Structure of the Judicial Branch and Types of Courts We previously briefly discussed Article III which discusses the role of the Judicial Branch of government (Links to an external site.).  Remember that the Judicial Branch includes lots of courts, for example all of the federal courts are included in this branch, but the highest court in the country is the Supreme Court.   The primary role of this branch is to interpret the Constitution and laws and to determine the constitutionality of laws made by our government.  If a law is considered unconstitutional, then that law is struck down and cannot be enforced.  The Supreme Court has the final say on the constitutionality of laws, and all lower courts are supposed to adhere to the decisions by the Supreme Court.  I like to think of the Supreme Court as the "defenders of the Constitution," meaning that their ultimate job is to make sure the Constitution is being enforced and respected.  However, not everyone agrees with that the Constitution means, so defending it is not easy! ______________________________________________________________________________ There are different types of laws in the US, with the two biggest categories being federal laws and state laws.  Federal laws are made by the federal government and state laws are made by the different state governments.  Depending on the type of crime someone has committed, they may be either charged with breaking a federal law or a state law.  If someone is accused of breaking a federal law then their case is dealt with in a federal court; if someone is accused of breaking a state law then their case is dealt with in a state court.  As we learned previously, most people are actually imprisoned for breaking state laws than federal laws.  However, in this class we are primarily focusing on the federal government so we will only be examining the federal court system (as a shameless plug, I am teaching a face to face class in the fall called State and Local Government-POSCI 16-where we only look at California's government and judicial system and we look at political problems facing the state).   _____________________________________________________________________________ Within the federal judicial system, there are two types of courts: Trial Courts and Courts of Appeals  TRIAL COURTS (also called District Courts) This is the lowest level of court, meaning, this is where most cases begin.  Trial courts are what we typically think of when we think of courts: there is a judge, a jury, evidence is presented, and witnesses are called.  This is typically what we see on TV and in movies (usually with someone yelling "I OBJECT!!" at some point).   The goal of the trial courts is to come to a conclusion about a case; meaning, who is right or wrong or who is guilty or not guilty.  These courts are only dealing with potential violations of federal law.  There are a total of 94 district courts in the US, with the Bay Area being in a district called the Nor.

1. Structure of the Judicial Branch and Types of Courts
We previously briefly discussed Article III which discusses the
role of the Judicial Branch of government (Links to an external
site.). Remember that the Judicial Branch includes lots of
courts, for example all of the federal courts are included in this
branch, but the highest court in the country is the Supreme
Court.
The primary role of this branch is to interpret the Constitution
and laws and to determine the constitutionality of laws made by
our government. If a law is considered unconstitutional, then
that law is struck down and cannot be enforced. The Supreme
Court has the final say on the constitutionality of laws, and all
lower courts are supposed to adhere to the decisions by the
Supreme Court.
I like to think of the Supreme Court as the "defenders of the
Constitution," meaning that their ultimate job is to make sure
the Constitution is being enforced and respected. However, not
everyone agrees with that the Constitution means, so defending
it is not easy!
_____________________________________________________
_________________________
There are different types of laws in the US, with the two biggest
categories being federal laws and state laws. Federal laws are
made by the federal government and state laws are made by the
different state governments. Depending on the type of crime
someone has committed, they may be either charged with
breaking a federal law or a state law. If someone is accused of
breaking a federal law then their case is dealt with in a federal
court; if someone is accused of breaking a state law then their
case is dealt with in a state court.
As we learned previously, most people are actually imprisoned
for breaking state laws than federal laws. However, in this
class we are primarily focusing on the federal government so we
will only be examining the federal court system (as a shameless

2. plug, I am teaching a face to face class in the fall called State
and Local Government-POSCI 16-where we only look at
California's government and judicial system and we look at
political problems facing the state).
_____________________________________________________
________________________
Within the federal judicial system, there are two types of courts:
Trial Courts and Courts of Appeals
TRIAL COURTS (also called District Courts)
This is the lowest level of court, meaning, this is where most
cases begin. Trial courts are what we typically think of when
we think of courts: there is a judge, a jury, evidence is
presented, and witnesses are called. This is typically what we
see on TV and in movies (usually with someone yelling "I
OBJECT!!" at some point).
The goal of the trial courts is to come to a conclusion about a
case; meaning, who is right or wrong or who is guilty or not
guilty. These courts are only dealing with potential violations
of federal law. There are a total of 94 district courts in the US,
with the Bay Area being in a district called the Northern
District of California (Links to an external site.).
COURTS OF APPEALS (also called Circuit Courts)
If someone believes the district court has made a mistake in
their ruling, then they have the right to appeal the decision. An
appeal is when you ask a higher court to review the decision
made by a lower court because you believe that lower court
made a mistake. Appeals courts are different in terms of their
purpose; these courts are not giving a new trial or a retrial, they
are seeing whether the lower court, the previous court, made a
mistake in how they interpreted the law or how the applied the
law. The could also be looking to see if there were any
procedural mistakes.
Appeals/Circuit courts are also different in terms of how they
function; there is typically no jury, or evidence, or witnesses.

3. These courts are not the kind you normally see in movies.
Instead, it is typically just a group of judges (the number varies
but often there will be 3 judges) who will hear the arguments
made by opposing attorneys. One attorney will be making the
case that the previous court made a mistake in some way and the
other attorney will make the case that the previous court did not
make a mistake.
The judges will then make a decision and their decision is
whether the previous court made a mistake or not. If they
conclude that the previous court did not make a mistake, then
the decision stands. If they conclude that the previous court did
make a mistake, then the decision is overruled/thrown out.
There are a total of 13 circuit courts, and they hear cases
primarily based on where those cases originated
geographically. California is in the 9th Circuit Court of
Appeals. Below is a map of all the circuit courts.
The picture above is of a circuit court. As you can see, there is
no jury and there are several judges hearing a case.
Collectively, the judges will make a decision on a case, and
cases are usually decided on a majority-rule basis.
Judges for these circuit courts are also nominated by the
president when there is a vacancy/opening on that court.
If someone does not like the decision of a circuit court, then the
last option is to appeal to the Supreme Court. The Supreme
Court is a type of appeals court, and it is the highest court in
the country and has the last word on the constitutionality of
laws.
However, getting a case heard by the Supreme Court is
REALLY REALLY difficult...
How Does a Case Get Heard by the Supreme Court?
A very important fact about the Supreme Court is that they DO
NOT have to hear a case that is appealed to them. The Supreme

4. Court can pick and choose which cases they hear and they only
select a VERY few number of cases a year. If the Supreme
Court decides not to hear a case, then the ruling of the previous
court, the Circuit Court, stands.
Above is a representation of the process by which cases can
reach the Supreme Court. We will only be addressing the right-
hand side of the chart (you will see that there are some cases
that involve "original jurisdiction" which can move immediately
to the Supreme Court, but those cases are VERY rare).
Generally, cases have to make their way up the ladder to reach
the Supreme Court. Usually, the Court cannot simply say that
law X is unconstitutional; they need a case which challenges
law X to make its way through the system in order to declare
the law unconstitutional.
Please watch the following video which has good information
regarding how a case reaches the Court. While watching, be
able to answer the following questions:
1. What is a writ of certiorari?
2. What is meant by the Rule of Four?
3. What are the three main reasons why the Court might hear a
case?
4.
https://www.youtube.com/watch?v=KEjgAXxrkXY&feature=em
b_title
5. To make this a little clearer, let's use a hypothetical
scenario:
6. Let's say you are an attorney and your client has been
charged with violating federal marijuana laws (remember
marijuana is still illegal according to the federal government).
Let's say he/she was arrested on the charge of illegal marijuana
possession, and for this scenario we will assume that your client
is actually guilty and is in possession of a lot of marijuana.
Instead of defending him/her on the basis that they are innocent,
you are going to instead defend them on the basis that the law is

5. unjust and unconstitutional (and you can absolutely start a court
case by questioning the validity or constitutionality of a law).
Basically, your argument is not that your client is innocent, but
rather that the law they violated should not be a law.
7. Your court case would start at a district court and a trial
would commence. Let's say your client is found guilty. Your
next step as the attorney is to appeal the decision to the 9th
Circuit Court of Appeals. Your argument at the court of
appeals is that the law is wrong and the district court made a
mistake by upholding that law. Let's also say that the 9th
Circuit, which is known to be a fairly liberal court and one
that President Trump HATES (Links to an external site.), agrees
with you that the law is unconstitutional. Their decision
overrules the district court's decision. BUT, let's say that the
prosecutors (the federal lawyers) disagree with the 9th Circuit
and believe that the law IS constitutional and that the 9th
Circuit is overstepping by declaring it unconstitutional. The
federal prosecutors can appeal the decision made by the 9th
Circuit to the Supreme Court in hopes that the Court decides to
hear the case.
8. If they don't agree to hear the case, then the decision by the
9th Circuit stands. If they do agree to hear the case, then we
have ourselves a Supreme Court case!! How Does the Supreme
Court Function?
As mentioned before, the Supreme Court
is EXTREMELY selective. But let's say that in our scenario
from the previous page, 4 Supreme Court justices have agreed
to hear our case (passing the Rule of 4). Now what?
The following are done in leading up to the Court making their
decision:
· Writs of Certiorari are issued: the Supreme Court is going to
want to learn everything about the case and why the previous
courts made their rulings. The writs will enable justices to
decide whether to hear a case and will help them in deciding a
case as well
· Amicus curiae briefs are written: these are legal arguments for

6. why the Supreme Court should vote one way or the other. For
example, in our scenario, groups that pro-marijuana
organizations, or people who just generally want to see
marijuana de-criminalized, would write briefs in which they
make their arguments for why federal marijuana laws are
wrong. Groups that are anti-marijuana organizations, or just
want to see marijuana remain criminalized, would write briefs
saying why they believe the existing laws are constitutional.
These briefs are written and sent to the Court, where they may
or may not make a difference in how the Court rules. See these
articles (Links to an external site.) for more information (Links
to an external site.) on these kinds of briefs.
· Oral arguments: this is where the lawyers present their cases
(one side saying why the law should be overturned and one side
saying why the law should not be overturned in our scenario).
Keep in mind, the Supreme Court is an appeals court which
means there is no jury, no witnesses, and no evidence. It is
simply the lawyers presenting their cases and then the 9
justices/judges ask questions of the lawyers. Interestingly,
because of Supreme Court rules, there are no video cameras
allowed in the Court so there cannot be any video recordings
made of the cases. However, audio recordings are allowed.
Here is a video, you do not have to watch the whole thing, in
which someone took the audio portion of a case and then had
dogs "represent" the justices.
· Puppy Justice (Links to an external site.)
· Deliberations and Opinions: after hearing oral arguments, the
justices will then take time to deliberate and make their
decision. This stage can often take months. The justices will
review the oral arguments, review relevant cases, and consider
their interpretation of the law and the constitution. Eventually,
they will come to a conclusion. The make decision on the basis
of majority-rule, meaning, 5 or more justices are needed to
make up the majority (there are 9 justices total). Typically, a
majority opinion is written, in which the side with the most
votes explains why they voted a certain way. There is also

7. typically a minority opinion, in which the justices who did not
agree with the majority explain why they voted differently.
Since the Supreme Court is the highest court, there is no
appealing a Supreme Court decision. The president CANNOT
overrule the Supreme Court nor can Congress. Their decision
also impacts all cases in the lower courts as well; meaning,
lower courts should uphold the decisions made the Supreme
Court.
Is there any way to change a Supreme Court decision, or is there
any way to get them to change their mind??
Yes.
There are two main ways to try to get around a Supreme Court
decision that might not be popular:
1. Get Congress and the states to amend the Constitution. Since
the Supreme Court has to uphold the Constitution, if you are not
happy with their interpretation of the Constitution, you can try
to get Congress and the state governments to amend the
Constitution to change what it says. We already learned that
this is INCREDIBLY DIFFICULT to do. But it is an option.
2. Get a future Supreme Court to overrule the decision made by
a past Court. This is an important point: the Supreme Court
CAN overrule themselves; meaning, they can change their
mind. The Supreme Court in 2019 can overrule a decision made
by the Supreme Court in 1990 (or any other year). We already
learned that the Supreme Court at one point ruled segregation to
be constitutional, and then several decades later overruled that
decision and said segregation is not constitutional. So, if you
wait until there are new justices on the Court, and hopefully
justices with different interpretations of the Constitution, then a
case dealing with a similar issue to a previous case can make its
way up the ladder to the Supreme Court and perhaps this new
Court will rule differently. This has actually been done several
times, and is the most common way to get a different ruling by
the Supreme Court. Unfortunately, this takes time and patience
as you would have to wait for existing members of the Court to
leave and be replaced by justices that have different

8. interpretations.
Ultimately, the Supreme Court has a lot of power and can have
a huge influence over the country's laws. Some have argued
that the Supreme Court might have too much power and some
have argued that it is "undemocratic" in terms of how it
functions. We will examine this debate more on the next
page. The Justices of the Supreme Court
The Supreme Court has 9 justices (the photo above are the
current justices of the Supreme Court). Interestingly, the
Constitution does not specify how many justices there should be
(at one point in time there were only 6) and the Constitution
does not have specific requirements for serving on the Court.
Meaning, in theory, someone who has not gone to law school
could serve as a Supreme Court justice. Here are some other
interesting historical facts about the Court. (Links to an
external site.)
So who are these 9 people? Here are the justices:
· Chief Justice John Roberts: born in 1955, nominated by
President George W. Bush, confirmed in 2005
· Clarence Thomas: born in 1948, nominated by President
George H. W. Bush, confirmed in 1991
· Ruth Bader Ginsburg: born in 1933, nominated by President
Bill Clinton, confirmed in 1993. She was the second woman to
be confirmed to the Court
· Stephen Breyer: born in 1938, nominated by President Bill
Clinton, confirmed in 1994
· Samuel Alito: born in 1950, nominated by President George
W. Bush, confirmed in 2006
· Sonia Sotomayor: born in 1954, nominated by President
Barack Obama, confirmed in 2009. She is the first Latina(o) to
serve on the Court
· Elena Kagan: born in 1960, nominated by President Barack
Obama, confirmed in 2010
· Neil Gorsuch: born in 1967, nominated by President Donald
Trump, confirmed in 2017
· Brett Kavanaugh: born in 1965, nominated by President

9. Donald Trump, confirmed in 2018
Here is more on the biographies of each of these justices (Links
to an external site.).
A few things to note about the Court:
· Members of the Supreme Court are nominated by the President
and have to be confirmed by the Senate. We, the people, do not
vote for these individuals nor can we vote them out of office.
· Supreme Court justices have life-time terms; meaning, they
have their job for as long as they want (until they retire or die).
This is why we sometimes see justices serve for several
decades. They will often serve long after the president who
nominated them leaves office.
· Justices can be impeached and removed from the Court using
the same process for removing a president from office. No
justices have ever been removed from the Court, although one
was impeached in 1804.
· There is no age-limit to serving on the Court
· Typically, these individuals are highly respected and regarded
judges. They have often been judges in circuit courts or would
be considered legal scholars.
· The "Chief Justice" is not necessarily the longest-serving
member. This is a bit of an honorary title, and he does not have
more voting power than the other justices. His role is primarily
to preside over the hearings and keep the hearings orderly. He
also is the person that swears in the president at the
inaugurations.
Please watch the video below for more information about who is
on the Court and some of the debates regarding the justices.
https://www.youtube.com/watch?v=rwfc84ozhwQ&feature=emb
_title
How Do They Make Their Decisions?
The justices of the Supreme Court make decisions on the cases
they hear based on their interpretations of the Constitution.
Their overall job is to uphold and enforce the Constitution.
However, doing that is not easy because the Constitution is not
always clear and there are lots of areas of ambiguity.

10. There are two main models to try to understand how justices
might view their role and how they might make their decisions:
judicial activism and judicial restraint.
JUDICIAL ACTIVISM
This model refers to the idea that judges would consider the
societal implications of their decisions. Meaning, while they
still are thinking about the Constitution, they also think
about what is good for the society and what is "right." They are
not going to be completely limited by what they believe the
Constitution says, and they are likely to consider what is in
the best interest of the society. Judicial activist judges might be
more willing to use their judicial power to advance certain
causes or correct problems in the society.
The advantages of this model is that judicial activist judges are
more likely to favor change and are interested in trying to make
society "better." These judges also care about how their
decisions will be viewed in society and might be more
responsive to changes in society. However, the disadvantages
are that what these judges think is "good" for society is
probably not what everyone thinks is "good." This model also
allows judges a lot of power and flexibility in making their
decisions, which may or may not be a good thing. Lastly, some
might argue that it is the job of judges to uphold the
Constitution, not to make policy or fix societal problems.
_____________________________________________________
___________________________
JUDICIAL RESTRAINT
This is the opposite of judicial activism. Judicial restraint
judges are those that stick very closely to the original meaning
of the Constitution. These judges set aside their own personal
views and do not particularly care about how their decisions are
viewed by society. They do not care about trying to solve
societal problems, but rather strictly enforce and uphold the
Constitution. These judges also try to envision what
they believe the Founding Fathers and the Framers of the
Constitution would have wanted.

11. The advantages of this model is that these judges are less likely
to be politically motivated. These judges will be
more restrained in using their power and might take a more
limited view of their role. However, the disadvantages of this
model is that change is less likely to happen with these judges
and societal problems are less likely to be solved. Additionally,
many would argue that it is not good to uphold the original
intent of the framers of the Constitution because that was a long
time ago, our country has changed dramatically since then, and
the people who wrote the Constitution were primarily white,
elite, men. Therefore, some would argue, we should be looking
more at how the meaning of the Constitution has changed rather
than just upholding what was written in the 1700s.
So, would you prefer your judges to be activist or restraint-
oriented judges?