POLS 1101 Chapter 15 Reading Summary
POLS 1101 Chapter 15 Reading Summary POLS 1101 08
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Date Created: 09/04/16
English Legal Traditions adversary process Confrontational legal process under which each party presents its version of events. The right to trial by jury dates back in England to the Magna Carta (1215) Trial by jury is crucial to liberty because it inserts a gate of citizen judgment between the accused person and the government that protects the accused from arbitrary detention and unjust punishment. Trials involve questions of fact and questions of law because trial courts sometimes make mistakes about questions of law, the American legal system has followed the British practice by allowing appeals from trial court rulings. Appeals Legal proceeding whereby the decision of a lower court on a question of law can be challenged and reviewed by a higher court. In the U.S. federal system, the courts of appeals and the Supreme Court hear appeals, which involve issues of law. These courts do not retry the facts as esta fblished by the trial court. courts of appeals Intermediate federal courts that are above the district courts and below the Supreme Court. Trial criminal case Government prosecution of an individual for breaking the law. civil suit Lawsuit by a person, organization, or government against another person, organization, or government. Criminal law is based on statutory authority, but statutory authority cannot cover all possible civil disputes between individuals. When there are gaps in statutory law, courts rely on common law. common law Judgemade law in England and the United States that results from gaps in statutory law. Common law requires judges to accept and rely on previous decisions (if each judge makes his or her own decisions on each case, there can be no common law). Precedents Practice of reaching decisions based on the previous decisions of other judges. following precedent promotes greater equality, predictability, and stability in law. Constitutional Grants of Power Constitution establishes judicial branch by referring it to a Supreme Court of the United States and grants Congress the authority to create lower courts at its discretion. The Supreme Court has interpreted this provision to require that people who initiate lawsuits have standing. That is, they must establish that they have suffered a harm that the law protects them against. Judiciary Act of 1789, established thirteen district (trial) courts and three circuit courts with both trial and appellate authority that serve at an intermediate level between the district courts and the Supreme Court. district (trial) courts Federal trial courts at the bottom of the federal judicial hierarchy. Jurisdiction Lawful authority of a court to hear a case. jurisdiction for any federal court: involving federal law, parties include the United States, ambassadors, or other public ministers; or that the parties are residents of different states. judicial review Authority of courts to declare laws passed by Congress and acts of the executive branch to be unconstitutional. Marbury v. Madison An 1803 Supreme Court decision that established the Supreme Court’s power of judicial review. State Courts in the Federal Judicial System Cases appealed from the district courts go to one of the U.S. Courts of Appeals, in which threejudge panels usually decide cases From those panels, losing parties can appeal cases to the entire circuit for an en banc (“by the full court”) hearing, or they can appeal directly to the U.S. Supreme Court en banc Decision by an entire Court of Appeals circuit, typically following an original judgment by a threejudge panel of the circuit. Each state has its own judicial system, and unless a case involves federal law or the type of parties that create federal jurisdiction, cases get resolved in state courts, each of which has its own hierarchy of trial and appellate courts. Cases that involve federal issues that begin in one of the fifty separate state court systems can be appealed to the federal court system in one of two ways: First, criminal defendants who have exhausted their state appeals, that is, have gone through their last appeal at the state level, can file a writ of habeas corpus with a U.S. District Court Second, any parties who have exhausted their state appeals can file a request for review, known as a petition for a writ of certiorari, directly with the Supreme Court. petition for a writ of certiorari Request to the Supreme Court that it review a lower court case. The District Court Today, there are 94 districts. Many states have more than one district, but no district covers more than one state. Many districts have only one judge, but the Southern District of New York has 28, and the Central District of California has 27. In civil suits, plaintiffs (the parties bringing the suit) often request monetary damages to compensate for harm done to them, such as by a broken contract or a defective product. The district courts allowed both suits to move forward as class action lawsuits, meaning that Gratz and Grutter were suing not only on behalf of themselves but also on behalf of all people denied admission at Michigan on account of their race. class action lawsuits Lawsuit filed by one person on behalf of that person plus all similarly situated people. Class action lawsuits can open the gateways of access to groups of citizens in the same circumstances, thus broadening the impact over the possible result of an individual lawsuit. Civil Procedure Litigants settled nearly 99 percent of these cases before going to trial. Discovery grants each side access to information relevant to its suit held by the other side. During discovery, the attorneys for each side can also question witnesses for the other side in a process known as deposition. Outside interests can file amicus curiae (“friend of the court”) briefs, stating their concerns in a case. amicus curiae Latin term meaning “friend of the court” that is used to describe individuals or interest groups who have an interest in a lawsuit but are not themselves direct parties to the suit. The most influential amicus briefs are those filed in the name of the United States, as represented by the Office of the Solicitor General in the Justice Department. Solicitor General Official in the Justice Department who represents the president in federal court. Criminal Procedure In the U.S. federal system, states have primary authority over law enforcement, but the federal government frequently prosecutes drug, weapons, terrorism, and immigration cases, plus other crimes that involve interstate commerce or the instrumentalities of the federal government, such as the post office and government buildings. Under the Constitution, an accused criminal in a federal court has a right to indictment by a grand jury, a specially empanelled jury consisting of between sixteen and twentythree citizens who determine whether the government has sufficient evidence to charge the suspect with a crime. Following indictment, the accused is arraigned, or informed of the charges against him or her, and asked to enter an initial plea of guilty or not guilty. About 90 percent of federal criminal cases are resolved through plea bargains, in which the accused plead guilty, usually in exchange for reduced charges or lesser sentences. plea bargains Agreement by a criminal defendant to plead guilty in return for a reduced sentence. In the small number of cases that proceed to trial, the accused has the right to a trial by jury but is free to request a bench trial, in which the judge decides guilt or innocence. The accused can appeal a guilty verdict, but the double jeopardy clause of the Constitution prohibits the government from appealing a verdict of not guilty. The Court of Appeals Congress has divided the Courts of Appeals into eleven numbered circuits plus a circuit for the District of Columbia and a “federal circuit” that hears appeals from specialized lower courts that deal with patents and customs Appeals from a court of appeals can happen in two ways: First, losing litigants at the court of appeals who believe that the threejudge panel that heard their case did not represent the judgment of the circuit as a whole can request an en banc review. Alternatively, losing litigants can request review by the Supreme Court. majority opinion Opinion of a court laying out the official position of the court in the case. The Supreme Court The Supreme Court’s procedure in handling cases consists of deciding whether to grant review and, if review is granted, of receiving briefs, hearing oral arguments, deciding who wins, and writing the majority opinion. If desired, justices who do not agree with the decision of the Court majority (that is, the decision about who wins the case) can write dissenting opinions. Those who agree with the majority opinion on who should win but differ as to the reasoning can write concurring opinions. Granting Review Most have lost in one of the U.S. Courts of Appeals or one of the fifty state supreme courts. The vast majority of appeals to the Supreme Court come in the form of petitions for writs of certiorari, often shortened to petitions for “cert.” The Supreme Court is also more likely to grant review when the government of the United States, represented by the solicitor general’s office, requests it, either as a petitioning party or as amicus curiae. The filing of amicus briefs by other parties can also be important to the Court, as it signals that the case involves important questions of public policy. Most of the justices’ chambers have joined the “cert pool,” which splits the cert petitions among the clerks of the justices in the pool. the chief justice passes around a “discuss list,” a set of cases he thinks worthy of discussion. Cases not on the discuss list are automatically denied cert, leaving the lower court’s decision as final. The Court grants cert through a rule of four. rule of four Supreme Court rule that grants review to a case if as few as four of the justices support review. Overall, the Court grants only about 1 percent of cert petitions, leaving the lower court decision as final in the remaining 99 percent of the cases. Oral Arguments Following a grant of cert, the justices receive written briefs from the litigants explaining why their position should win. Other parties may file amicus curiae briefs urging the Court to affirm or reverse the lower court decision. Parties normally receive thirty minutes each for oral argument, although the justices frequently interrupt with questions. The Decision Within a few days of oral argument, the justices meet in conference to vote on the merits of the case, that is, to decide which side wins, and to assign a justice to write the Opinion of the Court in the case. If the chief justice is in the majority, he determines who will write the opinion. If the chief justice is not in the majority, the assignment is made by the most senior justice who is in the majority. concurring opinion Opinion that agrees with the results of the majority opinion (that is, which party wins) but sets out a separate rationale. dissenting opinion Opinion that disagrees with the majority opinion as to which party wins. If, due to a combination of concurring and dissenting justices, fewer than five justices join the Opinion of the Court, that opinion becomes a plurality judgment rather than a majority opinion. Plurality judgments have less value as precedents than majority opinions. Judicial Decision Making Because judges are unelected and serve for life, they are not accountable to the people in the same way that presidents and members of Congress are. Judicial review allows an unelected branch of government to strike the laws and actions of the elected branches of government—Congress and the president. countermajoritarian difficulty Alexander Bickel’s phrase for the tension that exists for representative government when unelected judges have the power to strike laws passed by elected representatives. Given the undemocratic nature of judicial review, politicians frequently decry judicial activism. judicial activism Decisions that go beyond what the law requires made by judges who seek to impose their own policy preferences on society through their judicial decisions. These critics insist that judges should act with judicial restraint judicial restraint Decisions by judges respecting the decisions of other branches or, through the concept of precedent, the decisions of earlier judges. Judicial Restraint: The Legal Approach Lower courts are bound by Supreme Court precedents, but the Supreme Court does not necessarily consider itself strictly bound to its own precedents. Beyond precedent, legalbased approaches consider the plain meaning of the law being interpreted. According to Scalia, if such rights are to be protected, they should be granted by democratically elected legislatures, not by lifeappointed judges. Similarly, Justice Clarence Thomas often argues for decision making based on the intent of the Framers. This approach places the meaning of the Framers ahead of the literal meaning of the words that they wrote. It is difficult to know what the Framers meant or what they would have thought if they could have envisioned modern American society. Judicial Activism: The Extralegal Approach Extralegal factors go beyond the legal factors that courts are supposed to consider. The most important sets of extralegal considerations include the justices’ own preferences and strategic considerations based on the preferences of others. The Justicies’ Preference because Supreme Court scholars cannot obtain information from the justices themselves about their ideology, they use indirect measures. Strategic Considerations Negotiations over the content of the majority opinion are a routine part of Supreme Court decision making. A justice may need to consider not only the preferences of other justices but also the preferences of other actors in the political environment The efforts of President Franklin Delano Roosevelt (1933–45) to pack the Court in the face of the Court’s rejection of his New Deal programs assuredly played a role in the Court’s aboutface and subsequent approval of such programs Restraint and Activism in Judicial Decision Making Contemporary research suggests that justices respect the decisions of legislatures and earlier judges when those decisions are consistent with the justices’ ideology. The vast majority of justices are restrained toward laws and precedents that they agree with ideologically but are quite willing to overturn laws and precedents that they are distant from ideologically. The Impact of Court Rulings Additionally, many types of court decisions can be overturned by Congress, state legislatures, or other legislative mechanisms such as statelevel referenda. When a court’s decision is based on the meaning of a statute, Congress can simply overturn the court’s decision if it disagrees with the court’s conclusion. In the constitutional realm, if the Court declares that a practice is not unconstitutional, as in the law school affirmative action case, that practice can still be prohibited through the legislature or, if the state allows, through a referendum. when the Supreme Court declares that the Constitution prohibits an activity, legislatures find that prohibition difficult to overturn. Only five of the Supreme Court’s constitutional decisions have ever been overturned via amendment In addition, most Supreme Court decisions are complied with, even when the consequences for the losing litigants are serious. The Appointment Process for Federal Judges and Justices The Constitution grants the president the authority to nominate judges, but these nominations are subject to the advice and consent of the Senate. Judges confirmed by the Senate serve during “good behavior,” which, short of impeachment, essentially means a life term. The House has impeached only one Supreme Court justice, Samuel Chase (1805), in an attempt by the Democratic Republicans to remove an ardent Federalist from the bench. The Senate rejected every charge against Chase (just three votes short of the required twothirds majority on one of the counts), establishing a custom crucial to judicial independence that judges would not be removed due to partisan disagreements with their decisions. judicial independence Ability of judges to reach decisions without fear of political retribution. The District Courts When a vacancy occurs in a district court, the president consults the senators from the state in which the court is located. If one of them is opposed to the nomination, he or she can invoke the norm of senatorial courtesy and receive the support of other members of the Senate in blocking that nominee. This norm is enhanced by the chair of the Judiciary Committee sending “blue slips,” socalled because of the color of the paper, to the senators of the president’s party of a nominee’s home state, asking whether they approve of the choice. Sonia Sotomayor, who would go on to become President Barack Obama’s first Supreme Court nominee Confirmation of district court judges is generally routine, with nearly 90 percent of nominees between the administration of Jimmy Carter (1977–81) and Barack Obama approved. If the Judiciary Committee approves the nomination, it moves to the Senate floor for a vote. The Courts of Appeals The formal process of appointment for court of appeals judges is the same as that of district court judges, but the greater authority of court of appeals judges means that the Senate and outside interest groups pay much closer attention to the president’s nominees. Overall, the Senate has failed to confirm more than 20 percent of court of appeals nominees since Clinton’s administration (1993–2001), with the overwhelming majority being blocked in the Judiciary Committee. The Supreme Court Given the Supreme Court’s authority, the appointment of a Supreme Court justice is a highstakes affair with extensive media coverage, interest group mobilization, public opinion polls, and the occasional scandal. Presidential candidate Ronald Reagan promised to nominate the first woman to the Court and did so with his 1981 appointment of Sandra Day O’Connor. President Obama received credit for nominating the first Latino to the Supreme Court with Sonia Sotomayor’s appointment in 2009. Although electoral advantage certainly influences presidential decisions, presidents also try to choose nominees who are close to them ideologically, hoping to shape the direction of the Court for years to come. Since the Bork rejection, nominees have dodged questions about their beliefs. The confirmation process has also become a much more partisan process over the years. Thomas was not a supporter of affirmative action, and civil rights and feminist groups objected to his nomination. Then Anita Hill, who had worked for Thomas at the Department of Education and the Equal Employment Opportunity Commission, accused him of sexual harassment. Despite her testimony, the Senate confirmed Thomas by a narrow margin. Demographic Diversity Thurgood Marshall 1 African American to serve Sotomayor is the first and only Latino first thirtytwo nominations went to Protestants, long the dominant religious group in American politics. The first Roman Catholic was Roger Taney in 1836; the first Jew was Louis Brandeis in 1916. Expansion of National Power under the Marshall Court The Marshall Court (1801–35; fourth chief justice) did so not only by affirming its power of judicial review in the Marbury case but also by setting forth a broad interpretation to the scope of national power in the cases of McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824) and by limiting the authority of state judiciaries in a series of decisions culminating in Cohens v. Virginia By establishing judicial review, expanding national power, and ensuring the uniformity of federal law, the Marshall Court set the United States on the path to a strong and unified nation. Limits on National Powers 1830s to 1930s Although the Constitution permitted slavery, the justices did not address the issue directly until the case of Dred Scott v. Sandford (1857). Following the war, Congress proposed and the states ratified the Fourteenth Amendment, which prevented states from denying any person due process of law or the equal protection of the laws and from abridging the privileges or immunities of citizens of the United States In United States v. Cruikshank, the Supreme Court reversed federal charges against the perpetrators of the Colfax massacre arguing that the right to enforce the Fourteenth Amendment’s due process clause gave Congress the authority to act only against states, not against individuals. The Supreme Court generally backed business and industrial interests by setting up barriers to regulation. Strengthened National Powers 1930s to the Present Economic Regulation After his 1936 reelection, Roosevelt struck back at the Court, proposing a socalled Courtpacking plan that would have allowed him to appoint a new justice for every justice older than 70 who failed to resign. Owen Roberts and Chief Justice Charles Evans Hughes began to change their votes, providing majorities for both national and state plans to regulate the economy, thereby removing the need for Roosevelt’s controversial Court packing plan. Increased Protections for Civil Liberties and Civil Rights Outside of incorporation, the Warren Court greatly expanded the interpretation of liberties involving the First Amendment, equal protection, the right to privacy, and criminal procedure. The Roberts Court has been decidedly probusiness, hearing more such cases than previous courts and ruling on them in a decidedly probusiness direction.
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