The Judiciary I
John N. Lee
Florida State University
Summer 2010
John N. Lee (Florida State University)
The Judiciary I
Summer 2010
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Basics
Nine Justices.
Each appointed by the President and confirmed by the Senate.
Each Justice is appointed for life.
Chief Justice is the head of the Supreme Court.
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The Federal Judicial System
Constitution only mentions the Supreme Court, however framers knew
more courts would be necessary. Decision is left to the Congress.
Congress creates constitutional courts, amongst others.
Constitutional Courts − “vest with the general judical authority
outlined in Article III (KGK, 427).” These are agents of the Supreme
Court with the same powers.
Today there are 300+ federal courts.
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The Federal Judicial System
The Federal Judicial System is a three-layer pyramid.
1
At the base are District Courts.
94 Courts with 642 active judges.
All states have at least one (large states have as many as four).
District Courts are where most cases start.
2
In the middle are Courts of Appeals.
Where District Court decisions are appealed.
12 regions with 167 Active judges.
13th region is the “U.S. Court of Appeals for the Federal Circuit” which
has universal jurisdiction.
3
At the top is the Supreme Court
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Potential Cases
Supreme Court receives thousands of requests each year but chooses
only 100 or so cases to actually produce a written decision for.
“During the 2002-2003 term more than 8,255 cases arrived at the
Supreme Court’s doorstep, but the justices decided, with a written
opinion, only 84 (Epstein et al, 13).”
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Four Ways Cases get to the Supreme Court
1.) Request for judicial review using the Supreme Court’s original
jurisdiction.
2.) Appeals − “...a lower federal or state court has already rendered a
decision and one of the parties is asking the Supreme Court to review that
decision (Epstein et al, 15).”
Challenges to existing laws.
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Four Ways Cases get to the Supreme Court
3.) Certification − “...requests by lower courts for answers to legal
questions (Epstein et al, 14).”
4.) Petitions for Writ of Certiorari − “the litigants desiring Supreme Court
review ask the Court, literally to become ‘informed’ about their cases by
requesting the lower court to send up the record (Epstein et al, 15-16).”
Most common way cases get to the Supreme Court.
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Dockets
Once cases are sent to the Supreme Court they are put on one of two
dockets.
1
Original Docket − These cases come under the courts original
jurisdiction.
2
Appellate Docket − All non-original jurisdiction cases.
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Selecting Cases
Chief Justice makes discuss lists.
Discuss List − 20-30% of cases on the docket. These are the cases
the Justices meet and decide to accept or not accept.
Other justices may add but not subtract cases from this list.
Justices meet for a Conference and discuss the cases on the discuss
list.
Rule of Four − “Four or more justices must agree to review most
cases (Epstein et al, 14).”
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Influences on Case Selection
Two considerations influence whether or not the Supreme Court accepts a
case
1.) Legal Considerations (found in Rule 10):
1
Lower courts have disagreed about how a case should be ruled on.
2
State courts of last resort have decided federal issue in different ways.
3
Lower courts have decided issues that should be decided by the
Supreme Court, or that are inconsistent with prior Supreme Court
decisions.
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Influences on Case Selection
2.) Political Considerations:
1 Supreme Court is extremely likely to accept cases when the solicitor
general files a petition.
Solicitor General − “...attorney who represents the U.S. government
before the Supreme Court (Epstein et al, 20).”
70-80% of such cases are accepted.
2
As more amicus curiae briefs are filed the probability the case is
accepted increases.
Amicus Curiae Brief − “A brief filed in a lawsuit by an individual or
group that is not party to the lawsuit but that has an interest in the
outcome (KGK, 782).”
3
The ideology of the justices. Conservative courts are more likely to
accept conservative cases, liberal courts are more likely to accept
liberal cases.
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Presenting Arguments to the Court
Two Methods of Presentation
1.) Written Arguments
Not to exceed 50 pages in length.
Justices can use written briefs to develop questions to ask petitioning
lawyers.
2.) Oral Arguments
Each side has 30 minutes to present its argument.
Not really known if they are important or not.
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Deciding Cases
Supreme Court meets in private conference to discuss cases. Little is
known about the process by which decisions are made.
What we do know!
1
2
3
4
The Chief Justice presides over the deliberations.
Chief Justice calls up case and tells the other Justices his/her opinion
on the case.
The other justices, ranked by seniority, give their thoughts on the case
at hand.
The conference leads to tentative conclusion and vote.
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Decision-Making Frameworks
There are different ways to think about the constitution.
1
2
3
4
5
Original Intent − When this framework is used the Justices look for
the intent of the framers of the constitution. Thus they look at other
documents in addition to the constitution (e.g. federalist papers).
Literalism − Look at the exact words in the constitution.
Meaning of the Words − Look at the words in the constitution and
try to ascertain their meanings. What do they imply?
Stare Decisis − When this framework is used the Justices look to
pervious decisions to make their current decision (literally translated it
means (“Let the decision stand!”)
Attitudinal − Justices make decisions based on their political
ideologies.
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Decision-Making Frameworks
Judicial Activism − “When judges deliberately shape judicial
doctrine to conform with their personal view of the Constitution and
social policy (KGK, 782).”
Judical Restraint − “The judicial action of deferring to the policies
emanating from the elected branches in the absence of a clear
violation of the Constitution or established doctrine (KGK, 791).”
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Writing Opinions
Who writes the decision?
1
2
If Chief Justice votes with majority he/she picks who writes the
majority opinion.
If the Chief Justice does not vote with the majority then the most
senior majority member decides who writes the decision.
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Writing Opinions
The chosen Justice drafts an opinion and sends it to the other
members of the majority.
When a Justice receives a draft opinion they have four options.
1
2
3
4
Agree with it and join the opinion.
Bargain with the writer to make changes.
Write a dissenting or concurring opinion.
Wait for dissenting and concurring opinions before deciding.
Typically opinions are revised 3-4 times.
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Important Concepts
Appellant − “The party dissatisfied with a lower court ruling who
appeals the case to a superior court for review (Epstein et al, 692).”
Comity − “The principle by which the courts of one jurisdiction give
respect and deference to the laws and legal decisions of another
(Epstein et al, 693).”
Dicta − “Those portions of a judge’s opinion that are not essential
to deciding the case (Epstein et al, 693).”
Ex Parte − “A hearing in which only one party to a dispute is
present (Epstein et al, 693).”
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Important Concepts
Remand − “To send a case back to an inferior court for additional
action (Epstein et al, 694).”
Recuse − “The action of a judge not to participate in a case because
of conflict of interest or other disqualifying condition (Epstein et al,
694).”
Precedent − “A previously decided case that serves as a guide for
deciding a current case (Epstein et al, 694).”
Pro Se − “A person who appears in court without an attorney
(Epstein et al, 694).”
In Re − “The designation used in a judicial proceeding in which
there are no formal adversaries (Epstein et al, 694).”
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Eleventh Amendment
“The Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted against
one of the United States by Citizens of another State, or by Citizens
or Subjects of any Foreign State (Constitution).”
Cohens v. Virginia (1821) − Supreme Court rules “that the
Eleventh Amendment did not preclude the Supreme Court’s exercising
jurisdiction over a federal question raised on appeal by citizens of
their own states (Epstein et al, 371).”
This decision stands until the 1990’s.
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Eleventh Amendment Revisited
Seminole Tribe of Florida v. Florida (1996) − Supreme court
rules that “[e]ven when the Constitution vests in Congress complete
law−making authority over a particular area, the Eleventh
Amendment prevents congressional authorization of suits by private
parties against unconsenting States.”
Alden v. Maine (1999) − Supreme Court rules that states cannot
be sued by their own residents in their own court systems.
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