APG Unit 7: The Judiciary and Bureaucracy

judiciary branch

One of the three branches of government, the judiciary interprets laws; The highest authority in the judiciary is the Supreme Court, which determines the constitutionality of laws; Article 3 of the Constitution; Constitution restricts fed. judges to deciding cases or controversies

judicial system

the system of law courts that administer justice and constitute the judicial branch of government; includes the Supreme Court, 12 Federal Court of Appeals, 91 Federal District Courts, and thousands of state/local courts; system is based on the theory that justice will emerge out of the struggle between 2 points of view; includes criminal and civil cases

criminal law case

government charges individual with violating a specific law, that may be harmful to an individual or to a society as a whole and warrants punishment

civil law case

a case that involves a dispute between two parties (1 can be the gov) and defines the relationships between them; includes cases dealing with contracts, divorce, mergers, and etc; includes statutes and common law

statute

a written law passed by a legislative body

common law

a system of law based on precedent and customs of judicial decisions

participants in the judicial system

litigants, attorneys, judges, jury, groups

plantiff

a person who brings a case against another in a court of law.

defendent

an individual or group being sued or charged with a crime

litigant

a person involved in a lawsuit; includes all participants in the judicial system

standing to sue

the requirement that plaintiffs have a serious interest in a case, which depends on whether they have sustained or are likely to sustain a direct and substantial injury from a party or an action of government; expanded the concept to include class action suits

class action suits

Lawsuits in which a small number of people sue on behalf of all people in similar circumstances; useful in cases as varied as civil rights; SCOTUS has placed restrictions recently; EX: pharmaceutical fraud occured and patients come forward to sue

justiciable disputes

a requirement that to be heard a case must be capable of being settled as a matter of law rather than on other grounds as is commonly the case in legislative bodies

interest groups and courts

get invloved with the court by lobbying on judicial confirmations, filing amicus curiae (friend of court briefs), and sponsoring litigation; they seek out litigants whose cases seem particularly strong; EX: NAACP and Brown v Board (1954)

amicus curiae

A Latin term meaning "friend of the court." Refers to interested groups or individuals, not directly involved in a suit, who may file legal briefs or oral arguments in support of one side; common in controversial cases; filed by interest groups

structure of the federal court system (constitutionally)

US District Court (94 trial courts) --> US Circuit Court of Appeals -->US Supreme Court

independent regulatory commissions

a government agency with the responsibility for making and enforcing rules to protect the public interest in some sector of the economy and for judging disputes over these rules; includes the FRB, NLRB, FCC, FTC, and the SEC; interest groups deem them to be important; Commissioners appointed by President but not removable except "for cause" (to protect independence); Most independent and least accountable part of the federal bureaucracy; can issue appeals to the 12 Court of Appeals (not a constitutional court)

Judiciary Act of 1789

legislation passed by Congress that created the federal court system; allowed Congress the ability to alter and add to the court system when deemed necessary

legislative courts

Courts created by Congress for specialized purposes whose judges do not enjoy the protections of Article III of the Constitution (no life appointments nor salary protections); judges apply body of law within area of jurisdiction (can't exercise judicial review)

original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial.; These are the courts that determine the facts about a case; more than 90% of cases begin and end here; attorneys can appeal a decision to a higher court; at the federal level, district courts and SCOTUS have __

appellete jurisdiction

The jurisdiction of courts that hear cases brought to them on appeal from lower courts; These courts do not review the factual record, only the legal issues involved; at the state level, the appellate process normally ends with the state's highest court of appeal (SCOTUS); Circuit Courts have over District courts, SCOTUS has __ over Circuit Courts

district courts

The 91 federal courts of original jurisdiction; They are the only federal courts in which trials are held and in which juries may be impaneled; entry point for most litigation; do not hear any appeals; each has 2-23 judges, US Marshalls, federal magistrates, and 1 US District Attorney; most cases heard at this level are appealed

district court jursidiction

federal crimes, civil suits under federal law, civil suits between citizens of different states, supervision of bankruptcy proceedings, review of some federal agencies, admirality and martime law cases, and supervison of the naturalization of aliens

US Marshall (district courts)

are assigned to each district; protect the judical process and serve the writs the judges issue

federal magistrates (district courts)

have 8 year terms, issue warrents for arrest, determine to hold individuals for action by jury, and set bail; have become essential components to the judicial system (increasing number of cases)

US Attorney (district courts)

1 in each district (91 in US total); nominated by the president and confirmed by the Senate; serve at the discretion of the president; prosecutes violations of federal law and represent the US government in civil cases

court of appeals

Appellate courts empowered to review all final decisions of district courts, except in rare cases.; they also hear appeals to orders of many federal regulatory agencies; have the authority to review and enforce orders of independent regulatory commission (EX: SEC); US is divided into 12 judicial circuits with 3 judges per circuit and the US Court of Appeals for the Federal Circuit with 12 judges; focuses on correcting errors for procedure and law that occured in the original proceedings; sets precedent for all courts

supreme court

The pinnacle of the American judicial system; The court ensures uniformity in interpreting national laws, resolves conflicts among states, and maintains national supremacy in law; It has both original jurisdiction and appellate jurisdiction, but unlike other federal courts, it controls its own agenda; 9 justices (8 associate and 1 chief justice); appeals heard at this level must involve a "substantial federal question"; doesn't have the jurisdiction to settle matters of state law of determining guilt

justice vs judge

Trial and intermediate appellate court judges in most states and in the federal judicial system are called judges, while those on the highest courts are justices (SCOTUS)

senatorial courtesy

An unwritten tradition whereby nominations for state-level federal judicial posts are usually not confirmed if they are opposed by a senator of the president's party from the state in which the nominee will serve; The tradition also applies to courts of appeals when there is opposition from a senator of the president's party who is from the nominee's state; if isn't applicable, other congresspeople will influence selection

divided government and judicial nomination

a divided government causes a slow nomination process; high polarization of politics cause all federal courts to have partisan nominations and senatorial hearings (depend highly on majority party)

adversary system

A judicial system in which the court of law is a neutral arena where two parties argue their differences; the objective is to win (justice usually prevails but absolute truth isn't always the objective); the origins are the Trial by Ordeal (jury system) and Trial by Combat (origins of attorney); is the US judicial system

inquisitional system

a European method for handling disputes in which the judge plays an active role in gathering and presenting evidence and questioning witnesses; judges and juries sit together (judge isn't neutral); no witness stand, stories may be told to illustrate a point; not the US judicial system

federal jurisdiction

Jurisdiction given to federal courts in cases involving the interpretation and application of the U.S. Constitution, acts of Congress, and treaties; includes diversity of citizenship cases, federal question, and judicial review

diversity of citzenship case

civil suit between citizens of 2 different states and the amoung is over $75k

judical decison-making

involves a choice between competing values by fallible, pragmatic, and nonrational people in a highly complex process in a human setting

writ of certiorari

A formal document issued from the Supreme Court to a lower federal or state court that calls up a case; occurs is 4/9 justices agree to grant review of a case (rule of 4); SCOTUS avoids cases too politically "hot" to handle or divide the Court too sharply; cases are to be brought for the betterment of the people

solicitor general

A presidential appointee and the third-ranking office in the Department of Justice; is in charge of the appellate court litigation of the federal government; seel court review of important cases; key functions include deciding whether to appeal cases the government has lost in lower courts, to review and modify the briefs presented in government appeals, to represent the government before SCOTUS, and to submit an amicus curiae brief on behald of a litigant in a case in which the government has an interest but isn't directly involved

per curian decision

decision without explanation; 12 on top of 75 formal cases annually in SCOTUS; doesn't set a precendent

opinion

A statement of legal reasoning behind a judicial decision of SCOTUS. The content of an opinion may be as important as the decision itself.; written during discussion after oral arguments; written by the Chief Justice or the Chief Justice assigns it to an associate; includes majority, dissenting, and concurring

majority opinion

a statement that presents the views of the majority of supreme court justices regarding a case; is the decision of the case

dissenting opinion

A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion

concurring decision

Written by one (or more) justices who agree with the decision of the court but for a different reason

stare decisis

A Latin phrase meaning "let the decision stand." Most cases reaching appellate courts are settled on this principle.

precendent

how similar cases have been decided in the past; all courts rely heavily on this; lower courts are expected to always follow this

originalism

A view that the Constitution should be interpreted according to the original intentions or original meaning of the Framers; Many conservatives support this view; includes the original intent theory and the original meaning theory

original intent theory

interpretation of a written constitution or law should be consistent with what was meant by those who drafted and ratified it

original meaning theory

the view that judges should base their interpretations of a written constitution or law on what reasonable persons living at the time of its adoption would have declared the ordinary meaning of the text to be (most originalist agree with this)

attitudinal model

a model of decision making in which justices decide cases based largely on the outcomes they prefer rather than on precedent or the meaning or intentions of the Constitution's framers or legislators

judicial implementation

How and whether court decisions are translated into actual policy, thereby affecting the behavior of others; The courts rely on other units of government to enforce their decisions; judicial decision is the end of the litigation process and the start of the judicial implementation process; implementators are more likely to comply if provided with clear and detailed court opinions

inplementation of court decision elements

interpreting population, implementing population, and consumer population

Marbury v. Madison

The 1803 case in which the Supreme Court asserted its right to determine the meaning of the U.S. Constitution. The decision established the Court's power of judicial review over acts of Congress; found the Judiciary aCt of 1987 unconstitutional

judicial review

The power of the courts to determine whether acts of Congress, and by implication the executive, are in accord with the U.S. Constitution; established by Marbury v Madison

Marshall Court (1801-1835)

The Supreme Court under Chief Justice John Marshall. Chosen by John Adams, a federalist, the Court was a Federalist stronghold during years of Republican administration. Under Marshall, the Court ruled on federal vs. state power and congressional control of interstate commerce. The Court became powerful.

Warren Court (1953-1969)

the Supreme Court during the era in which Earl Warren served as Chief Justice, best remembered for expanding the rights of minorities and the rights of the accused

Burger Court (1969-1986)

Richard Nixon's appointment of Warren Burger as chief justice returned the Supreme Court to a more conservative ideology with regard to narrowing the rights of defendants, permitted abortions in Roe v. Wade (1973) and ruled that Nixon did not have executive privilege over information in a criminal proceeding in U.S. v. Nixon (1974). In Regents of the University of California v. Bakke (1978), the Court ruled against the use of quotas in the admissions process. At the same time, the Court upheld the legality of affirmative action.

Rehnquist Court (1986-2005)

court was one of judicial restraint but did strike down congressional acts that it felt infringed on states' rights. Landmark cases included: Planned Parenthood v. Casey, US v. Lopez, Printz v. US and Bush v. Gore.

Roberts Court (2005-present)

conservative court

judicial restraint

An approach to decision making in which judges play minimal policy-making roles and defer to legislatures whenever possible; favored by scholars and judges

judicial activism

An approach to decision making in which judges sometimes make bold policy decisions, even charting new constitutional ground; advocates of this emphasize that the courts may alleviate pressing needs left unet by the majoritarian political process

political questions

A doctrine developed by the federal courts and used as a means to avoid deciding some cases, principally those involving conflicts between the president and Congress; judges typically attempt to avoid deciding a case on the basis of the Constitution;

statutory construction

The judicial interpretation of an act of Congress. In some cases where statutory construction is an issue, Congress passes new legislation to clarify existing laws.

United States v. Nixon (1974)

The 1974 case in which the Supreme Court unanimously held that the doctrine of executive priveledge was implicit in the Constitution but could not be extended to protect documents relevant to criminal prosecutions

bureaucracy

According to Max Weber, a hierarchical authority structure that uses task specialization, operates on the merit principle, and behaves with impersonality; possesses task specialization and extensive rules

hierarchical authority structure

A basic characteristic of bureaucracy - a chain of command that is hierarchical; the top bureaucrat has ultimate control and authority flows from the top down.

task specialization (bureaucracy)

A basic characteristic of bureaucracy - a clear division of labor in which every individual has a specialized job.

extensive rules (bureaucracy)

A basic characteristic of bureaucracy - clearly written, well-established formal rules that all people in the organization follow.

merit principle (bureaucracy)

a basic characteristic of bureaucracy - The idea that hiring should be based on entrance exams and promotion ratings to produce administration by people with talent and skill.

Myths of Federal Bureaucracy

Americans dislike bureaucrats (actually support them and the treatment from them), bureaucracies are growing bigger each years (actually has been shrinking, but the government employee number is expanding), most federal buraucracts work in DC (actually most work in other countries or US territories), and bureaucracies are inefficient, ineffective, and always mixed with red tape (actually it is a simple way of organizing people to perform work

patronage

One of the key inducements used by party machines. A patronage job, promotion, or contract is one that is given for political reasons rather than for merit or competence alone; used to be used, now it is the merit principle

pendleton civil service act

Passed in 1883, an Act that created a federal civil service so that hiring and promotion would be based on merit rather than patronage.

civil service

a body of government employees who are hired and promoted through a system based on the merit principle and the desire to create a nonpartisan government service

Hatch Act

A federal law passed by Congress in 1939 to restrict political activities by federal workers. The law prevents federal employees while on duty from taking an active part in party politics or campaigns and also bars federal employees from running for public office as a candidate of a political party.

Office of Personnel Management (OPM)

The office in charge of hiring for most agencies of the federal government, using elaborate rules in the process; president appoints the director and must be Senate approved

GS Rating

"General Schedule"; A schedule for federal employees, ranging from GS 1 to GS 18, by which salaries can be keyed to rating and experience.

senior executive service

An elite cadre of about 9,000 federal government managers at the top of the civil service system; have a GS Rating of 16-18; "cream of the crop"

Plum Book

a publication that lists the top jobs in the bureaucracy to which the president will appoint people through the patronage system

types of federal agencies

Cabinet departments, independent executive agencies, independent regulatory agencies, government corporations, presidential commissions.

Federal Revision Board (FRB)

an independent regulatory agency; governs banks and supply of money and interest rates

National Labor Relations Board (NLRB)

an independent agency of the United States government charged with mediating disputes between management and labor unions

Federal Communications Commission (FCC)

An independent federal agency that regulates interstate and international communication by radio, television, telephone, telegraph, cable, and satellite.

Federal Trade Commission (FTC)

an independent federal agency empowered to prevent persons or corporations from using unfair methods of competition in commerce

Securities and Exchange Commission (SEC)

The independent agency of the U.S. government that oversees U.S. financial markets and accounting standard-setting bodies (stock market police)

government corporations

A government organization that, like business corporations, provides a service that could be provided by the private sector and typically charges for its services. The U.S. Postal Service is an example; are like private corporations because they provide a service that could be handled by the private sector and they typically charge for their services (but cheaper)

independent executive agencies

The government agencies not accounted for by cabinet departments, independent regulatory commissions, and government corporations. Administrators are typically appointed by the president and serve at the president's pleasure; EX: NASA, General Service Administration, and the National Science Foundation

policy implementation

the stage of policymaking between the establishment of a policy and the consequences of the policy for the people whom it affects. It involves translating the goals and objectives of a policy into an operating, ongoing program; most are implemented by state and local governments; broad congressional policy can be difficult for the bureaucracy to implement

minimum elements of policy implementation

creation of a new agency or assignment of a new responsibility to an old agency, translation of policy goals into operational rules and development of guidelines for the program, and the coordination of resources and personnel to achieve intended goals

standard operating procedure (SOP)

procedures for everyday decision making enable bureaucrats to bring efficiency and uniformity to the running of complex organizations; uniformity promotes fairness and makes personnel interchangeable; advantages include establishing standard rules (saves time), bringing uniformity to complex organizations, and enhancing employee training and performance

administrative discretion

The authority of administrative actors to select among various responses to a given problem; is greatest when routines, or standard operating procedures, do not fit a case; use depends on their dispositions toward the policies and rules they administer

bureaucratic fragmentation

to respond to the proliferation of constituents bureaucracies become fragmented and specialized; hurts policy implementation

street-level bureaucrats

A phrase referring to those bureaucrats who are in constant contact with the public and have considerable administrative discretion.

regulation

the use of governmental authority to control or change some practice in the private sector; Congress details goals to be achieved but permits agencies to sketch out regulatory means; agency must apply and enforce its guidelines; all regulatory policies are created to achieve a desireable social goal; includes 2 types: command-and-control policy and the incentive system; critics claim it raises prices, hurts the US competetive position abroad, and fails to work well

command-and-control policy

The typical system of regulation whereby government tells business how to reach certain goals, checks that these commands are followed, and punishes offenders; many argue this is the best type of regulation

incentive system

An alternative to command-and-control, with market-like strategies such as rewards used to manage public policy; groups trade with each other; EX: levey a high tax on firms with excessive work injuries

deregulation

The lifting of government restrictions on business, industry, and professional activities; critics claim it isn't in the nation's best interest because it contributes to national debt

executive order

regulations originating with the executive branch; they are one method presidents use to control the bureaucracy; agencies can push back (interest groups is one way)

ways the president can control the bureaucracy

appoint the right people to head the agency, issue orders (executive orders), alter an agency's budget (OMB threats and Congressional appropriation), and reorganize an agency

ways congress can control the bureaucracy

influence the appointment of agency heads (Senate approval), alter an agency's budget (too much = responsive agency), hold hearings (oversight), and rewrite legislation to make it more detailed

limitation riders

Amendments, attached to appropriations bills, which forbid an agency to spend any of the money appropriated on activities specified by Congress.

iron triangle

also known as subgovernments; they consist of interest groups, government agenies, and congressional committees and subcommittees that have a mutually dependent, mutually advantageous relationship; they dominate some areas of domestic policymaking; most prominant = environmental protection