The U.S. Court System

• There are 2 court systems in the United States: State and Federal.

• State courts hear most of the cases in this country• In addition, there are civil courts and criminal

courts, at both the State and Federal levels• Courts interpret legislation (Article III of Const.) • 2 Views of Constitutional language—strict

constructionist (Jefferson) and loose constructionist (Hamilton)…loose constructionists are often labeled “Activist” by Republicans

• Federalist 78: Judiciary “least dangerous” because it “has no influence over the sword or the purse.”

Why a Nat’l Court System?????

• Under the Articles of Confederation, there was no national judiciary

• Decisions by courts in one State were ignored by courts in other states

• Laws would be meaningless unless Courts could define their “true meaning and operation.” (Hamilton, Federalist # 78)

Marbury v. Madison (1803)

• Congress passes Judiciary Act of 1789 to “flesh out” Constitution

• Section 13: Gave SC original jurisdiction in certain cases

• William Marbury was appointed a Justice of the Peace for DC in the “final hours” of the Adams Presidency…commission not delivered, and Jefferson took over and new Secretary of State Madison ignored the commission

Marbury cont’d…• Marbury sued for his commission

(Marshall was actually the former Secretary of State that was supposed to deliver the commission!!)

• SC granted certiorari• But Marshall has a problem—if he

orders commission delivered, he will be ignored/impeached….if he does not, power of the Court will be weakened

More Marbury…• 3 questions of the case:• Does Marbury have a right to his

commission? YES.• Do the laws of this country afford him a

remedy? Yes.• Can this Court issue the writ of mandamus?

NO…because Section 13, Judiciary Act of 1789 provided the Supreme Court with original jurisdiction in cases in a fashion contrary to the Constitution

More Marbury…• 3 questions of the case:• Does Marbury have a right to his commission? YES.• Do the laws of this country afford him a remedy? Yes.• Can this Court issue the writ of mandamus? NO…

because Section 13, Judiciary Act of 1789 provided the Supreme Court with original jurisdiction in cases in a fashion contrary to the Constitution

• 1st case to declare a law or part of a law unconstitutional, and therefore null and void

• Not the first to test a law, Hylton v. U.S. (1796) had upheld constitutionality of $20 carriage tax

• Justice Gibson, in a Pennsylvania Supreme Court case, Eakin v. Raub, tried to dismiss the power of judicial review, fails

• Judicial Review a fixture of American jurisprudence

McCulloch v. Maryland (1819)

• National Bank of the United states created 1794…debate between Hamilton and Jefferson

• Maryland decides to place a tax on notes at the Baltimore branch of BUS

• McCulloch, bank cashier, refuses to pay tax

McCulloch….• United States takes MD to court• Supreme Court grants certiorari

(“cert”)• Marshall: Supremacy clause makes

federal law supreme• “Power to tax” means the “power to

destroy,” so MD’s taxation of the bank is unconstitutional…states cannot impede Congress

Dred Scott v. Sandford (1857)• •Facts: In 1834, Dred Scott, a Negro slave belonging to Dr.

Emerson, a surgeon in the United States Army, was taken by his master to Rock Island, Illinois, where slavery was prohibited by statute. Later he was taken, in 1836, to Fort Snelling, in the Territory of Louisiana, which was north of the line of 36° 30', and consequently an area in which slavery had been forbidden by the Missouri Compromise. In 1838, he was brought back to Missouri, and in 1847 brought suit in the Missouri Circuit Court to obtain freedom.

• Issue: Can a black slave become a member of the political community formed and brought into existence by the Constitution of the United States and as such become entitled to all the rights and privileges guaranteed by the Constitution to the citizen?

• Decision: No. (vote 7-2) • It was therefore the opinion of the Court that the Act of

Congress (The Missouri Compromise) which prohibited a citizen from holding property of this kind north of the line mentioned was not warranted in the Constitution, and was therefore void

Government and the Economy

• Commerce Clause interpretation—gradually Court has declared almost everything “interstate commerce” which makes it regulatable by Congress

• Court always protected property rights• 14th Amendment also protected private/corporate

property from arbitrary actions of government• Selective Incorporation of Bill of Rights• Court workload rose sharply; 800/900 unconstitutional

federal laws after 1868• Upheld injunctions to prevent labor strikes, limited

antitrust law, restricted ICC (Interstate Commerce Commission) from setting railroad rates, prohibited Federal Gov’t from banning child labor; changed its mind later and allowed some state controls—antiliquor laws, wage/hour regulations

Government & Political Liberty

• From 1936-1974, the Supreme Court did not overturn a single federal law that was designed to regulate business, but it did shoot down 36 laws that violated personal liberties—like laws that restricted freedom of speech, revoked citizenship, or withheld mail

• Roosevelt’s Court Packing Scheme: All started when NRA part of NIRA got tossed. (“We do our part!”)

• Was Social Security Next? Roosevelt offers mandatory retirement plan for SC at age 70, or he should be allowed to appoint new justices. Claims mandate from 1936 election. Public horrified, and plan unnecessary, as Owen Roberts changed his mind on some issues

Reviving State Sovereignty

• There are limits on what Congress may do, and the SC has recognized this in recent years.

• Struck down: • Federal law banning the possession of

weapons near schools• Laws that gave Indian tribes right to sue

states in Federal courts• Brady Bill provision requiring local law

enforcement officers to do background checks

Types of Federal Courts

• Constitutional Courts—established under the authority of Article III—Supreme Court, Courts of Appeals, District Courts, and the Court of International Trade

• Special Courts—created by Congress to hear cases arising out of the expressed powers of Congress. EX: Court of Appeals for the Armed Forces, the Court of Veterans’ Appeals, the Claims Court, the Tax Court, and the courts in the District of Columbia

• Legislative Courts—set up by Congress for a specific purpose, fixed terms for Judges (Court of Military Appeals)

Federal Court Jurisdiction• Jurisdiction—the authority of a court to hear and

decide a case. • Federal Courts may hear a case on subject

matter or Party jurisdiction• Subject matter jurisdiction is limited to: • Federal law/Constitutional questions OR

Admiralty/Maritime law• Jurisdiction requirement also met if parties are

1) U.S. or one of its officers, 2) An ambassador or other foreign rep, or 3) a State suing another state, citizen of a foreign government, American suing foreign gov’t, citizen of one state suing a citizen in another state (dispute over $75,000)

Types of Jurisdiction• Original Jurisdiction—a court in which a case is

heard first• Appellate Jurisdiction—A court that hears a case

on appeal from a lower court practices this• Appellate courts may affirm, reverse, and/or

remand the decision---------------------------------------------------------------• Exclusive Jurisdiction• Concurrent Jurisdiction—State and Federal Courts

share jurisdiction, although “diverse citizenship” is less of a problem today..requires $75K dispute

• Subject Matter Jurisdiction—Federal Question• Party Jurisdiction—complex relationship

Parties in a Court Case

• Plaintiff—brings the suit• Defendant—defends themselves

from the plaintiff’s claims• Defendants have the right to

initiate a countersuit against the defendant

The Appointment of Judges

• Judges are appointed by the President with “advice and consent of the Senate” (Article II, S.2, C.2)

• Rule of “Senatorial Courtesy”—President, before making an appointment, will confer with the two Senators from the home state, to ensure that those Senators approve of the appointment (magic “blue slip”) --NOT used w/ SC justices

• Senate must approve judge, will hold hearings• Difficult to judge ideology; Presidents can and do make

“mistakes” (Bush Sr. and David Souter). To avoid this, judges must pass “litmus test”—test of ideological purity

• Democrats try to make sure American Bar Association plays a role, and want judges who are pro-abortion/AA

• Nominee can be anyone; but usually is a legal scholar or current judge

Terms and Pay of Judges

• Judges in Constitutional courts are appointed for life—ensures independence of the federal judiciary

• Claims Court, Military Appeals, Veterans Appeals= 15 yr. Term

• Tax Court=10 yrs• Territorial courts—10 yr term• Congress sets salaries; over $130,000• Generous retirement plan• Hold their office during “good behavior”• Can be impeached: 13 have been, 7 removed• Best example: Judge Pickering (NH) 1804—Misconduct

and drunkenness

Court Officers• Clerks/Deputy clerks• Stenographers• Bailiffs• At least 1 magistrate per district court—issue arrest

warrants, hear evidence presented by prosecutors to determine if grand jury should be convened, set bail (8-year term)

• 1 bankruptcy judge (current;y 326; 14-yr. term)• U.S. Attorney appointed to each federal district;

prosecute and represent U.S. in all cases (4 yr. term)

• United States marshals—like county sheriffs (4 yr term)

New Jersey v. T.L.O. (1985)

• Student at HS searched on suspicion of smoking, searched and later confessed to possession/distribution of marijuana

• Student sentenced to 1 year probation• Appealed to New Jersey State Supreme Court,

which overturned the conviction because the search violated student’s 1st and 14th Amendment

rights and the Exclusionary rule must be applied• NJ appealed to Supreme Court• Court decided that the “Reasonable suspicion”

standard replaces “probable cause” requirement when you walk into school…TLO’s conviction stands

The Inferior Courts: An Overview

• District Courts—original jurisdiction• Courts of Appeals—appellate

jurisdiction only• Other Constitutional Courts

• Now let’s examine these one by one!

The District Courts• 632 judges, 300,000 cases/year (roughly 80% of

total)• Created by 1789 Judiciary Act• 94 districts—each state 1 district, some states

multiple districts (PR and DC also districts)• Cases usually heard by a single judge, but certain

cases heard by panels of 3 (redistricting questions, civil rights, voting law q’s)

• Have original jurisdiction in civil and criminal cases, everything from bankruptcy to murder: counterfeiting, armed robbery

• Regularly use grand juries• Decisions can be appealed to Court of Appeals or

directly to the Supreme Court

The Courts of Appeals

• Created in 1891 to alleviate pressure on SC• Currently 12 Courts of Appeals; 11 judicial

circuits and 1 for D.C.• 179 judges plus a SC justice is assigned to

each circuit• Usually panels of three hear a case; can sit en

banc • Only appellate jurisdiction from District Courts

or Tax Courts/Territorial Courts/Quasi-judicial agencies like Federal Trade Commission

• 40,000 cases a year

Other Constitutional Courts

• The Court of International Trade—Formed in 1890 as Board of General Appraisers, restructured in 1980. 9 judges, hears cases based on tariff law, trade laws. Panels of 3, serve in major port cities

• Court of Appeals for the Federal Circuit—created 1982, nationwide jurisdiction, can hear appeals from many courts, 12 judges

The Supreme Court• Mandated by Constitution• Size determined by Congress, can change• Currently 8 associate justices plus a Chief Justice• Chief Justice or Associate Justices are appointed by

President and confirmed by Senate when there is a vacancy

• Has Original jurisdiction in only 2 instances: when states are parties or when the case involves ambassadors or other public officials

• Has Appellate jurisdiction in other matters, provided that there is some kind of a federal question on either a federal law or constitutional provision

How Can Cases Reach the Supreme Court?

• By certificate—lower court requests SC to help them decide which rule should apply

• But most cases arrive via a writ of certiorari—an order from the SC to a lower court directing the case to be sent up for review—can actually be given without a lower court decision

• “Rule of 4” required for certiorari (L. “To be made more certain”

• When cert is denied, lower court decision stands• Cert granted usually when 1) 2 or more Federal Circuit

Courts of Appeals have disagreed or 2) Highest court in a state has held a federal or state law either valid or in violation of the Constitution

Litigating a Supreme Court Case

• Court term begins 1st Monday in October, goes till July• Dates are set for oral arguments; half-hour for each

side, justices can and do interrupt constantly• Both sides file briefs—sets out facts, lower court ruling,

opinion of attorneys• Other interested parties file amicus curiae (friend of the

Court) briefs, require Court permission or request• Solicitor General represents the United States in all

cases where the U.S. is a party• Justices conference Wed. and Fri; Chief Justice leads

discussion, others by seniority. Then, justices debate/vote

• If CJ is in majority, CJ writes majority opinion• Justices can write concurring or dissenting opinions• Per curiam opinions are brief, unsigned

The Special Courts• U.S. Federal Claims Court—where you go to sue

the federal government (must get permission because of the doctrine of sovereign immunity). 16 judges, 15 year term. Even if you lose, Congress can vote compensation

• Territorial Courts• Courts of District of Columbia• Court of Appeals for the Armed Forces—15 yr

terms, judges not members of military• United States Tax Court (1969)—12 yr.

Term..civil cases ONLY• United States Court of Veterans’ Appeals

(1988)- 15 year terms

Getting to Court

• Theoretically, courts are “great equalizer”. But SC rejects 96% of cases, and court fees and lawyers fees put a hurt on you

• Indigents can file in forma pauperis.• ACLU support sometimes available• Ditto for the NAACP• Fee shifting more and more common• Section 1983, Chapter 42 U.S.C.: you can

sue government officials if they deprive you of rights and collect from the government

The First Hurdle: Standing• Standing is a legal concept that refers to who is

entitled to bring a case• Must be an actual controversy in cases• You must show that you have been harmed• Mere status as a taxpayer does not give you standing • Recently, it’s easier to get standing—you can sue gov’t

officials and agencies to do something.• Remember, though, the government is protected by

the doctrine of sovereign immunity. All governments enjoy this right.

• Standing in international law: Individuals can’t sue; governments can and may choose to pass winnings to the harmed party

Class-Action Suits

• Citizens may benefit from a court decision even if they are not directly involved

• Usually, you are informed of the case and given the chance to opt out. Otherwise, you are bound by the decision

• Recent examples: Yaz birth control pill, PayPal, Vioxx, Health Care costs, utility overcharging, MALAPPORTIONMENT

• Best example: Brown v. Board of Education (1954)

Brown v. Board of Education of Topeka (1954)

• Facts: A series of cases went to the Supreme Court from the states of Kansas, South Carolina, Virginia, and Delaware. Since all of the cases involved the same basic problem-black minors, through their legal representatives, seeking the aid of the courts in obtaining admission to the public schools of their respective communities on a nonsegregated basis-all were determined by one decision of the Court. In the various states, the black children were of elementary or high school age or both. Segregation requirements were on a statutory and state constitutional basis except in Kansas where only statutory provisions were involved.

• Issue: Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other "tangible" factors may be equal, deprive the children of the minority group of equal educational opportunities?

• Decision: 9-0, ignores Stare Decisis from Plessy case. Separate but equal is NOT CONSTITUTIONAL, violates 14th Amendment Equal Protection Clause.

Judicial Activism

• Example: Supreme Court decided that 1964 Civil rights Act makes it mandatory for San Francisco school system to teach English as a second language

• Liberals say courts are last resort• Conservatives: Judges should merely interpret,

not legislate (Bush v. Gore)• Expect more activism as more people file

lawsuits…also contributing factors…• Sheer growth of government • Increasingly vague laws• Some laws (like regulations) induce lawsuits

Bush v. Gore• The Florida Secretary of State was by state law empowered to

interpret state election laws. When Democrats demanded a recount of votes in four predominantly Democratic counties, she made two major decisions:

• 1. Counties must certify returns by the November 14 deadline. This was supported by Florida law.

• 2. Only ballots with machine errors could be recounted. This ruling was challenged as not being supported by the Florida statutes. These 2 decisions had the effect of stopping manual recount.

• When a circuit court judge in Tallahassee ruled that the Florida Secretary of State was empowered to discard the hand counts in the final count, Gore went to the Florida Supreme Court, which reinstated the recount.

• Bush went to the federal courts and ultimately to the U.S. Supreme Court in Bush v. Gore. Reason: Counting only some votes without a uniform standard is a violation of the 14th Amendment’s Equal Protection Clause.

• The U.S. Supreme Court stopped the recount and ruled in a two-part decision:

• 1. The Florida election canvassing process, with its arbitrary multi-ballot system, was constitutionally flawed. (vote 7-2)

• 2. A recount of any kind cannot guarantee constitutional protection if it were to proceed at the final hour (late evening, December 12, 2000). In effect: "Time's up." (vote 5-4)

Checks on the Judiciary

• Courts—confirmations, impeachment, # of judges and courts, laws regarding lawsuits, and Constitutional amendments (11th, 14th, 15th, 16th, 26th)

• Public Opinion—Judges read newspapers too. Public support of SC varies with support of government

• Reagan, Carter composition of current court• Congress decides jurisdiction: Ex Parte

McCardle, cases on Civil Rights (decisions tempered by Congressional threats)

Ex Parte McCardle (1868)

• Facts: The Constitution assigns appellate jurisdiction to the Supreme Court with "such exceptions, and under such regulations, as the Congress shall make." In February, 1867 Congress passed an act providing for the exercise by the Supreme Court of appellate jurisdiction in the matter of writs of habeas corpus in cases where persons were restrained in violation of the Constitution, or of any treaty or law of the United States. McCardle was held in custody by military authority for trial before a military commission for the publication of incendiary and libelous articles in a newspaper that he edited. Before the judges acted upon his appeal, the act providing for the appellate jurisdiction was repealed. Congress didn’t want its policy criticized!

• Issue: Does the Court have appellate jurisdiction in a case after the act pertaining to such jurisdiction has been repealed?

• Decision: No.

Chapter 16 Learning Objectives

• After reading and reviewing the material in this chapter, the student should be able to do each of the following:

• 1. Explain what judicial review is and trace its origins.• 2. List and comment on the three eras of varying Supreme Court

influences on national policy.• 3. Explain what is meant by a dual court system and describe its

effects on how cases are processed, decided, and appealed.• 4. List the various steps that cases go through to reach the Supreme

Court and explain the considerations involved at each step.• 5. Discuss the dimensions of power exercised today by the Supreme

Court and the opposing viewpoints on an activist Supreme Court.