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III) The Federal Courts

A) Introduction
1) Types of Law
a) Statutory – violation of written statute
b) Common: precedents/stare decisis – unwritten law
 Precedents – usually not overturned, where most common laws come from (previous
rulings)
 Stare decisis – usually what the court acts upon, “let decision stand”
c) Criminal – violation of a criminal law/established law
 Violation of established criminal law
 Jury must have evidence and be convinced beyond reasonable doubt of guilt to convict
 Punishments: jail/fines/death?
d) Civil: Torts, Writ of Mandamus, Injunction, Class Action Lawsuits
 Government not going after somebody for violating the law
 Tort – disputes (civil case)
 Writ of Mandamus – court order trying to force someone to do something
 Injunction – suing to force somebody to stop doing something
 Class action lawsuit – group filing a suit together
 Punishment: cash settlements; forced to do or stop something
2) Judicial power is passive
 Judges must wait until cases come to them
3) Only those with standing may challenge a law or government action
 Standing - injury
4) Judicial law-making
 Court interprets the law/sets precedent
5) Four types of Jurisdiction – the power of the court to hear a case
 Exclusive – the only court where the particular case can be tried
 Concurrent – one of multiple courts that can hear the case (federal & state court)
 Original – where case is originally heard
 Appellate – ability to hear case on appeal
6) Federal courts have jurisdiction if the case involves:
a) The Constitution, federal law, treaty
b) Admiralty (high seas) or maritime law (deals with high seas but occurs on land)
c) Disputes between two or more states
d) The U.S. government as a party
e) Citizens of different states
f) Ambassadors or diplomats
7) Dual system of courts (federal & state)
8) Structure of the State Courts
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9) Structure of Federal Court System
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B) Federal Attorneys and Judges
1) Federal Attorneys
a) Attorney General – manager of department of justice
b) Solicitor General – trial lawyer for the Supreme Court/U.S.
c) U.S. Attorney – trial lawyers for lower federal courts; appointed by president for 4 year term
2) Federal Judges (In Article III Courts)
a) Appointed by President with “advice and consent” of Senate
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b) Term is life with good behavior
c) Compensation determined by Congress but can’t be lowered during term
d) Factors affecting selection of federal judges
1. Senatorial courtesy/Political parties
2. Senate Judiciary Committee – in charge of hearings
3. Confirmation – majority senate vote
4. Diversity – racial, gender
5. Age – around 50; stay a really long time
6. Ideology
7. American Bar Association ratings
8. “Paper trail” – decision justices have laid down
9. Number of judges
C) The Supreme Court
1) Background
a) Article III – only court mentioned (gave ability to create lower courts)
b) 8 associate justices & 1 chief justice
c) Highest court in land/Court of last resort
d) Key powers:
1. Judicial Review: Marbury v. Madison (1803)
 Decides laws are constitutional or not
2. Interprets broadly worded laws of Congress/Constitution
3. Overturn previous Supreme Court decisions
2) Jurisdiction
a) Original FEW (states, ambassadors, foreign government)
b) Appellate Most (court of appeals, State Supreme Court)
3) How case reach Supreme Court
a) Petition for Writ of Certiorari – court order for final appeal
b) Rule of 4 – 4 justices agree to grant Writ of Certiorari
 If not, the ruling of lower court stands permanently
c) Request more info & oral arguments or announce a per curiam opinion based on the
attorney’s briefs
 Per Curiam: a ruling issued by an appellate court of multiple judges in which the decision
rendered is made by the court (or at least, a majority of the court) acting collectively and
anonymously
4) Oral Arguments
a) Term: 1st Monday of October – June
b) “Sittings” (hear cases & deliver opinions) + “recesses” (review petitions, discussing cases,
vote, writing opinions)
c) Hears cases with quorum of 6
d) Attorney briefs/amicus curiae briefs
 Amicus Curiae briefs - a testimony that has not been solicited by any of the parties, or a
learned treatise on a matter that bears on the case
e) 30 minutes each side (but justices can interrupt frequently)
f) Friday conference
5) Written Opinion
a) Types: unanimous (very rare), majority, dissenting (minority; if all agree on dissent it can be
overturned on basis), concurring (agree with majority but different philosophy)
b) Simple majority needed/ties = previous decision stands
c) Assigning of opinion – if the chief justice is in the majority he usually writes it, if not, the
most senior member assigns it to someone (usually himself)
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d) Purpose of opinion – give public rationale
6) Voting Blocs on current Supreme Court
a) Liberals: Ginsberg (Clinton/78), Breyer (Clinton/73), Sotomayor (Obama/57), Kagan
(Obama/51)
b) Conservatives: Roberts (Bush 43/56), Scalia (Reagan/75), Thomas (Bush 41/63), Alito (Bush
43/61)
c) Swing/Moderate Conservative: Kennedy (Reagan/75)
D) Judicial Activism v. Judicial Restraint
1) Judicial Activism – idea that the court is legislating/trying to solve social problems from the bench
2) Judicial Restraint – court should be about original intent (founding fathers) only
3) Historical developments
4) Restraint on judicial power
a) No enforcement power/passive
b) President/Congress
c) Stare decisis – set decision/precedent stand
d) Existing laws + The Constitution
 Congress can change law or change constitution
e) Public opinion