Attorneys from both sides present oral arguments (thirty minutes
per side)
Justices then have secret judicial conference; chief justice
presides
Chief Justice can be persuasive and a leader
Hughes, Marshall, and Rehnquist are examples
Issuing Decisions and Opinions
The majority opinion
Other justices must agree with written opinion
Majority opinion is often rewritten and rethought
Plurality opinion-view held by most of the justices in majority
but not all
Concurring opinion-a justice agrees with majority but for other
reasons
Dissenting opinion-justices who disagree with the majority position
Dissenting opinions can later become the Court's majority
position
Example: Black's 1942 legal counsel position, adopted in
1963
Other Federal Courts
U.S. District Courts
They are the lowest federal courts
There are more than ninety district courts (at least one in
every state)
Federal cases usually originate here
Only federal cases in which juries hear testimony (usually before
one judge)
The idea that lower courts are guided strictly by Supreme Court
rulings by "Upper-court myth"
Southern district court judges saw integration as societally
disruptive
Supreme Court can take a broad and ambiguous legal position
Most federal cases end with the district court's decision
U.S. Courts of Appeals
Decisions based on a review of lower-court records
Do not use juries; no new evidence is submitted in an appealed
case
Try to correct what they consider legal errors
Twelve courts plus U.S. Court of Appeals for the Federal Circuit
Latter specializes in patents and international appeals
Four to twenty-six judges sit on each court
Can sit en banc (one body) to resolve difficult cases
Fewer than 1 percent of cases are later reviewed by Supreme
Court
Special U.S. Courts
U.S. Claims Court-cases where U.S. government has been sued
U.S. Court of International Trade (appeals of U.S. Customs Office
rulings)
U.S. Court of Military Appeals-hears appeals of military courts-martial
The State Courts
Each state decides for itself its court structure and method of
judicial appointment
Judgeships are elective offices in most states
Competitive elections may be partisan or nonpartisan
Merit plan (Missouri Plan)
Commission proposes, governor appoints, then voters approve
Judge than faces "retention election" every six
years
"Federal court myth"-states do not play a subordinate
role:
More than 95 percent of nation's legal cases are heard here
Most crimes, civil disputes are defined by state or local law
Nearly all cases that originate in state courts also end there
Legal and factual determination of the state courts can bind
the federal courts
Federal court rulings can make state decisions a federal matter
(Roev. Wade)
Federal Court Appointees
Selecting Supreme Court Justices and Federal Judges
Supreme Court Nominees
Presidents want a nominee who will reflect their political philosophy
Senate has rejected nearly 20 percent of nominees (partisan
reasons)
Bork's 1987 nomination rejected by Senate Democrats
Ginsburg, less controversial, approved by 96-3 vote in 1993
Senate now feels it must have an overwhelming case for rejection
Lower-Court Nominees
Practice of senatorial courtesy is still followed
Recent presidents have appointed about two hundred lower-court
judges per term
Justices and Judges as Political Officials
Section Introduction
About three of every four appointees behaved on the Supreme
Court as presidents could have expected
The Role of Partisanship
Presidents usually choose members of their own party (Supreme
and lower courts)
Judges still prize their independence, despite partisan appointment
process
GOP appointees tend to more conservative in civil rights/liberties
decisions
Other Characteristics of Judicial Appointees
Most Supreme Court justices have had prior judicial experience
White males overrepresented
The number of women and minority-group judges increased substantially
as a result of the appointments of President Clinton
Supreme Court is demographically unrepresentative:
Brandeis first Jewish justice; Marshall first black justice;
Sandra Day O'Connor-first female; Scalia-first Italian
Never has been a Hispanic or an Asian justice
Scholars disagree on demographic importance
The Nature of Judicial Decision Making
Section Introduction
Courts must develop legal positions within the context of the judicial
process
The most substantial restriction on the courts is the law itself
The Constraints of the Facts
Relevant circumstances of a legal dispute or offense
The Constraints of the Law
Provisions, statutes, precedents that are applicable
The Constitution and Its Interpretation
Some constitutional provisions are open to interpretation
For example, Fourth Amendment and wiretapping
Statues and Their Interpretation
The vast majority of cases that arise in courts involve issues of
statutory law rather than constitutional law
All federal courts are bound by federal statutes
The question for the judge is what the law or regulation was intended
to safeguard
Legal Precedents (Previous Rulings) and Their Interpretation
The U.S. legal system developed from the English common-law tradition
It includes the principle that a court's decision on a case
should be consistent with previous judicial rulings
Precedent is important because it gives predictability to the application
of law
Political Influences on Judicial Decisions
Section Introduction
Judges have leeway in their decisions (rulings are both legal and
political)
Faragher v. Boca Raton an example of ambiguity
"Outside" Influences on Court Decisions
The Force of Public Opinion
Court used phrase "all deliberate speed" in
Brown case to calm South
Lobbying the Courts
Typical are suits brought by ACLU, NAACP
Also amicus curiae ("friend of the court")
briefs-have risen dramatically
The Leverage of Public Officials
Congress can delay or deny nomination of judges or justices
it does not favor
They can speak out against decisions
The president is responsible for enforcement of rulings, and
nominating judges and justices
"Inside" Influences: The Justices' Own Political Beliefs
Justices' political beliefs affect their decisions
Scalia and Thomas (Republican nominees) often differ with Breyer
and Ginsburg (Democrat nominees)
But justices' political differences are seldom total
Most Supreme Court justices hold relatively stable political views
during their tenure
Major shifts in in Supreme Court positions usually shift with changes
in membership
Judicial Power and Democratic Government
Section Introduction
The issue of judicial power is heightened by the fact that federal
judges are not elected
Although subject to the influence of elected institutions, the judiciary
views certain positions as basic to individual rights rather than
as matters of majority postion
The judiciary's power is most evident when it declares executive
or legislative action to be unconstitutional
Even in the area of statutory law there is plenty of room for the
exercise of judicial power
The Debate over the Proper Role of the Judiciary
Section Introduction
The question of legitimacy judicial power centers on the basic
issue of legitmacy
The Judiciary has at times acted like a legislature (busing
and prison reform)
The Judiciary has thus restricted policymaking authority of
states and Congress
The Doctrine of Judicial Restraint
The doctrine of judicial restraint holds that the judiciary
should be highly respectful of precedent and should defer to the
judgment of legislatures
Advocates:
The judiciary assumes policy functions that traditionally
belong to elected institutions
The right of the majority to choose policies must be protected
The judiciary must be concerned with compliance
Romer v.Evans illustrates judicial interference
to some
The Doctrine of Judicial Activism
Courts should enlarge upon the law
Courts should not be "overly deferential" to precedent
or political views
Liberal activists insist on achieving social justice through
activism
Constitution is supposed to protect people from government
Thus judiciary must stand up to coercive lawmaking majority
Supreme Court acted properly in Gideon v.Wainwright
Conservative jurists have also been active
Rehnquist asked Congress to restrict the right of those
convicted in state courts to file habeas corpus appeals in
federal courts
Conservative activism is also evident in recent Supreme
Court cases on the issue of federalism
Bush v. Gore (2000) decision
Could argue that all judges are activists in terms of creative
decisions
The Judiciary's Proper Role: A Question of Competing Values
The dispute between advocates of judicial activism and advocates
of judicial restraint is a philosophical one that involves opposing
values
Value judgments in a society where majority rule and individual
rights conflict
Trade-offs regarding states' rights vs. federal power; legislative
vs. judicial power
