Lecture #24 American Government; The Judiciary

1. WEEK #15 LECTURE
#24
THE JUDICIARY
AMERICAN GOVERNMENT
PROFESSOR SHASTRI
FALL 2015

2. OUTLINE OF THE JUDICIARY
PART A) LAWS & THE AMERICAN LEGAL SYSTEM
PART B) THE CONSTITUTION: JURISDICTION, & JUDICIAL REVIEW
PART C) THE COURTS & THE JUDGES
PART D) THE SUPREME COURT

3. PART A) LAWS & THE
AMERICAN LEGAL SYSTEM

4. ROLE OF LAW IN DEMOCRATIC SOCIETIES
• PROVIDES SECURITY & PREDICTABILITY
• CONFLICT RESOLUTION
• REFLECT & ENFORCE CONFORMITY TO SOCIETY’S VALUES
• DISTRIBUTE BENEFITS/REWARDS SOCIETY HAS TO OFFER &
TO ALLOCATE THE COST OF THOSE THINGS

5. AMERICAN LEGAL TRADITION
• TRADITIONS: CIVIL-LAW & COMMON–LAW (PG. 362)
• U.S. ADVERSARIAL SYSTEM (PG. 362) VS. OTHERS
INQUISITORIAL SYSTEM (PG. 362)
• “LITIGATION-HAPPY AMERICA”
• PROS AND CONS

6. KINDS OF LAW
• SUBSTANTIVE LAWS (PG. 366)
• PROCEDURAL LAWS (PG. 366)
• CRIMINAL (PG. 366)
• CIVIL LAWS (PG. 366)
• CONSTITUTIONAL LAW (PG. 366)
• STATUTORY LAW (PG. 387)
• ADMINISTRATIVE LAW (PG. 367)
• EXECUTIVE ORDERS (PG. 367)

7. PART B) CONSTITUTION,
JUDICIAL REVIEW, &
JURISDICTION

8. FRAMERS & OUR CONSTITUTION
• FRAMERS POSTPONE SIZE & NATURE OF THE JUDICIARY
• COURT MUST HEAR CASES AFFECTING AMBASSADORS,
PUBLIC MINISTERS & CONSULS, AND STATES
• HAMILTON: COURT LEAST DANGEROUS, NO SWORD, NO
PURSE, INDEPENDENT CHECKS-AND-BALANCES
• COURT STARTED OFF AS WEAK & LACKED INFLUENCE

9. JUDICIAL REVIEW
• DEFINED: THE POWER OF THE COURTS TO DETERMINE THE
CONSTITUTIONALITY OF LAWS (PG. 368)
• FED PAPER #78: HAMILTON SAID THIS GAVE POWER TO CHECK
OTHER BRANCHES FOR PEOPLE, NOT CONGRESS PASSIONS
• MARBURY V. MADISON (PG. 369) MARSHALL LOSES BATTLE,
BUT WINS THE WAR
• SCOTUS INVALIDATED MORE THAN 1,200 STATE LAWS

10. JURISDICTION #1
• DEFINED: (PG. 370)
• MOST CASES ARE UNDER STATE COURTS’ JURISDICTION
• MAINLY CONSTITUTIONAL RULE & STATUTORY LAW
ADDITIONAL DETERMINANTS OF WHERE A CASE IS HEARD: 1)
INVOLVEMENT OF THE FEDERAL GOVERNMENT OR
CONSTITUTION, 2) THE PARTIES TO THE CASE; 3) WHERE THE
CASE AROSE; 4) HOW SERIOUS AN OFFENSE

11. JURISDICTION #2
• ONCE A CASE IS EITHER IN THE STATE COURT SYSTEM OR
FEDERAL COURT SYSTEM, RARE TO END UP IN OTHER
• ORIGINAL JURISDICTION (PG. 370)
• APPELLATE JURISDICTION (PG. 370)
• APPEAL (PG. 370)
• 90% OF LOSERS IN FEDERAL CASES DON’T APPEAL

12. PART C) THE COURTS &
THE JUDGES

13. STATE COURTS & JUDGES
• 3 LAYERS: TRIAL COURTS, INTERMEDIATE COURT OF
APPEALS, STATE SUPREME COURT
WAYS OF SELECTION
1) PARTISAN ELECTIONS
2) NON-PARTISAN ELECTIONS
3) “MISSOURI PLAN” MERIT-SELECTION PROCESS
4) GUBERNATORIAL JUDGES
5) STATE LEGISLATURE APPOINTS JUDGES

14. FEDERAL COURTS #1
3 TIERED COURT SYSTEM: DISTRICT, APPELLATE, US SUPREME
DISTRICT COURTS 1) 94 TOTAL; 2) EACH STATE 1, LARGEST
STATES 4; 3) ORIGINAL JURISDICTION; 4) CRIMINAL & CIVIL
TRIAL PROCESS
CRIMINAL CASES: GOV’T REPRESENTED BY U.S. ATTORNEY;
U.S. ATTORNEYS APPOINTED BY PREZ W/ SENATE CONSENT,
JURIES DETERMINE OUTCOMES

15. FEDERAL COURTS #2
• APPEALS BEYOND DISTRICT COURT GO TO COURT OF APPEALS
APPELLATE COURTS
1) 12 CIRCUITS, LARGE SUPER DISTRICTS THAT ENCOMPASSES
SEVERAL OF THE DISTRICT COURT TERRITORIES
2) REVIEW LEGAL REASONING OF THE DISTRICT COURTS
3) NO EVIDENCE PRESENTED, NO NEW WITNESSES, & NO JURY
IMPANELED
4) ROTATING PANEL OF THREE JUDGES

16. SELECTION OF FEDERAL JUDGES
APPOINTMENT BY PRESIDENT W/ CONFIRMATION MAJORITY
VOTE IN THE SENATE, LIFETIME
CRITERIA 1) POLITICAL FRIENDSHIP; 2) SUPPORTING &
CULTIVATING FUTURE SUPPORT (ESP. DEMOGRAPHIC GROUP); 3)
IDEOLOGY
HISTORY OF IDEOLOGY

17. PART D) THE SUPREME
COURT

18. SELECTION OF THE SUPREME COURT
• MERIT/COMPETENCE
• POLITICAL IDEOLOGY/POLICY PREFERENCES
1) STRICT CONSTRUCTIONISM (PG. 377); 2) LOOSE
CONSTRUCTIONISM
• REWARD/POLITICAL LOYALTY
• REPRESENTATION/DEMOGRAPHIC FACTORS
• CONFIRMATION/CURRENT POLITICAL LANDSCAPE

19. SELECTION OF CASES TO HEAR
1) WRITS OF CERTIORARI (PG. 381)
2) LAW CLERKS MAKE RECOMMENDATIONS
3) “DISCUSS LIST” IS REVIEWED IN CONFERENCE
4) RULE OF FOUR (PG. 381)
• SOLICITOR GENERAL (PG. 384)
• AMICUS CURIAE BRIEFS (PG. 385)

20. DECIDING CASES & THEIR IMPACT
• JUDICIAL ATTITUDES: ACTIVISM VS. RESTRAINT (PG. 386)
• EXTERNAL FACTORS
• PRECEDENT
• OPINIONS: 1) OPINION, 2) CONCURRING OPINIONS, 3)
DISSENTING OPINIONS; ALL PG. 387
• IMPACT: DISTRIBUTING SCARCE & VALUED RESOURCES
AMONG PEOPLE, & WHO GETS WHAT, WHEN, AND HOW