Chapter 15 Pages 451- 475

Textbook Formal Outline

The Judiciary

General
-S.C. judges= appt by pres; confirmed by Senate. Most of American law is bases on Eglish
system, especially English common law tradition, decisions made by judges is important source
to laws.

I. The Common Law Tradition (p. 454)

A. 1066- Normans conquered England; Under ruling of William the Conqueror and

successors, they established Kings court curiae regis to unify the country. Uniform
set of rules was sought and as # of cases increased, most important were recorded in
Year books. They used the previous courts cases to decide on those similar cases.
When unique case, judges made new law basing decision on prior principles of
earlier cases.
1. Common Law- Judge-made law originationg in England from decisions
shaped according to prevailing custom. They were applied to similar situations
and gradually b/came common to nation.
B. Deciding new cases in ref. to former decisions, precedents , b/came cornerstone of
Eng. and American judicial systems and is in doctrine of stare decisis--“to stand
on decided cases,” judicial policy of followed precedents established by past decisions
1. Ex) lower court of state must follow S.C. precedents
2. Stare decisis is basis for judicial decision making in all countries having sim.
Law systems; US, Brittain, 13 others having common law systems
II. Sources of American Law
Body of American law includes: fed/state const, leg. Statutes, administrative law, case law-
legal principles of court decisions
A. Constitutions
1. Fed gov and states const. sets forth general org., powers, & limits of gov.
US const.=supreme law of land. No unconstitutional law allowed. State const.
supreme in their borders, unless conflicting w/ fed laws. Defines what
state & fed. Powers can extend to.
a) Const as supreme law due to dissatisfaction w/’ weak fed gov
under Art. Of Confederations(1781)
B. Statutes and Administrative Regulations
1. English common law provides basis for civil and criminal legal systems, and
have more important to define rts of individuals.
2. Fed statutes relates to any subj. concerning fed gov. and covers the following
ranges: hazardous waste to fed taxation.
3. State Statutes include the following: criminal codes, commercial laws.
4. Ordinances: statutes passed by cities, counties; deals with the following:
zoning proposals & public safety. Rules and regulations issued by administrative agencies is
another source of law
C. Case Law
 1. Case Law formed because of common law tradition,(in which stare decisis
plays role).
2. Case Law: rules and principles announced in court decisions. Includes judicial
interpretations of common law principles of doctrines as well as
interpretations of const law, salutatory law, and administrative law.
III. The Federal Court System (p.456)
U.S. has dual court system(fed & state, each state having its own system of courts)
A. Basic Judicial Requirements
Before case can be brought to either state/fed court, 2 requirements must be met.
Jurisdiction
a) jurisdiction: authority of court to hear and decide a case. Not all courts
have authority to decide all cases. Place of court case origination &
subject matter are jurisdictional factors.
b) State courts exercise this over residents of the region/ county /district.
States highest court has jurisdictional authority over all residents in
state. Fed jurisdiction also limited(Art III, Sect 1)
1) const. limits jurisdiction of fed courts to cases on
federal question( question pertaining to const, acts of
Congress/treaties. Provides basis for fed jurisdiction
or citizenship diversity).
2) Diversity of Citizenship: exists when parties to a lawsuit are
from diff. states/ when suet involves us citizen gov. or
foreign person. Amt in controversy must be at least $75,000 before
fed court can take jurisdiction
Standing to Sue
a) or sufficient stake in matter to justify bringing suit. Suer must have
suffered harm/threatened. Requires controversy at issue by justifiable
controversy(real/substantial controversy)
B. Types of Federal Courts
3-tiered:1) US district courts w/limited jurisdiction 2) intermediate US courts of a
appeals 3) US Supreme court

1. U.S. District Courts

a) trial courts: courts where trials are held and testimony is taken
general jurisdiction: they can hear cases involving broad array of issue,

usually fed cases.

other courts on lower tier are courts of limited jurisdiction: authority to
hear cases is restricted to ceratin types of claim,i.e, tax claims/
bankruptcy petitions
b) at least 1 fed district court in each state. Population changes and case
loads can cause # districts to vary over time. 94 now.
c) Dissatisfied party, with district court decision can appeal case to court
of appeals, appellate court (court having jurisdiction to review
cases and issues originally tried in lower courts)
2. U.S. Courts of Appeals (US circuit courts of appeals)
a) 13- Court of appeals for 13th circuit, Fed Circuit, has nat. appellate
 jurisdiction over certain types of cases, involving patent law and
those
with US gov is defendant.
b) when reviewing case of district court, doesn’t have another trial, but
3/>judges review the record of appeal seeing if prior court made
error.
c) usually don’t look @ questions of fact, but of law
d) usually are final
3. The United States Supreme Court
a) highest level of fed court system
b) came into being 1789. only one S.C.
d) can act as trial court in exercising original jurisdiction, or it can work
as appellate court. Hears from all other courts.
e) Can review state S.C. decision if fed ? Is involved.
C. Parties to Lawsuits
1. In most lawsuits, parties are plaintiff(person initiating lawsuit) and
defendant(person against whom lawsuit is brought)
2. Interest groups
a) litigate(bring to trial) or assist it in cases of racial or gender-based
discrimination
b) file amicus curiae briefs(friend of the court, supporting desired
outcome)
C) file class- action suit: where lawsuit filed by ind. seeking damages for
all persons similarly situated. Will affect all members of class.
Strategy for this pioneered by NAACP, Sierra club, believing courts
would offer most sympathetic on views not congress.
D. Procedural Rules
1. Established by fed and state courts, shaping litigating process.
Rules designed
-To protect rts and interests of the parties,
- to ensure litigating proceeds in fair orderly,
- to identify issues to be diced by court, saving court time and costs.
2. Parties must comply with procedural rules and judges orders during litigation
process. It not, court cites for him for contempt.
a) CIVIL CONTEMPT(failing to comply with courts order for benefit of
another party to the proceeding) and CRIMINAL

ATTEMPT(obstructing administration of justice or bringing the court

into disrespect) can be punishable by being taken custody, fines.
b) For civil contempt to be freed compliance occurs. Criminal contempt
can not avoid punishment by complying with previous order.

IV. The Supreme Court at Work p. 460

reg. annual term 1sat Mon in Oct.- late June/early July of next yr. Only some
cases are held after regular term; most wait for next session.
Of cases decided each yr, S.C. rep < 1 %. Influences nation’s policies by issuing
decisions in some cases, and refusing to hear others.
A. Which Cases Reach the Supreme Court?
 1. Factors That Bear on the Decision
A) court can choose which cases to decide, no official right to appeal to
S.C.
2. Granting Petitions for Review
A) writ of certiorari: order issued by higher court to a lower court to send
up record of case for review. Principal vehicle for US S.C. review.
B) court won’t issue a writ unless 4 justices approve.
1) rule of four: S.C. procedure requiring 4 affirmative cotes to hear
case before full court
B. Deciding Cases
1. Once certiorari granted, justices do extensive research on legal issues & facts
involved in case. Each justice entitled to 4 law clerks.
2. All appeals courts don’t hear evidence. Based on abstracts , record, and briefs
3. Attorneys permitted to make Oral arguments( verbal arguments presented in
person by attorneys to appellate court. Each attorney presents reasons to court
why court should rule in her or his clients’ favor). Court hears them Mon,
Tues, and sometimes Thurs, usually for 7 two-week sessions scattered from 1st
week of Oct. to end of April or May. All justice questions are recorded.
4. In the entirely private conferences(Wed. and Fri) justices meet to discuss and
vote.
C. Decisions and Opinions
1. Once decision made opinion written. Includes issue presented, reasons for
decision, rules of law which apply.
Opinion: statement by judge or court of decision reached in case tried or
argued before it. Openness forth law applying to case and details legal

reasoning on which ruling was based. self- perpetuating and demand funding
that will result in continued existence of agency
2. Many times case is affirmed
Affirm: to declare court ruling valid and must stand
3. Reverse: to annul or make void court ruling on account of some error or
irregularity
4. Remand: to send a case back to the court that originally heard it. For a new
trial or other proceeding.
5. Sometimes court’s written opinion is unsigned( opinion per curiam).
If chief justice was w/ majority opinion, but if not then senior justice of
majority side decides who writes opinion.
6. TYPES OF OPINIONS
a) Unanimous opinion: court opinion all judges agree.
b) if not a unanimous decision: Majority Opinion: court opinion
reflecting views of majority of judges
c) Concurring opinion: sep. opinion, done by judge supporting majority
decision who wants to clarify a particular point or to voice
disapproval of grounds which decision was made.
d) Dissenting opinion: sep. opinion which judge disagrees with majority
conclusion; expounds her views
1) forms basis of arguments used in prior yrs causing court
F) then S.C. announces decision publicly after opinion written.
 Published in United States Report.
V. The Selection of Federal Judges p. 463
A. Judicial Appointments (Art II, Sect 2)
Over 850 fed judges; for life unless die, resign, retire.
- candidates suggested by dpt of justices, Sen., other judges, interest groups

- political ideology, ethnicity, gender, competence involved

- Senatorial Courtesy: constraint on pres. Freedom to appoint
whomever the administration chooses. Allows a Sen. of pres political

party to veto judicial appt of his/her state.

1. Federal District Court Judgeship Nomination
a) Nomination originates w/ senator or pres party from the state. Pres can
communicate and make a common decision to satisfy pres.
2. Federal Courts of Appeals Appointments
a) Fewer than district court apptmets, but more important, b/casue they
handle more important matter, in the view of pres.
3. Supreme Court Appointments
a) cost common previous job: common occupational background
B. Partisanship and Judicial Appointments
1. Ideology plays large role in fed justice appts; usually similar partisan
distributions that of pres. (ex: Reagan & George W. Bush and Clinton p466)
a) no guarantee that judge will rule as pres want s them to
C. The Senate’s Role
1. Ideology also plays a role in Senate’s confirmation hearings, and presidential
nominees to S.C. have not always been confirmed. (20% pres nom. Rejected
or not acted on).
a) U.S. refused to confirm pres. Judicial nominations from Jackson
pres.(1829) to Ulysses Grant pres.(1877).
b) Clinton had little trouble getting Ginsberg and Breyer nominated.
VI. Policymaking and the Courts
Life appt, can affect, national policy for many years. Main job is interpreting, but also

make policy. Main policymaking tools is judicial review.

A. Judicial Review- power of courts to determine whether a law/ action by other branches
1. Acts as a check to other branches.
2. Not noted in const.; established by Marbury v Madison
3. Some claim it gives them too much power
B. Judicial Activism and Judicial Restraint
1. Judicial activism: doctrine resting on conviction that fed. Judiciary should take
an active role in using its powers to check on Congress, state leg, and
administrative agencies’ activities.
a) active period= 1953-1969
2. Judicial restraint: rests on assumption that courts should defer to decisions
made by legislative and executive branches, because members of Congress
and pres are elected by the people whereas members of fed judiciary
are not.
public interest.
 C. Ideology and the Rehnquist Court

1. Rehnquist=16th chief justice S.C. in 1986. Strong anchor of conservative wing.

Rehnquist, Scalia, Thomas=conservative. Stevens, Souter,
Ginsberg, Beyer= Liberal-to moderate views. Warren court.
2. Federalism
a) some rulings have had conservative approach
1) 1995- leg. law reg. possession of guns in school zones had
nothing to do with interstate commerce clause,
therefore
Congress overstepped its power.
2) 2000- court held that congress overreached authority under

commerce clause when it included a fed remedy for gender-

motivated violence in Federal Violence against Women Act of

1994.
3. Civil Rights
a) generally conservative in Rehnquist court. One decision refused to

extend const rt to privacy to include rt of terminally ill persons to end

their lives thru physician assisted suicide.

B) 2000- Drivers Privacy Protection Act of 1994

VII. What Checks Our Courts?

A. Executive Checks
1. Judicial implementation: way in which court decisions are translated into

action.
2. Rarely does pres refuse to enforce judicial decision; they usually use influence

by appting new judges and justices as federal judicial seats. Ex of refusal and

disagree w/ court decision= occurred after school desegregation; “all deliberate

speed”-- Little Rock Nine -- National guard sent over, etc.
B. Legislative Checks
1. Courts may make rulings, but often leg. At local, sate, fed levels require
appropriate funds to carry them out. Ex- improving prison conditions
2. Courts rulings can be overturned by const. amendments at fed and state levels.
3. Congress/ state legislature can rewrite old laws or enact new ones(Ex: Civil
Rts act of 1991. 1993: RFRA- broadening religious freedom.
C. Public Opinion
1. Plays sig. role in shaping gov policy. Persons affected by S.C. decision at odds

with views simply ignored court ruling

 A) prayers banned in school 1962, but many Southern districts still
prayed in school.
2. Public can pressure state and local gov officials to refuse to enforce decision.
Judicial implementation requires cooperation of gov officials @ all levels.
3. They tend to avoid issuing decisions that will be at odds with the public. If not,
loss of stature would result.
D. Judicial Traditions and Doctrines
1. S.C. usually exercises self-restraint in making decisions. Originates from
knowledge that they can be checked.
2. Stare decis acts as restraint because it obligates courts, and S.C. to follow
established precedents; rarely are precedents overruled.
3. Lower courts can be a check on higher courts, too. For there have been cases

where lower courts have ignored S.C. decisions

Political Question: issue court believes should be decided by executive /

legislative branch.

VIII. The Judiciary: Why Is It Important Today?

A. 12 attempts for reform. Checked Executive
B. forwarded civil rights ex Brown v Board of edu of Topeka(1954)