The Courts

The Courts

Only branch of the American government that is NOT ELECTED

However – still VERY political, and plays into modern-day political battles on a regular basis

Tocqueville – noticed that most political issues will be addressed by the court in due time

COMMON LAW TRADITION

Began with the Norman conquest of England (1066)

Unified the country by establishing King’s Courts (as opposed to local courts which solved problems unilaterally)

Under Norman law, sought to create a legal system that was UNIFORM throughout the country

As court cases accumulated, judges created Year Books, to provide judges in future cases with a legal background against which to decide cases.

Evolved into a legal system now called common law – decisions are shaped according to prevailing custom. Decisions applied to similar cases – and gradually became uniform (or common) to the nation

Precedent – a key legal concept in English law (and consequently, American law).

Stare Decisis – “to stand on decided cases” – judicial policy of following precedent

CA example – if the Supreme Court of CA makes a decision (say, same sex marriage), a lower court will have to follow that decision. However, lower CA courts do not have to pay attention to Supreme Courts in UT or NV

Most former Commonwealth nations (US, Canada, India, NZ, Australia) have common law

The other main type of legal system – civil law – is used in Continental Europe. Civil law – origins in Roman law, has a set of laws that are codified, or written down, and judges interpret them.

Sources of American Law

Constitutions

Note the plural. The US Constitution is supreme law, but each state has its own Constitution. They are all sources for legal decisions.

Statutes and Administrative Regulations

Statutes typically play a much more important role in civil law systems – but they are gaining in importance in the American legal system.

Statute – law enacted by a legislature

Federal statutes – can only relate to areas of federal jurisdiction (inter-state commerce, federal taxation)

State statutes – criminal codes, commercial laws

Cities, towns, etc also have statutes – which are called ordinances

Usually public safety and zoning issues

Case Law

- First refers to judicial interpretations of common law principles and doctrines

- Also includes interpretations of constitutional law, statutory law, and administrative law

FEDERAL COURT SYSTEM

Jurisdiction – the authority of a court to decide certain cases.

A civil court cannot decide a criminal case.

A federal court cannot decide a criminal case that only occurred within 1 state.

Federal Courts : can only decide matters on a federal question or a “diversity of citizenship”

Federal Question: when a case is based, in part, on US Constitution, treaty, or federal law

Diversity of Citizenship – when a case arises that involves citizens from different states – or if it is between US citizens and foreign nationals

Amount in controversy – must be at least $75,000

Standing to Sue You must be an “interested party” (directly affected by legal outcome) to sue

Remember – Dred v. Scott

Individual can only sue if they have been suffered a harm, threatened by harm

Circumstances must also fall under the category of JUSTICIABLE CONTROVERSY

Real and substantial (not hypothetical, academic)

Types of Federal Courts

US District Courts – trial courts

Court in which most cases begin

Courts of “general jurisdiction” – they can hear cases on many issues

Other courts have “limited jurisdiction” – can only try cases that have very specific claims (tax, international trade, etc)

Always at least 1 federal court in each state – but how many is dependent on census returns

If a party is unhappy with the trial verdict, they can then take their case to a federal appellate court. US Courts of Appeal are regional – so they can be based in Wyoming, but hear an appeal from Kansas.

US Court of Appeals

13 in total

Also called Circuit Courts of Appeals

12 of these courts hear appeals from their geographic regions

The 13^th is called the Federal Circuit, has NATIONAL APPELLATE JURISIDICTION – meaning, what it decides has national implications

A note on appeals: it is not a new trial. 3 judges sit in a room, read the trial proceedings, and determine if the trial court committed an error

Appeals are only granted if there are grievous miscarriages of justice/blatant ignorance of procedure

US Supreme Court

In 1789 – 5 justices

Since 1869 – 9 justices

Supreme Court is exactly that – SUPREME

Congress can create “inferior” courts – but never add or diminish to the power of the Supreme Court

SC – can exercise ORIGINAL JURISDICTION (act as a trial court) in a few instances: issues involving foreign diplomats, if a state is a party to a suit, if a presidential election needs to be decided…)

Overwhelmingly, though, it is an appellate court

Keep in mind – SC can only review state supreme courts’ decisions if it involves a federal matter

Specialized Federal Courts and War on Terrorism

FISA Court: Foreign Intelligence Surveillance Act

This court hears requests for warrants for surveillance of suspected spies

Court has approved thousands. There is no public access for this trial.

After 9/11 – Bush extended power of FISA Court

Previously, FISA was only allowed to issue warrants for secret DOMESTIC surveillance to gather information on foreign intelligence

Now – allowed secret DOMESTIC surveillance to spy on domestic “threats”

Alien “Removal Courts”

Came on the heels of the Anti-Terrorism and Effective Death Penalty Act of 1996

Created this a. r. court to remove suspected “alien terrorists” from US territory

Judges decide if there is probably cause for deportation

Case then moves to district court, proceedings are in public – but defendant does not have right of access to prosecutor’s documents (as in most trials)

Parties to Lawsuits

Plaintiff – (whoever initiates the lawsuit)

Defendant – (person against whom the lawsuit is brought)

Sometimes, plaintiffs can number in the thousands – and this is a “class-action suit” – it’s decided that, instead of trying each case individually and tying up thousands of hours in the courts, you have one trial that conglomerates the complaints of all concerned individuals

Think Erin Brokovich

Interest Groups – play an increasing role in litigation

Can post amicus curiae briefs, and also help organize class action suits

Procedural Rules

“Points of order,” “Objection,” “Relevance,” etc

Try to protect all parties to a suit, against self-incrimination, slander, undue speculation, etc

Judges enforce the procedure. It is not up to them (in most courts) to decide on the merits of a case – it is to ensure a fair and speedy trial

When a judge orders an attorney to withdraw an objection, or drop a line of questions s/he deems “irrelevant,” the attorney is legally bound to accept this decision. If they don’t, they can be held in “contempt of court” – usually a fine, and occasionally, a very short spell in prison (1 day, etc)

Supreme Court at Work

Begins its term the first Monday in October

Usually ends in late June/early July

If they have not finished the cases, it just rolls over into October

SC actually decides very few cases – are asked to review 7000 cases each year, usually only deliver formal opinions on 80-90 cases

(This is up from 1460 in 1945).

What are some of the topics that the SC has decided on lately?

Which cases reach the Supreme Court?

Court chooses which cases it decides (save for debate)

SC doesn’t have to explain why it chooses to do one case and rejects another

Factors that Influence Decision

Has a lower court not fully answered a legal question, and should this be rectified?

Has a lower court decided a case in a way that contradicts previous SC rulings?

Does the issue have added significance beyond the immediate parties?

Solicitor-General: (high ranking appointee within justice dept) – might be pressuring the SC to take a case

Granting Petitions for Review – if a Court wants to hear a case, writes a write of certiorari – order issued from a higher court to a lower court to send all documents relating to a specific case for review

Four justices MUST approve this writ – known as “rule of four”

Deciding Cases

First, justices research the legal and constitutional issues surrounding this case

(Have the help of law clerks – each has 4 – very prestigious law appointment for law students)

Court does not hear the facts of the trial

What then happens is that a representative from both sides will each deliver a 15-minute oral argument, attempting to convince the justices that they are right

Justices can ask questions

All of this is tape-recorded

Justices then meet behind closed doors to discuss the merit of both arguments. This is all done very secretly – nobody has the right to listen in or obtain the notes.

Decisions and Opinions

Say a court reaches a decision. 5 justices for, 4 against. One of the 5 will then write the official opinion – stating why the Court decided in favor of one side over the other, and explaining the constitutional/legal precedents that led them to this decision

At this point, the verdict of a lower court can be affirmed (SC is in agreement), it can be reversed (a reversible error was committed during trial, or jury was instructed improperly)

Sometimes, case can be remanded – sent back to the lower court to be tried again

If the court’s opinion is unsigned – it’s called an opinion “per curiam” (by the court)

Unanimous opinion – all judges agree

Majority opinion – 5-4; 6-3; 7-2; 8-1

An opinion is written explaining the views of the majority

If a justice is in agreement with the decision, but feels another point needs to be highlighted about the case, he can write a CONCURRING OPINION

Dissenting Opinion – separate opinion in which a judge dissents from the conclusion reached by the majority and expounds his/her views on case

Most famous dissenting opinion? Harlan’s Dissent, in Plessy vs. Ferguson – often cited in cases today, most famously in Brown vs Board of Education

Selection of Federal Judges

A very politicized process

In fact – in 2000 presidential campaigns, one of the main concerns was the expected vacancy of 2-3 Supreme Court seats, and the victor party would be choosing the replacements

Judicial Appointments

850 in total

A variety of people come to the President with suggestions to fulfill these appointments – dept of justice, senators, candidates, bar association)

Many things are considered – political positions, previous legal leanings (more exec power or less? Judicial freedom or judicially strict?), gender, race, location, etc

Nomination Process:

President formally nominates candidate

Senate then confirms or rejects candidate

Senate Judiciary Committee – holds a hearing, vets the candidate, makes sure that they’re not criminals, extremists, etc. John Roberts, Sam Alito

Senatorial courtesy – tradition that allows a senator to veto an appointment if it is within his/her state

Federal District Court Judgeship Nominations – President officially nominates – but because these are local judgeships, usually comes from local Senator

Considered part of presidential patronage

Carter – established an independent commission to choose judges

Reagan – abolished these commissions

Orrin Hatch (R-UT) announced in 2000 that Democrats would no longer be able to use Senatorial courtesy to block judicial appointments. Didn’t come into effect until 2002 (because of Jim Jeffords)

Federal Courts of Appeals Appointments – fewer appointments here than district ones, but are more important

Handle much more sensitive topics that have national significance

Considered a “stepping stone” to Supreme Court

Supreme Court Appointments

Hold a variety of positions – federal court of appeals, private practice, secretary of state, navy, postmaster general, secretary of labor, professors of law (Taft)

Partisanship and Judicial Appointments

Discuss John Roberts, Sam Alito

Senate’s Role

Can be a problem when getting Supreme Court nominees approved

20% of them are not

From Andrew Jackson to present

Discuss Clarence Thomas – Confirmed in 1991

Nominated by Pres. H. W. Bush – seat vacated by Thurgood Marshall, the first black Supreme Court justice

Also, very conservative

American Bar Association – did not give him a unanimous endorsement

NAACP opposed his nomination, on account of his stance against affirmative action and other programs

Anita Hill – University of Oklahoma law professor

Used to be a coworker of Thomas’ when they both worked at the US Dept of Education and Equal Employment Opportunity Commission

Claimed he sexually harassed her repeatedly during those times

Testified to the FBI that he used sexually coarse language with her

Senate would narrowly confirm him, 52-48

Policy-Making and the Courts

Judicial Review

Determines whether laws/actions by other branches of government is constitutional

Established by Marbury vs Madison

Some lawyers/legal scholars claim that the power of judicial review gives unelected judges too much influence

Others say it is necessary to protect rights

Judicial Activism – doctrine holding that the Supreme Court should take an active role by using its powers to check the activities of governmental bodies when those bodies exceed their authority

The Warren Court – was originally seen as a republican (was a judge in CA). Eisenhower wanted to put another Republican on the bench – but Warren turned out to be one of the most liberal judges the Supreme Court ever had (“biggest damned fool mistake I ever made”)

Under Warren:

Brown v. Board of Education (1954)

“One man, one vote” cases (1962-1964 (dramatically altered the power of rural areas in many states)

Hernandez vs. Texas (1966) – gave Mexican-Americans the right to sit on juries

Miranda v. Arizona (1966) – Miranda rights

Judicial Restraint

Doctrine holding that the SC should defer to the decisions made by the elected representatives of the people in the legislative and executive branches

Because judiciary is UNELECTED, must be extra-wary of becoming too powerful

By overruling decisions/actions/laws passed by exec and legislative branches – you’re overruling the wishes of the electorate (very conservative doctrine)

Strict vs. Broad Construction

Strict Construction – judicial philosophy that looks to the “letter of the law” when interpreting the Constitution for a particular reason

Basically – if the founding fathers did not expressly state that such a law should be passed, or that a particular law included certain matters, then you can not infer that it does

STICK TO THE TEXT

Broad Construction – judicial philosophy that looks to the context and purpose of a law when making an interpretation

So let’s take the civil rights movement.

Plessy vs Ferguson (1896) – interpreted the 3/5 rule of the constitution literally

Did not count African-Americans as citizens. This is STRICT CONSTRUCTION.

1865 – Civil War Amendments. African-Americans are now citizens. BROAD CONSTRUCTION.