THE JUDICIAL BRANCH: STRUCTURE AND PROCESS

1
THE JUDICIAL BRANCHSTRUCTURE AND PROCESS

• Topic 12

2
Judicial Review as a Byproduct

• Because it is exercised by ordinary courts
  (rather than by a special constitutional
  court), judicial review in the U.S. does not
  operate in the following fashion
• Congress passes a law,
• the President signs the law,
• the Supreme Court reviews the law in the manner
  of a constitutional court, and then (if it is
  judged to be constitutional)
• the law goes into effect.
• Rather, as was illustrated by the case of Marbury
  v. Madison, it operates in the following fashion
• Congress passes a law (e.g., the Judiciary Act),
• the President signs the law, and
• the law goes into effect.
• The law may subsequently produce a legal case
  (Party A v. Party B) and, in deciding the case
  (e.g., whether someone can be convicted for
  violating the law), courts may have to decide
  whether the law is constitutional.
• So U.S. courts exercise judicial review as a
  byproduct of deciding concrete cases that come
  before them.
• However, it is also true that concrete cases may
  be contrived deliberately to test the
  constitutionality of laws.

3
The Federal Compromise Produces a Dual Court
System
4
The Federal Court System

• Not only the size but also the structure of the
  U.S. court system (particularly at its
  intermediate level) has changed since the
  original Judiciary Act of 1789,
• as a result of many amendments to the Judiciary
  Act.
• The size of the Supreme Court has been fixed at
  nine since 1869.
• The old Circuit Courts have been replaced by U.S.
  Courts of Appeal
• However, the geographical jurisdictions of these
  intermediate Courts of Appeal are still referred
  to as circuits.
• In each circuit, appeals Court judges normally
  sit in panels of three.
• Larger states now contain several U.S. District
  Courts, and
• each District Court has several judges.
• A U.S. Attorney is assigned to each Federal
  District Court.

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(No Transcript)
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The Federal Court System (cont.)

• The allocation of original vs. appellate
  jurisdiction in todays federal courts
• District courts 100 original
• Courts of Appeal 100 appellate
• Supreme Court 99.9 appellate, 0.1 original
• State court cases that raise federal questions
  they may be appealed to the U.S. Supreme Court.
• As previously noted, state court systems
  typically follow the same three-tiered structure
  as the federal system.

7
The Dual Court System (Resulting from the Federal
Compromise)
8
Types and Names of Cases

• Original criminal cases (prosecution vs.
  defendant)
• United States v. John Doe
• The People State, Commonwealth, etc. v. John
  Doe
• Original civil cases (plaintiff vs. defendant)
• Marbury v. Madison
• Maryland v. McCulloch
• Plaintiffs and defendants may be either
  governments or private parties
• Cases appealed to higher court (appellant vs.
  other party)
• loser v. winner at lower level
• John Doe v. United States (or state)
• McCulloch v. Maryland (Topic 17)

9
Appealing Cases to Higher Courts

• While the SC is primarily an appeals court, it
  can review only a tiny fraction of the cases that
  it might review.
• Most cases are resolved at the trial (district)
  court level.
• Most criminal cases are resolved by plea bargain,
  so there is no trial and no appeal.
• Most criminal defendants who go to trial are
  convicted, but often the case is pretty
  open-and-shut, so there is little basis for
  appeal.
• If there is a trial and the defendant is found to
  be not guilty, the prosecution cannot appeal.
• Many civil cases are settled out-of-court before
  trial.
• But if a civil case goes to trial, the loosing
  party can usually appeal and often does so.
• Appeals from Federal District Courts to the Court
  of Appeals are fairly automatic if requested.
• But appeals from the (federal) Courts of Appeal
  or from state Supreme Courts to the SC are rarely
  automatic.

10
Two Routes to Review by the SC

• Prior to 1925, many cases could be appealed to
  the SC, whose caseload therefore became
  overwhelming.
• As a result of an amendment to the Judiciary Act
  in 1925, only a few types of cases now qualify
  for a (more or less) automatic review by the SC.
• e.g., when a lower court has declared a federal
  law to be unconstitutional.
• Such cases constitute only about 10 of the SC
  case load (10 cases a year).
• In other cases, the losing party may petition the
  SC for a writ of certiorari, by explaining why
  the SC should review the case
• If the petition is granted, the SC issues the
  writ to the lower court, ordering it to send up
  the case material for review.
• About 7,500 such petitions are filed with the SC
  each year, but the SC grants petitions in only
  about 100 or fewer cases a year.
• Nevertheless, such cases make up about 90 of the
  SCs case load.

11
The Writ of Certiorari (cont.)

• The SC can use the petition for writ certiorari
  procedure to screen cases for its consideration
  and thereby it can largely control its own
  agenda, i.e.,
• the SC can pick and choose the cases it will take
  for review.
• The SC uses the rule of four (4/9 rule) in
  deciding whether grant cert.
• The SC court is especially likely to grant cert
• if the case raises important and/or unresolved
  legal issues, or
• if the lower court(s) have ruled in a way that
  appears to be contrary to precedent and prior SC
  decisions, or
• if lower courts are following a SC precedent that
  members of the SC now want to reconsider and
  perhaps overrule.
• Justices who vote to grant cert
• are rather likely to support the appellant and
  reverse the lower court decision if SC takes the
  case, but
• there is no guarantee they will so decide.

12
Supreme Court Decision Making

• Both parties submit written briefs, stating the
  legal arguments that support their positions.
• Amicus curiae (friend of the court) briefs may
  also be submitted (by the U.S., advocacy groups,
  etc.).
• Oral argument is scheduled.
• Time is very limited, usually no more than one
  hour for each side.
• And justices commonly interrupt the lawyers with
  questions.
• If the United States is a party in the case, it
  is usually represented by the Solicitor-General.
• Oral argument is open to the public and the
  press.
• But it is not open to radio or television (not
  even C-SPAN).
• Complete transcripts of oral argument are made
  available and recently tape recordings have also
  been released.

13
SC Decision Making The Conference

• Following oral argument, SC members discuss a
  case and then vote in the SC Conference.
• Only the justices themselves attend the
  Conference (no clerks, etc.)
• Conference proceedings are kept totally secret.
• The conference process remained a mystery until
  about 40 years ago.
• Justice William Brennan, How the SC Arrives at
  Decisions, NY Times Magazine
• In its appellate role, SC must either affirm or
  reverse the lower court decision.
• The Chief Justice first presents his views and
  tentative conclusions, followed by the Associate
  Justices in order of seniority.

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SC Decision Making The Conference (cont.)

• Justices then vote in reverse seniority, with the
  Chief Justice casting the final vote.
• SC decisions are governed by simple majority rule
  (5/9).
• In the event of a tie (resulting from a vacancy,
  illness, or recusal), the lower court decision is
  affirmed.
• With a few exceptions (per curium decisions), a
  SC decision is accompanied by a SC opinion
  justifying the decision is written and signed by
  one or more of the justices (e.g., Marbury v.
  Madison).
• If the Chief votes with the majority, the Chief
  writes the opinion or assigns the task to some
  other justice in the majority.
• If the Chief votes with the minority, the most
  senior Associate Justice in the majority writes
  the opinion or assigns the task to some other
  justice in the majority.
• The Chief, who votes last in an open roll call,
  may have a strategic incentive to vote with the
  majority (if the vote is other than 4-4), so as
  to control the writing of the opinion.

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SC Decision Making The Conference (cont.)

• The draft opinion is circulated among the
  justices for comments, criticisms, and
  suggestions (especially from the justices in the
  majority).
• As a result, the draft is usually revised and
  sometimes completely rewritten.
• Occasionally Justices may switch their votes,
  possibly reversing the previous tentative
  decision and requiring a new written opinion.
• When the SCs opinion is largely complete,
  justices in the majority and minority may decide
  to write concurring or dissenting opinions,
  respectively.
• Such opinions do not have the force of law and
  often are written in a less legalistic style than
  the opinion of the Court.
• The SC then announces its decision and releases
  its opinions (usually for a number of cases
  simultaneously).