THE JUDICIARY
Chapter 10
OConnor and Sabato
American Government:
Continuity and Change
THE JUDICIARY
In this chapter we will cover
The Constitution and
the Creation of the National Judiciary
The Judiciary Act of
1789 and the Creation of the Federal Judicial System
The American Legal
System
The Federal Court
System
How Federal Court
Judges are Selected
The Supreme Court
Today
How the Justices Vote
Judicial Policy
Making and Implementation
THE JUDICIARY
Alexander Hamilton
penned in the Federalist # 78 that the judiciary would be the least
dangerous branch of government. It lacked the teeth of both the other
branches of government; it had neither the power of the sword nor the power of
the purse.
Today the federal courts
are very powerful.
Nevertheless, the courts
still have two basic limitations: they have neither the power of the purse, nor
the power of the sword.
The court cannot fund
programs or their implementation nor can it force compliance with its rulings.
The Constitution and the
Creation of the National Judiciary
Article III of the
Constitution establishes:
a Supreme Court in which
the judicial power of the United States is vested
life tenure or 'good
behavior' for judges
judges receive
compensation that cannot be diminished during their service
such inferior courts as
Congress may choose to establish
the original
jurisdiction of the Supreme Court
The intent of Article
III was to remedy the failings of the Articles of Confederation which left
judicial matters to the states.
Judicial Review
Judges have used this
power sparingly.
The power has only been
used about 140 times to strike down acts of Congress.
It has been used more
frequently (over 1200 times) to invalidate acts of state legislatures.
The Judiciary Act of 1789 and the Creation of the
Federal Judicial System
The
American legal system is a dual system:
state
courts--actually 50 different systems
federal
courts
Both
systems have three tiers (established by the Judiciary Act of 1789):
trial
courts--litigation begins and courts hear the facts of the case at hand
(original jurisdiction)
appellate
courts--decide questions of law, not fact (appellate jurisdiction)
high or
supreme courts
Judicial Review
Judicial
review is the power of a court to decide if a law or other legal issue
contravenes the Constitution, and to then overturn it.
This
power is not mentioned in the Constitution.
Judicial
review was established by the Marshall Court for itself and posterity in Marbury
v. Madison (1803).
Marburys
long-term effect has been to allow the Court to have the final say in what the
Constitution means.
The American Legal
System
A
dual system comprised of the federal court system and the judicial systems of
fifty states.
Which court is responsible for a particular case
depends on jurisdiction.
The
law is composed of both criminal and civil aspects.
The Federal Court System
The
federal district courts, circuit courts of appeals, and the Supreme Court are
called constitutional courts due to their creation by the U.S.
Constitution.
Additionally,
legislative courts are set up by Congress for specific purposes.
Jurisdiction of the
Federal District Courts
Cases that involve the
federal government as a party.
Cases presenting a
federal question based on a claim under the Constitution, a treaty with another
nation, or a federal statute.
Cases involving civil
suits in which citizens are from different states, and the amount of money at
issue is more than $75,000.
Unresolved cases can be
heard by the Courts of Appeals and then the Supreme Court.
How Federal Court Judges
Are Selected
The selection of judges
is a very political process.
Judges are nominated by
the President and confirmed by the Senate.
Often presidents solicit suggestions from members of
the House of Representatives, Senators, their political party, and others.
Provides the President
opportunity to put a philosophical stamp on federal courts.
Who are Federal Judges?
Typically federal judges have:
held previous political office such as prosecutor or
state court judge
political experience such as running a campaign
prior judicial experience
traditionally been mostly white males
been lawyers
Federal Selection Process
Nomination Criteria
4No constitutional
qualifications
4Competence
4Ideology/Policy
Preferences
4Rewards
4Pursuit of Political
Support
4Religion
4Race and gender
The Supreme Court Today
According to a 1990
poll, only 23% of Americans knew how many justices sit on the Supreme Court,
and two-thirds could not name a single member.
In 1998, a poll of
teenagers showed that only 2% could name the Chief Justice.
The Supreme Court, and
the federal court system, have a number of powers and some significant
limitations.
The courts are peopled
by individuals who, like all of us, are influenced by participation in society.
How the Justices Vote
Legal Factors
Judicial Philosophy
Judicial Restraint - advocates minimalist roles for judges
Judicial Activism - feels that judges should use the law to promote
justice, equality, and personal liberty.
Precedent
Prior judicial decisions
serve as a rule for settling subsequent cases of a similar nature.
How the Justices Vote
Extra-Legal Factors
Behavioral
Characteristics
The personal experiences
of the justices affect how they vote. Early poverty, job experience, friends,
and relatives all affect how decisions are made.
Ideology
Ideological beliefs
influence justices voting patterns.
The Attitudinal Model
A justices attitudes
affect voting behavior.
Public Opinion
Justices watch TV, read
newspapers, and go to the store like everyone else. They are not insulated from
public opinion and are probably swayed by it some of the time.
How Supreme Court
Decisions are Made
Judicial Policy
Making
and Implementation
All judges make policy.
This was particularly
noticeable following the Court-ordered desegregation the in 1954 Brown
ruling.
Courts do not have the
power to implement their decisions. The Executive Branch must enforce the
Courts decisions.