Judiciary

1. Longman
PoliticalScienceInteractive
Magleby & Light
Government by the People
Chapter 14
The Judiciary:
The Balancing Branch
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2. The Supreme Court’s Shift
to the Right
When Sandra Day
O’Connor retired from the
Supreme Court, a pivotal
swing vote disappeared
George W. Bush’s
appointments of Samuel
Alito and John Roberts
shifted the Court to the
right
Example: 2007 decision to
strike down as
unconstitutional the use of
race in assigning pupils to
individual public schools
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3. Understanding the Federal
Judiciary
The Framers viewed the federal
judiciary as an important check
against Congress and the president
But the judiciary has no influence
over the “sword” or the “purse”
Judicial power is ensured via:
– Insulation from public opinion
– Insulation from the rest of government
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4. Judicial Review
The power of a court to refuse to
enforce a law or government
regulation that, in the opinion of
the judges, conflicts with the U.S.
Constitution or, in a state court, the
state constitution
Only a constitutional amendment or
a later Supreme Court can modify
the Court’s decisions
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5. Adversary System
The Adversarial The Inquisitorial
System System
Judges serve as Judges take an
relatively passive active role in
and detached discovering and
referees who do not evaluating evidence,
argue with will question
attorneys or witnesses, and
challenge evidence intervene as deemed
necessary
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6. Adversary System
Court of law is a neutral arena
where two parties argue their
differences
The federal government brings
criminal cases
The federal judiciary decides the
cases
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7. Types of Legal Disputes
Criminal Law Civil law
– Crimes against the – Relations between
public order individuals, and their
– Liberty is at stake legal rights
– Right to government- – Typically monetary
provided attorneys punishment
– Right to trial by jury
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8. The Scope of Judicial Power
Judicial power is passive and reactive
Power only to decide justiciable disputes
– Harm must have been done
– Case must be ripe
– Case cannot be moot
– Case cannot be political
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9. Prosecuting Cases
U.S. Department of Justice
– Led by attorney general
– Assisted by solicitor general
– Provides public defenders
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10. Types of Federal Courts
Article III
(Constitutional)
Versus
Article I (Legislative)
Courts
Original Jurisdiction Appellate Jurisdiction
The authority of a court The authority of a court
to hear a case “in the to review decisions
first instance” made by lower courts
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11. Level One:
District Courts
District courts hear nearly 258,000 civil
cases and more than 68,000 criminal
cases annually
Use both grand juries and petit juries
District judges are appointed by the
president, subject to confirmation by the
Senate, and hold office for life
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12. Level Two:
Circuit Courts of Appeals
The 11 U.S. Judicial Circuits
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13. Level Three:
The Supreme Court
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14. Judicial Federalism: State and
Federal Courts
Dual court system
Two court systems,
state and federal,
exist and operate at
the same time in the
same geographic
areas
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15. The Politics of Appointing
Federal Judges
No Constitutional requirements
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16. Making the Initial Choices
Article II:
--President has power to appoint
--Senate has power of advice and consent
Senatorial courtesy
Chief Justice John Roberts (far
right) congratulates Justice Samuel
A. Alito, Jr. at his swearing-in
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ceremony as a new member of the

17. Senate Advice and Consent
Senate Confirmation
Hearings
Except for Robert Bork,
most judicial nominees
have refused to answer
questions that might
reveal how they would
decide a case
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18. The Role of Party,
Race, and Gender
Since FDR, only 10 percent of judicial
appointments have gone to candidates of the
opposition party
Jimmy Carter brought increased diversity to
the lower courts
Ronald Reagan appointed fewer minorities, but
was the first to appoint a woman to the Supreme
Court
Nearly 50 percent of Bill Clinton’s appointees
were women and minorities
Roughly 32 percent of George W. Bush’s
nominees have been women and minorities
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19. The Role of Judicial Philosophy
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20. Reform of the Selection Process
The lengthy and embattled
confirmation hearings of Robert
Bork (1987) and Clarence
Thomas (1991) led many to ask if
the confirmation process
was in need of reform
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21. How Do Cases Rise to the Supreme Court?
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22. The Eight Steps to Judgment
Reviewing appeals Meeting in
– Writ of certiorari conference
– In forma pauperis Explaining the
– Docket decision
Granting the appeal – Opinions of the Court
Briefing the case – Dissenting opinion
– Amicus curiae briefs – Concurring opinion
Holding the oral Writing the opinion
argument Releasing the opinion
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23. The Supreme Court Docket
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24. Influences on Supreme Court
Decisions: The Chief Justice
Appointed by the
president upon
confirmation by the
Senate
Responsible for assigning
judges to committees,
responding to proposed
legislation that affects the
judiciary, and delivering
the annual Report on the
State of the Judiciary
Former Chief Justice William H.
Rehnquist
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25. Influences on Supreme Court
Decisions: Law Clerks
Chosen by each justice
Increased number over time,
leading to longer and more
elaborate opinions
Debate over how much influence on
Court decisions
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26. Influences on Supreme Court
Decisions: The Solicitor General
Represents the federal government
before the Supreme Court
Files amicus curiae briefs in cases
in which the federal government is
not a party
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27. Influences on Supreme Court Decisions:
Citizens and Interested Parties
Also may file amicus curiae briefs
Increasingly used to counter the
positions of the solicitor general
and the government
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28. After the Court Decides
Sometimes remands the case
Uncertain effect on individuals who
are not immediate parties to the
suit
Decisions are sometimes ignored
Difficult to implement decisions
requiring the cooperation of large
numbers of officials
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29. Limits on Judicial Action:
Adherence to Precedent
Stare Decisis
The rule of precedent, whereby a rule or
law contained in a judicial decision is
commonly viewed as binding on judges
whenever the same question is presented
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30. Limits on Judicial Action:
Congress and the President
Changing the numbers
Changing the jurisdiction
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31. Debating the Proper
Role of the Courts
An independent judiciary is a
hallmark of a constitutional
democracy and a free society
Yet, judicial independence is often
criticized when judges make
unpopular decisions
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