissenters to be with them

Difficult to do, has its costs. For example, language is often skewed as a means to meet in the middle (Brown v. Board never set a timeline because of this)

Checks on the Court? Disregard by enforcement

Legislative Veto (unconstitutional?)

Change the size of the court

Amend the Constitution

Elected members pressure?

Change the law itself

Department of Justice as a tool?

Pick people you trust (President and Senate)

the federal judiciary the judicial power of the united states, shall be vested in one supreme court,...

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