Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
The Judiciary
CHAPTER9
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Court Structure and Processes
Explain how American court sy...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Action in the Court Pathway
Characterize the litigation str...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Court Structure and Process
• Adversarial versus inquisitor...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Structure of the American Court System
9.1
Back to Learning...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Trial Courts
• U.S. district courts.
– 94 Districts Courts
...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Trial Courts
• Original jurisdiction
• Lawyers present argu...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Appellate Courts
• Divided into twelve circuits and also in...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
The U.S. Supreme Court
• The justices choose 70 to 80 cases...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Geographic Jurisdiction of Federal Courts
The U.S. Courts o...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
The Power of American Judges
• Federalist No. 78, Alexander...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Marbury v. Madison
• John Adams lost the presidential elect...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Federal Judges’ Protected
Tenure
• Federal judges are nomin...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial Selection
• The Constitution specifies that federa...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial Selection (cont’d)
• States use four primary metho...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial Decision-Making
• Judges make decisions by followi...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Strict Construction Versus
Activism
• Strict constructionis...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Political Science and Judicial
Decision-Making
• Legal mode...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Action in the Court Pathway
• Courts are not easily accessi...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Interest Group Litigation
• Expertise
– Knowledge in the ar...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Elements of Strategy
• Selection of Cases
– Test cases with...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Implementation and Impact of Court
Decisions
• Court decisi...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial Policymaking and
Democracy
• American judges posse...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
A dual court system means
A. separate courts that handle ci...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
A dual court system means
A. separate courts that handle ci...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Which of the following is NOT true about
trial courts?
A. T...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Which of the following is NOT true about
trial courts?
A. T...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial review was established by
A. McCollough v. Marylan...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Judicial review was established by
A. McCollough v. Marylan...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Which of the following is NOT true about
the way judges obt...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Which of the following is NOT true about
the way judges obt...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
What do you think?
Do judges ‘legislate’ from the bench?
YE...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
What do you think?
Given the nature of what judges do,
shou...
Copyright © 2011 Pearson Education, Inc. Publishing as Longman
Credits
282, AP Images/Evan Vucci; 284, Ben Curtis/ Pool/ C...
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Chapter 9 - Judiciary

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  • Adversarial System: Legal system used by the United States and other countries in which a judge plays a relatively passive role as attorneys battle to protect each side’s interests. In inquisitorial systems, judges take an active role in investigating cases and questioning witnesses. Dual Court System: Separate systems of state and federal courts throughout the United States. Each state court system is responsible for interpreting the laws and constitution of that specific state, while the federal courts are responsible for the U.S. Constitution and laws enacted by Congress. Criminal prosecutions involve accusations that one or more individuals broke the law and therefore should be punished. Civil lawsuits , involve people or corporations seeking compensation from those whom they accuse of violating contracts or causing personal injuries or property damage. Civil lawsuits can also seek orders from judges requiring the government, corporations, or individuals to take specific actions or refrain from behavior that violates the law.
  • Statutory law: Laws written by state legislatures and by Congress.
  • Trial courts are courts of original jurisdiction, meaning they receive cases first, consider the available evidence, and make the initial decision. Jury trials involve the use of a group of citizens who will hear evidence, determine if sufficient evidence has been presented to arrive at a guilty verdict or not; they may also be involved in the sentencing of a defendant found guilty of a crime. Alternatively, the defendant can waive his right to a trial by jury and request a bench trial in which a single judge is the decision maker
  • Appellate jurisdiction means reviews conducted for specific errors that allegedly occurred in trial court processes or in decisions of appellate courts beneath them in the judicial hierarchy. Appellate briefs, submitted by each side’s attorneys will present the argument in written form and then, if the court hears the case, each side’s attorneys will present oral argument. Appellate judges issue detailed written opinions to explain their decisions. Majority opinion: Appellate court opinion that explains the reasons for the case outcome as determined by a majority of judges. This opinion represents the views of the majority of judges who heard the case. Concurring opinions are written by judges who agree with the outcome favored by the majority but wish to present their own reasons for agreeing with the decision. Dissenting opinions represents the appellate court opinion explaining the views of one or more judges who disagree with the outcome of the case as decided by the majority of judges.
  • Writ of certiorari , a legal order that commands a lower court to send a case forward. The rule of four refers to the requirement that four of the nine justices must vote to hear a specific case in order for it to be scheduled for oral arguments.
  • In which circuit do you live?
  • Judicial review : The power of American judges to nullify decisions and actions by other branches of government, if the judges decide those actions violate the U.S. Constitution or the relevant state constitution. Federalist No. 78, authored by Alexander Hamilton, argued in favor of judicial review, asserting not only that legislative acts violating the Constitution must be invalid but also that federal judges must be the ones who decide whether statutes are unconstitutional. Marbury v. Madison (1803): A case in which the U.S. Supreme Court asserted the power of judicial review, despite the fact that the concept is not explicitly mentioned in the U.S. Constitution.
  • Judiciary Act of 1789 , the act of Congress that designed the federal court system and established its procedures. A writ of mandamus is an order from a court mandating that a government official perform some official duty of their office they are refusing to perform.
  • Article III of the Constitution specifies that federal judges will serve “during good Behaviour.” Effectively, that means lifetime tenure, since judges typically are removed through impeachment by Congress only if they commit a crime. Impeachment: Process in Congress for removal of the president, federal judges, and other high officials. Court-packing plan: President Franklin D. Roosevelt’s unsuccessful proposal in 1937 to permit the appointment of additional justices to the U.S. Supreme Court.
  • Senatorial Courtesy: Traditional deference by U.S. senators to the wishes of their colleagues concerning the appointment of individuals to federal judgeships in that state. Members of the minority political party in the Senate may block a vote through a filibuster. A filibuster can be closed with a vote of cloture.
  • Lower-court judges in particular must be concerned that their decisions will be overturned on appeal to higher courts, if they make decisions that conflict with the judgments of justices on courts of last resort. Case precedent: the body of prior judicial opinions, especially those from the U.S. Supreme Court and state supreme courts, which establishes the judge-made law developed from interpretations of the U.S. Constitution, state constitutions, and statutes.
  • Critics of original intent argue that there is no way to know exactly what the Constitution’s authors intended with respect to each individual word and phrase, or even whether one specific meaning was intended by all of the authors and ratifiers. Moreover, these critics typically argue that the ambiguous nature of many constitutional phrases, such as “cruel and unusual punishments” and “unreasonable searches and seizures,” represents one of the document’s strengths, because it permits judges to interpret and reinterpret the document in light of the nation’s changing social circumstances and technological advances. Flexible interpretation: An approach to interpreting the U.S. Constitution that permits the meaning of the document to change with evolving values, social conditions, and problems.
  • The idea that justices follow specific theories of constitutional interpretation and carefully consider precedents in making decisions is often labeled the legal model. In the attitudinal model , the Supreme Court justices’ opinions are driven by their attitudes and values. Advocates of this model see the justices’ discussion of interpretive theories and precedent as merely a means to obscure the actual basis for decisions and to persuade the public that the decisions are, in fact, based on law. The strategic voting model posits that Supreme Court justices vote strategically in order to advance their preferred goals, even if it means voting contrary to their actual attitudes and values in some cases. New institutionalism is an approach that emphasizes understanding courts as institutions and seeing the role of courts in the larger political system. The adherents of new institutionalism do not necessarily agree with one another about the causes and implications of judicial action. They do, however, seek to move beyond analyzing judicial decisions (or indecisions) solely by looking at the choices of individual Supreme Court justices. Instead, they may focus on the Supreme Court’s processes, its reactions to statutes that undercut particular judicial decisions, or its decisions that minimize direct confrontations with other branches of government.
  • Typically, this policy-shaping process is used by legal professionals who have technical expertise and financial resources. The court pathway is often attractive to small interest groups because it is possible to succeed with fewer resources than are required for lobbying or mass mobilization.
  • Pro bono is from the Latin phrase pro bono publico and is when attorneys work for reduced fees or for free.
  • Test case: A case sponsored or presented by an interest group in the court pathway with the intention of influencing public policy. Amicus brief: A written argument submitted to an appellate court by those who are interested in the issue being examined but are not representing either party in the case; often submitted by interest groups’ lawyers to advance a specific policy position.
  • Court decisions are not automatically implemented or obeyed: Judges must rely on public obedience and the executive branch to enforce their decisions US v. Nixon (1972) Cherokee Nation v. the State of Georgia (1831) Brown v. Board of Education (1854)
  • American judges possess the power to shape public policy but this power has risks. What if life-tenured judges make decisions that create bad public policy? What if they make decisions that nullify popular policy choices made by the people’s selected representatives
  • Trial courts are courts of original jurisdiction, meaning they receive cases first, consider the available evidence, and make the initial decision. Jury trials involve the use of a group of citizens who will hear evidence, and determine if sufficient evidence has been presented to arrive at a guilty verdict or not; they may also be involved in the sentencing of a defendant found guilty of a crime. Alternatively, the defendant can waive his right to a trial by jury and request a bench trial in which a single judge is the decision maker
  • Trial courts are courts of original jurisdiction, meaning they receive cases first, consider the available evidence, and make the initial decision. Jury trials involve the use of a group of citizens who will hear evidence, and determine if sufficient evidence has been presented to arrive at a guilty verdict or not; they may also be involved in the sentencing of a defendant found guilty of a crime. Alternatively, the defendant can waive his right to a trial by jury and request a bench trial in which a single judge is the decision maker
  • Chapter 9 - Judiciary

    1. 1. Copyright © 2011 Pearson Education, Inc. Publishing as Longman
    2. 2. Copyright © 2011 Pearson Education, Inc. Publishing as Longman The Judiciary CHAPTER9
    3. 3. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Court Structure and Processes Explain how American court systems are organized. The Power of American Judges Identify the reasons why American judges are powerful actors in the governing system. Judicial Selection Outline the selection process for federal judges. Judges’ Decision-Making Explain the theories concerning how Supreme Court justices reach their decisions. Key Objectives 9.1 12. 9.4 9.3 9.2 Click on buttons to go to the relevant slide.
    4. 4. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Action in the Court Pathway Characterize the litigation strategies used in the court pathway. Implementation and Impact of Court Decisions Evaluate the courts’ effectiveness in enforcing judicial decisions. Judicial Policymaking and Democracy Describe the debate over whether it is appropriate for judges to shape public policy in a democracy. Key Objectives After completing this chapter, you should be prepared to: 9.5 9.7 9.6
    5. 5. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Court Structure and Process • Adversarial versus inquisitorial systems • The U.S. court system is a dual court system containing: – Trial courts – Appellate courts – Supreme court • These courts’ jurisdiction includes – Criminal prosecutions – Civil lawsuits Explain how American court systems are organized.9.1 Back to Learning Objectives
    6. 6. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Structure of the American Court System 9.1 Back to Learning Objectives
    7. 7. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Trial Courts • U.S. district courts. – 94 Districts Courts – Each state has at least 1 district court – Within each district, there may be multiple judges and courthouses – District court jurisdiction includes • Matters concerning federal law (constitutional or statutory) • Certain lawsuits between citizens of different states 9.1 Back to Learning Objectives
    8. 8. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Trial Courts • Original jurisdiction • Lawyers present arguments – Jury trial – Bench trial • Most cases do not reach trial – Civil trials are concluded through settlement – Criminal trials are concluded through plea agreements 9.1 Back to Learning Objectives
    9. 9. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Appellate Courts • Divided into twelve circuits and also includes a special circuit for patent and trade disputes • The highest appellate court is the U.S. Supreme Court • No juries • Judges – Hear oral arguments and review appellate briefs – Judges will issue opinions • Majority opinions • Concurring opinions • Dissenting opinions 9.1 Back to Learning Objectives
    10. 10. Copyright © 2011 Pearson Education, Inc. Publishing as Longman The U.S. Supreme Court • The justices choose 70 to 80 cases which petitioned the Court seeking a writ of certiorari – A significant constitutional question must be present – The issue must not be moot – The “rule of four” • Appellate brief are reviewed and oral arguments are heard • The justices meet privately and decide in conference • If the chief justice is in the majority, he selects the justice who will author the opinion, if he is not, the next most senior justice will assign the opinion • The opinion of the court is announced and the ruling is published 9.1 Back to Learning Objectives
    11. 11. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Geographic Jurisdiction of Federal Courts The U.S. Courts of Appeals are divided into regional circuits throughout the country. Each numbered circuit handles appeals from federal cases in a specific set of states. 9.1 Back to Learning Objectives
    12. 12. Copyright © 2011 Pearson Education, Inc. Publishing as Longman The Power of American Judges • Federalist No. 78, Alexander Hamilton called the judiciary the “least dangerous” branch of government • Judges provide meaning for laws created by other institutions, as well as for law they develop themselves in judicial decisions Identify the reasons why American judges are powerful actors in the governing system. 9.2 Back to Learning Objectives
    13. 13. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Marbury v. Madison • John Adams lost the presidential election to Thomas Jefferson. Before leaving office, he nominated and the Senate confirmed a number of magistrates. • William Marbury, one of those named, failed to receive his commission. • Using the Judiciary Act of 1789, Marbury sought relief from the Supreme Court requesting a writ of mandamus against John Madison. • The court ruled that Marbury, although entitled to his commission, relied on an unconstitutional provision of the Judiciary Act in seeking a writ of mandamus from the Supreme Court without first proceeding through the lower courts. 9.2 Back to Learning Objectives
    14. 14. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Federal Judges’ Protected Tenure • Federal judges are nominated by the president and confirmed by the Senate for lifetime appointments • Lifetime appointments are controversial – Lack accountability – Detached from ‘modernity’ • Removal for cause occurs through impeachment 9.2 Back to Learning Objectives
    15. 15. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial Selection • The Constitution specifies that federal judges must be appointed by the president and confirmed by a majority in the U.S. Senate – Senatorial courtesy • Nominations are first submitted to the Senate Judiciary Committee, which hold hearings • The Judiciary Committee members vote whether to recommend the nomination to the full Senate • The full Senate votes on the confirmation Outline the selection process for federal judges.9.3 Back to Learning Objectives Judicial Selection in the Federal System
    16. 16. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial Selection (cont’d) • States use four primary methods to choose judges – partisan elections – nonpartisan elections – merit selection – gubernatorial or legislative appointment 9.3 Back to Learning Objectives Judicial Selection in the States
    17. 17. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial Decision-Making • Judges make decisions by following established legal rules, however, they rely on their own values and judgments. – Facts are considered – Case precedent is used – Judges may reject precedent if an appellate court might consider their reasoning would provide justification to overturn precedent. This is particularly true in cases of new law! Explain the theories concerning how Supreme Court justices reach their decisions. 9.4 Back to Learning Objectives
    18. 18. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Strict Construction Versus Activism • Strict constructionists argue that the Constitution must be interpreted in strict accordance with the original meanings intended by the people who wrote and ratified the document. • Interpretations of the Bill of Rights lead to broad definitions of rights affecting criminal justice, issues of race and gender, and other policy disputes. • Flexible interpretation 9.4 Back to Learning Objectives
    19. 19. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Political Science and Judicial Decision-Making • Legal model • Attitudinal model • Strategic voting model • New institutionalism 9.4 Back to Learning Objectives
    20. 20. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Action in the Court Pathway • Courts are not easily accessible to the average American • Claims must be presented in the form of legal cases that embody disputes about rights and obligations under the law Characterize the litigation strategies used in the court pathway. 9.5 Back to Learning Objectives
    21. 21. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Interest Group Litigation • Expertise – Knowledge in the areas of law relevant to the case as well as experience in trial preparation or appellate advocacy • Litigation Resources – Various expenses in addition to the attorneys’ fees, unless the attorneys are working the case pro bono 9.5 Back to Learning Objectives
    22. 22. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Elements of Strategy • Selection of Cases – Test cases with compelling facts may provide the vehicle by which a law can be challenged • Jurisdiction – State or federal? A particular court with a specific judge • Framing arguments – Decide which legal issues to raise – File amicus curiae briefs • Public relations and the political environment – Gain sympathetic media coverage 9.5 Back to Learning Objectives
    23. 23. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Implementation and Impact of Court Decisions • Court decisions are not automatically implemented or obeyed • In some cases, federal judges were the only actors positioned to push the country into politically unpopular changes because they would not lose their jobs Evaluate the courts’ effectiveness in enforcing judicial decisions. 9.6 Back to Learning Objectives
    24. 24. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial Policymaking and Democracy • American judges possess the power to shape public policy but this power has risks. • The American conception of constitutional democracy relies on citizen participation and majority rule plus the protection of rights for individuals, including members of unpopular political, religious, racial, and other minority groups Describe the debate over whether it is appropriate for judges to shape public policy in a democracy. 9.7 Back to Learning Objectives
    25. 25. Copyright © 2011 Pearson Education, Inc. Publishing as Longman A dual court system means A. separate courts that handle civil and criminal matters. B. separate courts that handle felonies and misdemeanors. C. separate courts for state and federal jurisdictions. D. separate courts that deal with national and international matters. Back to Learning Objectives
    26. 26. Copyright © 2011 Pearson Education, Inc. Publishing as Longman A dual court system means A. separate courts that handle civil and criminal matters. B. separate courts that handle felonies and misdemeanors. C. separate courts for state and federal jurisdictions. D. separate courts that deal with national and international matters. Back to Learning Objectives
    27. 27. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Which of the following is NOT true about trial courts? A. Trial courts are courts of record. B. Trial courts have original jurisdiction. C. Trial courts can provide jury trials. D. Trial courts do not use bench trials Back to Learning Objectives
    28. 28. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Which of the following is NOT true about trial courts? A. Trial courts are courts of record. B. Trial courts have original jurisdiction. C. Trial courts can provide jury trials. D. Trial courts do not use bench trials Back to Learning Objectives
    29. 29. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial review was established by A. McCollough v. Maryland. B. Marbury v. Madison. C. US v. Nixon. D. Cherokee Nation v. Georgia. Back to Learning Objectives
    30. 30. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Judicial review was established by A. McCollough v. Maryland. B. Marbury v. Madison. C. US v. Nixon. D. Cherokee Nation v. Georgia. Back to Learning Objectives
    31. 31. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Which of the following is NOT true about the way judges obtain office? A. In some states, they run in partisan elections. B. In some states, they run in non-partisan elections. C. In some states, they are appointed by the governor for life. D. In some states, merit selection is used to choose judges. Back to Learning Objectives
    32. 32. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Which of the following is NOT true about the way judges obtain office? A. In some states, they run in partisan elections. B. In some states, they run in non-partisan elections. C. In some states, they are appointed by the governor for life. D. In some states, merit selection is used to choose judges. Back to Learning Objectives
    33. 33. Copyright © 2011 Pearson Education, Inc. Publishing as Longman What do you think? Do judges ‘legislate’ from the bench? YES. When they create ‘rights’ that do not exist in the Constitution, they are stepping outside their authority. NO. Judges recognize changes in society and interpret the Constitution to reflect those changes. Back to Learning Objectives
    34. 34. Copyright © 2011 Pearson Education, Inc. Publishing as Longman What do you think? Given the nature of what judges do, should they be elected by the public? YES. Judges should be elected by the public so that there is a means to hold them accountable for the decisions they make. NO. Members of the public do not have the means by which to measure ‘effectiveness’ of judges. The most competent judges are best selected through appointment. Back to Learning Objectives
    35. 35. Copyright © 2011 Pearson Education, Inc. Publishing as Longman Credits 282, AP Images/Evan Vucci; 284, Ben Curtis/ Pool/ Corbis; 287 Jim Young/Reuters/Landov; 288-289 The Collection of the Supreme Court of the United States (9); 290 The Granger Collection; 292, The Boston Athenaeum; 294, left to right: AP Images; George Tames/The New York Times/Redux Pictures; 299, left to right: AP Images/J. Pat Carter; AP Images/Madalyn Ruggiero; 300, Chip Somodevilla/Getty Images; 303, Andrea Bruce/Washington Post/Getty Images; 308 Doug Mills/The New York Times/Redux Pictures; 311, top to bottom: Kevin Dietsch/UPI/Landov; Michael Reynolds/DPA/Corbis; Jason Reed/Reuters/Landov Back to Learning Objectives

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