AP US GOVERNMENT
& POLITICS
UNIT 7 THE JUDICIARY
POWERPOINT #12:
The Judiciary
THE FEDERAL COURTS
Where do federal cases begin?
District
Courts
Court of
Appeals
90 plus
courts
12 courts
Original
jurisdiction
Appellate
jurisdiction
Supreme
Court
Only 1
Original &
Appellate
jurisdiction
District Courts
• Most federal cases begin here.
• Usually only one judge presides over the court
(However, each district court has multiple judges
depending upon how much case work there is in that
territory).
• Important players:
– Federal magistrates: issue warrants for arrest, set
bail (kind of like a judge – they assist the district judges)
– U.S. Attorneys: nominated by the president they
prosecute violators of federal law
Court of Appeals
• Its purpose is to focus on correcting errors of
procedure and law that occurred in original
proceedings; thus unlike District Courts there is no
trial & testimony.
• It serves as a “gatekeeper” to the Supreme Court
weeding out cases that ought to be reconsidered.
• Cases are heard by rotating
judges, but occasionally 3
judges will sit and review a
case together.
The Supreme Court
• The highest court in the land and it has the
final say in all legal matters.
• Most cases arrive through appeals, but it also
has original jurisdiction. (In other words a case can
begin there, but for the most part one arrives after someone
appeals what an appeals court has said).
Federal judges are appointed, not elected
• The president attempts to select a nominee that shares
their constitutional philosophy, but also one that can
survive Senate confirmation.
• Unlike lower court nominations which have often been
unanimously approved, in recent decades Senate
approval has been partisan.
• Federal judges do NOT have to worry about a “term,”
they serve for life (i.e. “during good behavior”) and can only be
removed through impeachment.
This is an example of the president’s
and Congress’ judicial power
The
President
The President
nominates
someone to the
federal judiciary
The
Senate
The Senate Judiciary
Committee and then
Senate confirm the
nominee
Supreme
Court
The individual
becomes a
member of the
federal court
system
Selecting a judge for the . . .
The Lower Courts (District & Appeals):
• Presidents nominate a judge of their choosing,
but do so under senatorial courtesy:
– If a Senator from a state where the judge will serve
(and also from the same party as the president)
objects to the nomination other Senators will align
with that Senator out of courtesy and refuse to
confirm the nomination.
– As a result, president usually work with home state senators
and ask for suggestions when making lower court nominations.
– Senatorial courtesy tends be strongest for district
appointments, not appeals court appointments.
The Supreme Court:
• Presidents do not have “senatorial courtesy”
obstructing their Supreme Court nominations,
but since the court has the final say in all legal
matters both the Senate, the president, and
various political interests (political parties, interest
groups, etc.) have a vested interest in who gets
nominated.
How do the federal courts (judicial branch) affect
American policy?
• They interpret the Constitution as well as the
actions of the legislative & executive branches.
Therefore, unlike other policymakers who create
policy out of thin air, the courts make policy by
making decisions on disputed matters.
Permitting openly
gay soldiers to serve
in the military
Pass a law that opens
trade with Cuba
In Brown v. Board of
Education segregation was
found unconstitutional
Getting your case heard in federal court
• Federal cases involve constitutional issues and
cases where the parties are government agencies
or states.
• It is almost impossible for district courts to turn
down a case – for federal cases are supposed to begin
with them!
• Courts with appellate jurisdiction (Appeals, U.S.
Supreme Court) have more flexibility.
• 8,000 cases are appealed to the Supreme Court each year, the
Court usually only chooses to hear a few hundred.
• In order to be heard at the Supreme Court four of the justices
must agree to hear it – Rule of four.
• When the Supreme Court decides to hear a petition or bring up
a case from a lower court (using their appellate abilities) they are
granting a writ of certiorari.
How do they decide what to hear?
• Rule of four (Supreme Court) if they can’t get 4 justices to want to
hear its probably not worth it.
• Issues involving civil liberties get a lot of attention.
• Issues where litigants have a serious interest in the
outcome in the case (standing to sue).
• They try to avoid topics that are too “hot” or too political.
• They tend to take the requests of the U.S. solicitor general:
– They represent the side of the federal government in the U.S. Supreme
Court when the government is one of the litigants
– A top ranking official in the Justice Department
– Presidential appointee
Making a decision on cases
• The Supreme Court’s decision and the legal reasoning
behind it is called the opinion of the court (also called the
majority opinion).
• Not all justices may agree with the decision and choose
to write their own opinion.
– Concurring opinion: a justice’s opinion who AGREES with the
court’s decision / majority opinion.
– Dissenting opinion: a justice’s opinion who DISAGREES with the
court’s decision / majority opinion.
• The Supreme Court ultimately decides on less
than 100 cases a year, often they return the case
back to a lower court or like the appeals courts
will settle on the principle of stare decisis ‐ they
will “let the decision stand” from the previous
lower court.
• Generally, judges don’t like to create
policy, but as a result of their
decisions they do affect public policy.
– Judicial restraint: a theory of judicial interpretation
that encourages judges to limit the exercise of their
own power. It asserts that judges should hesitate to
strike down laws unless they are obviously
unconstitutional.
– Judicial activism: describes judicial ruling suspected
of being based on personal or political considerations
rather than on existing law.
Court History
• Various court eras exist where some issues and
decisions have been more prominent than others:
– 1789 – 1860: issues dealt with slavery and the strength &
legitimacy of the federal government. Cases often resulted
in the favor of the supremacy of the federal government
(i.e. McCulloch v. Maryland).
– 1860 – 1937: issues dealt with the relationship between the
federal government and the economy; the Court usually
restricted the government’s power.
– 1937 – present: issues have dealt with personal liberty and
social and political equality. The court has expanded the
scope of personal freedom and civil rights and given more
flexibility to government’s ability to regulate the economy.
• In recent decades shorter periods of judicial
activity where there has been a consistent
constitutional viewpoint by the Supreme Court
they have been labeled by the Chief Justices who
presided over them.
1937 – the present
Warren
Court
Liberal
Brown v. Board of Education
Gideon v. Wainwright
Burger
Court
Rehnquist
Court
Roberts
Court
Conservative, but . . .
Conservative, but . . .
Conservative
Latin Legal Terms you NEED TO KNOW.
TERM
DEFINITION
Amicus Curiae
“Friend of the Court” A brief filed by a non litigant hoping to influence a court to find for one
party over another. Ex. The AMA filed an amicus curiae brief in “ObamaCare” case.
De Facto
“As a matter of fact” Term used to describe something that is true in practice, but not in theory.
Ex. The de facto segregation that persisted after the Brown ruling caused the Court to issue
Brown II.
Ex Post Facto
“After the fact” Term used to describe the idea that laws are not retroactive. Ex. Hand held
devices while driving was made illegal in 2014. The courts cannot fine you for a incidence of
using them while driving that occurred back in 2013.
Habeas Corpus
“Show me the body” Idea that all detained citizens must appear before a judge and be officially
charged or let free. Ex. During WWII, FDR suspended Habeas Corpus in the internment of
Japanese Americans. The Supreme Court upheld this suspension in Korematsu v. United States.
Subpoena
A written command from the court to surrender evidence or to appear before the court to
testify. Ex. After the Watergate Scandal, the courts subpoenaed Nixon’s recorded conversations
Stare Decisis
“Do not disturb the undisturbed”. The idea that courts should abide by established precedents
and previous rulings. Ex. Opponents of abortion law reform would support stare decisis in the
matter.
Writ of Certiorari
A decision by the Supreme Court to hear an appeal of a lower court’s opinion. Ex: The largest
part of the Supreme Court’s caseload comes from writs of certiorari issued to losers of appellate
court cases.
Writ of Mandamus
“We command” An order that the Supreme Court can send to the lower courts that must be
obeyed. These order firmly establish the hierarchy in the court system. Ex. The Supreme Court
can order a lower court to hear a motion with a writ of mandamus