The Judicial Branch

The Federal Courts and the Supreme Court

Constitution Establishes Court

• Art. III, Sect. 1

• Creates Supreme Court and National Judiciary

Sources of US Law

• Common law from England

• US Constitution

• Statutes - laws established by legislatures

• Case Law- judicial interpretations of common law, constitutional law, statutory, and administrative law

Dual Court System

1. National judiciary (100 courts)

2. State courts (thousands)

Two types of court cases: 1.Criminal: fraud, bribery, violent crimes

2.Civil – property money and contracts

Two Kinds of Federal Courts

1.Constitutional courts- Supreme Court, court of appeals, district courts (94)

2.Legislative courts - US court of appeals for Armed Forces, Vets. Claims, Federal claims, Tax court, territorial court, D.C. courts

Federal Court Jurisdiction

Jurisdiction is the authority of a court to hear a case. This is determined by the subject matter, parties involved

1. Original jurisdiction - the court where case is first heard

2. Appellate - hears cases on appeal

Selection of Judges

Municipal and State Court judges are usually elected.

President appoints Federal Court judges with advice and consent of Senate Art. 2 Sect. 2

Politics - usually from same party as President

Terms and Pay

• For life (until retire, resign, or dies)

• Removed only through impeachment

• Congress sets judges pay; retirement is very generous

Supreme Court

Judicial Review- having the final say regarding the Constitution, an act of Congress or treaty

1. Chief Justice John Marshall established judicial review in Marbury v. Madison (1803)

Supreme Court Cases- original jurisdiction

1. disputes involving 2 or more states

2. cases involving ambassadors

How Cases Get to SC

Most cases: Federal District Courts --> Federal appeals court -->Supreme Court

Certificate - lower court asks for help from Supreme Court

Supreme Court may remand a case, which means it sends the case back allowing the lower court ruling to stand

However if four justices agree to hear the case it goes before the Supreme Court. Rule of 4

How Cases Get to SC

Supreme Court reviews the case record. This is called the Writ of Certiorari (to be made more certain)

The court is petitioned to hear 7,500 cases per year but only 90-100 are heard by Supreme Court

Operation of Supreme Court

1. Oral arguments2. Briefs - written arguments from

solicitor general (chief lawyer of country)

3. Court in conference - after arguments are heard the court meets in private to discuss and debate

Court Opinions

1. Unanimous Opinion- all justices agree

2. Majority opinion - majority of justices agree

3. Concurring opinions - other justices write opinion of support

4. Dissenting Opinion - disagreeing opinion and reasons

Supreme Court options

• Court may reverse decision of lower court.

• Court may affirm decision of lower court.

Strict vs. Broad Constuctionism

Strict Constructionism - judges who believe that decisions should be made with strict adherence to original constitutional principles. Sometimes they are called “originalists.” or conservative judges.

Broad constructionism- judges who look at historical context and purpose of the law. (e.g. The Warren Court on Civil Rights), not just the letter of the law.

Judicial Restraint vs Judicial Activism

• Judicial activism refers to judges taking strong positions on the constitutionality of laws made by the legislature.

• Judicial restraint refers to judges often who believe they should not intervene in laws made by elected representatives.

Conservative and Liberal Judges

• Although judicial activism and broad constructivist rulings are often associated with liberal judges (e.g. Warren Court), increasingly it is being argued that strict constructionist judges may also be judicial activists. (e.g. the Rehnquist Court) and current conservative Supreme Court Justices who seek to overturn legislative rulings they disagree with.