THE JUDICIARY

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THE JUDICIARY
By Loren Miller
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U.S. SUPREME COURT, 1790
New York City
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U.S. SUPREME COURT TODAY
Washington, D.C.
http//www.oyez.org
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ARTICLE III
The judicial power of the United States, shall be
vested in one supreme Court, and in such inferior
Courts as the Congress may from time to time
ordain and establish.
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THE WEAKEST BRANCH?
The federal judicial system was expected to be
the weakest branch of the government and early
presidents had a difficult time finding people
who would serve on the Supreme Court.
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THE WEAKEST BRANCH?
The judicial branch became more of a co-equal
branch when John Marshall became Chief Justice.
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JUDICIAL REVIEW
The principle that the courts have the power to
strike down legislative and executive acts that
are unconstitutional. Hylton v. U.S.
(1786) Marbury v. Madison (1803)
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Number of Federal Laws Declared Unconstitutional
1798-1859 2 1860-1909 29 1910-1929
21 1930-1939 13 1940-1959
7 1960-1979 36 1980-1999 40 2000-2011
18 TOTAL 166
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Number of State Laws Declared Unconstitutional
1790-1859 36 1860-1909
182 1910-1929 258 1930-1939
92 1940-1959 127 1960-1979
346 1980-1999
226 2000-2011 40 TOTAL 1,307
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TYPES OF LAW

• Constitutional Law
• Statutory Law
• Civil Law
• Criminal Law
• Administrative Law
• Common Law
• Natural Law

• Litigation abounds
• A D.C. judge sued his drycleaner for 54 million
  for losing his pants
• Schools that now ban running at recess
• The teacher sued for repositioning a students
  hands on a flute

A Hazard of Texting
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COMMON LAW
Strictly speaking, common law must be 1)
Unwritten and
2) Traced back to England Today, common
law means that legal decisions build from
precedent established in previous cases and apply
commonly throughout the jurisdiction of the court.
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Administrative Agencies
Federal Trade Commission regulation of
advertising and telemarketing. Federal
Communications Commission regulates the
broadcast, cable, satellite, and telephone
industries. Federal Election Commission
regulates political campaign contributions and
expenditures. Food and Drug Administration
regulates prescription drug and medical product
advertising.
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Administrative Rules of pages in Federal
Register(in thousands)
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CASELOADS IN FEDERAL COURTS
In Thousands
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CASELOADS IN TEXAS COURTS
In Thousands
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HOW TO INTERPRET THE LAW

• Doctrine of Original Intent
• Literalism or Absolutism
• Stare Decisis
• Balancing Approach
• Can judges interpret the law value free??
• Judicial Activism go beyond the words of the
  law to consider the societal implications of the
  decision (one who overturns a law)
• Judicial Restraint should not go beyond the
  clear words of the law.

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WHO ARE THE ACTIVIST JUDGES?
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HOW TO INTERPRET THE LAW
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The law, in its majestic impartiality, forbids
the rich as well as the poor to sleep under
bridges, to beg in the streets, and to steal
bread.
Jacques Thibault, French Nobel Prize Winning
Writer, 1894
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INTERPRET THESE TEXAS LAWS

• At one time it was illegal to own a copy of the
  Encyclopedia Brittanica in the statebecause that
  publication contained a formula for making
  liquor.
• The town of Princeton outlawed onion throwing.

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INTERPRET THESE TEXAS LAWS

• There was a state law that prescribed that when
  two trains met at a railroad crossing, each had
  to come to a full stop, and neither could proceed
  until the other had gone.
• El Paso made it a crime to throw a faded bouquet
  into a trash can.

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JUDICIAL SYSTEM, 1790
Created by the Constitution
Supreme Court
3 Circuit Courts Of Appeal
Created by the Judiciary Act of 1789
13 District Courts
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FEDERAL COURT SYSTEM
U.S. Supreme Court (9,500 appeals)
Original Jurisdiction
Legislative Courts
13 U.S. Courts Of Appeals (179 Judges)
(55,000 cases)
Federal Regulatory and Administrative Agencies
94 U.S. District Courts (679 Judges) (379,000
cases)
2012
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ARTICLE I COURTSSPECIALIZED COURTS

• Article I, Section 8 -- the necessary and proper
  clause Is used by Congress to create legislative
  courts
• Tax Court (19 judges 15 year terms)
• Court of Appeals for Veterans Claims (7 judges
  15 year terms)
• Court of Military Appeals (5 judges 15 year
  terms)
• U.S. Claims Court (16 judges 15 year terms)

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ARTICLE I COURTSSPECIALIZED COURTS

• Recent Courts
• Foreign Intelligence Surveillance Court
• A secret court formed to hear government requests
  for warrants to conduct surveillance on suspected
  spies. Judges are borrowed from the district
  court.
• If the judge denies the governments request,
  then the government may appeal to the Foreign
  Intelligence Surveillance Court of Review.
  Judges are borrowed from the courts of appeals.

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APPELLATE COURTS
Patents and International Trade
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FEDERAL STATE COURTS
State Courts of Last Resort (70,000 cases)
To U.S. Supreme Court
State Intermediate Courts of Appeal (168,000
cases)
State Trial Courts (101 million filings)
2010
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The Number of Supreme Court Opinions
Acetate CT2
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FEDERAL JURISDICTION

• SUBJECT MATTER (What is involved)

• PARTIES (Who is involved)

STATE V. STATE x
U.S. CONSTITUTION
REP. OF FOREIGN COUNTRY x
FEDERAL LAWS Civil Criminal
U.S. GOVERNMENT
TREATIES
DIVERSITY OF CITIZENSHIP
ADMIRALTY LAW
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JUSTICIABILITY

• Ripeness is it too early for the Court to
  decide the case?
• Mootness is it too late for the Court to
  decide?
• Venue is this Court the right one
  (jurisdiction)
• Political Question is the subject matter
  appropriate for the Court to decide at all
• Standing does the participant have a stake in
  the matter

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OPINIONS IN THE SUPREME COURT, 2007-08
TYPE OF CASE NUMBER OF CASES

• Original jurisdiction
  1
• Civil actions from lower federal courts
  42
• Federal criminal and habeas corpus cases 20
• Civil actions from state courts
  7
• State criminal cases
  8
• TOTAL 78

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JUDICIARY ACT OF 1925

• Prior to 1925, the Supreme Court was required to
  hear all cases properly brought before them
• Since 1925, the Supreme Court only hears cases
  of national importance

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THE ACCEPTANCE PROCESS

• Original Jurisdiction
• very few cases begin at the Supreme Court
• Appellate Jurisdiction
• party must apply for a writ of certiorari (a
  cert)

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WHY ACCEPT??
Rehnquist Court
Warren Court
Burger Court
Reversed By Supreme Court
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WHY ACCEPT??
When the federal government (solicitor general)
is the party asking for review. When there is a
conflict between circuits. When the circuit
court decision was not unanimous. When the case
involves civil rights and civil liberties. When
the justices are interested in the subject
matter. When numerous interest groups show
significant social or political interest.
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ACCEPTANCE PROCESS
Law Clerks screen appeals submit recommendations
to justices
Approximately 9,500 cases are appealed to the
Court
Recommendations are considered in Conference
Discuss List
Rule of Four
Review denied for more than 99 of cases
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SUPREME COURT CASE LOADS, 1930-2010
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DECISION-MAKING PROCESS
Class Action
Courts docket (80-125 cases)
Briefs submitted by both sides amicus curiae
briefs filed
Oral Argument
Judicial Conference
Decision Announced
Opinion drafted and circulated
Public Opinion
Influence of Executive Branch
Lower Court Rulings and Precedents
Internal Politics of Court
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JUDICIAL CONFERENCE
In the conference a preliminary vote is taken
with the Chief Justice voting last.
If the Chief Justice is in the majority, then
s/he will assign someone (maybe himself) to write
the Opinion of the Court. If the Chief Justice
is not in the majority, then the Justice with the
most seniority who is in the majority will write
the opinion. This opinion is circulated to all
the Justices.
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JUDICIAL CONFERENCE
Any Justice in the minority may write a
Dissenting Opinion, which is also circulated to
all of the Justices.
If a Justice in the majority agrees with the
Opinion of the Court but for reasons other than
those stated in the Opinion of the Court, s/he
may write a Concurring Opinion, which is also
circulated to all of the Justices.
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HOW LONG DOES IT TAKE?
Cases
Days from Oral Argument to Decision, 1986-1998
Mean 94
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JUDICIAL RECRUITMENT

• Judicial recruitment in the United States is
  unlike the selection process of most western
  democracies.
• Western democracies treat being a judge as a
  distinct profession requiring specialized
  training.
• Judicial selection in the United States is a
  political process with few formal requirements.

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A GROWING FEDERAL JUDICIARY
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32
37
45
39
50
22
13
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OF JUDGESHIPS FILLED BY PRESIDENT
37
50
44
22
45
39
35
23
13
2010
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CONFIRMATION DELAY(in Days)
23
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Background of Supreme Court Justices to 2013

• Religious Affiliation
• Protestant 83
• Roman Catholic 14
• Jewish 7
• Unitarian 7
• No Affiliation 1
• Age on Appointment
• Under 40 5
• 41-50 33
• 51-60 60
• 61-70 14

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Background of Supreme Court Justices to 2013

• Religious Affiliation
• Roberts Roman Catholic
• Scalia Roman Catholic
• Kennedy Roman Catholic
• Kagan Jewish
• Sotomayor Roman Catholic
• Thomas Roman Catholic
• Ginsburg Jewish
• Breyer Jewish
• Alito Roman Catholic

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Background of Supreme Court Justices to 2013

• Educational Background
• College Graduate 96 Not a College
  Graduate 16
• Gender
• Male 108
• Female 4
• Race
• Caucasian 109
• African American 2
• Hispanic 1

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Background of Supreme Court Justices to 2013

• Law School of Current Justices
• Roberts Harvard
• Alito Yale
• Kagan Harvard
• Scalia Harvard
• Kennedy Harvard
• Sotomayor Yale
• Thomas Yale
• Ginsberg Columbia
• Breyer Harvard

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Background of Supreme Court Justices to 2013

• Party Affiliation
• Federalist (to 1835) 13
• Democratic Republican (to 1828) 7
• Whig (to 1861) 1
• Democrat 46
• Republican 44
• Independent 1

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Background of Supreme Court Justices to 2013

• Party Affiliation
• Roberts G.W. Bush R
• Kagan Obama D
• Scalia Reagan R
• Kennedy Reagan R
• Thomas G. Bush R
• Ginsburg Clinton D
• Breyer Clinton D
• Alito G.W. Bush R
• Sotomayor Obama D

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WHATS IT TAKE TO BE A FEDERAL JUDGE?

• District Judge
• role of senatorial courtesy
• Judge, Circuit Court of Appeals

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Party Affiliation of District Judges
President Party Same Party Johnson
Democrat 94 Nixon Republican
93 Ford Republican
79 Carter Democrat
91 Reagan Republican
92 Bush Republican
89 Clinton Democrat
88 Bush Republican 83
Through 12/09
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WHATS IT TAKE TO BE A SUPREME COURT JUSTICE?

• Overriding Considerations
• political party
• political ideology
• Other Variables
• age
• geography
• gender
• race
• religion

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FEDERAL COURT APPOINTMENTS ()
2012
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FEDERAL COURT NOMINEES BY RACE
2013
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FEDERAL COURT NOMINEES BY GENDER
2013
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THE SUPREME COURT OVER TIME
Conservative Votes
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SUPREME COURT TRIVIA

• Longest Serving William O. Douglas, 36 years
• 1st Catholic Roger Taney, 1836-1864
• 1st Jew Louis Brandeis, 1916-1939
• 1st Black Thurgood Marshall, 1967-1991
• 1st Woman Sandra Day OConnor, 1981-2006
• 1st Hispanic Sonia Sotomayor, 2009-