Module 4: Supreme Court

The Supreme Court is a very __ institution.

political

EXAM: What are the requirements to become a Supreme Court Justice?

• ALL federal judges are nominated vy the president

  • typically the president will nominate justices of their political party

  • presidents don’t always get what they expected

    • because judges can change over time

• confirmed by majority (50% +1) of Senate

• serve for life

  • the current justices’ desire to retire can be based on who is the president currently and what justice will they nominate after

When does the President’s impact on the Supreme Court become known?

Until after the president leaves office.

• Justices a president nominates could last after president leave office or after they died

EXAM: What did the founding fathers believed to be the weakest branch of the national government?

Judiciary

• Alexander Hamilton believed judiciary lacked purse (Congress) and sword (President), in addition to enforce their decision

EXAM: What was the most trusted institution in American government?

Supreme Court (even though it’s the least democratic)

• EXAM: trust levels has declined significantly in the recent years

EXAM: The Supreme Court is a part of a ___ ___ federal court system.

three tiered

• EXAM: the only court created by the Constitution

• EXAM: lower courts were created by Congress in the Judiciary Act of 1789

EXAM: Jurisdiction

authority of a court to hear and decide certain cases

EXAM: What are Original Courts?

also called trial courts

• interested in “the facts“ of a case and render a decision or verdict

• first court to hear and decide a case

• US District Courts + State Trial Courts play this role

EXAM: What are Appellate Courts?

also called review courts

• interested in application of the law

• hears the case after it has been argued in a lower court

• US Court of Appeals and state appeals courts/state Supreme Courts are the primary appeals courts

  • with the US Supreme Court as the final appeals court

EXAM: How do president’s decide who to nominate for the Supreme Court

• EXAM: policy preferences (the most important criteria)

  • president wants to nominate a justice who views the world/law the way they do

• Is the Justice competent and ethical?

• Political Reward/Support

  • nominating certain people could convince voters to vote for them when they decide to re-elect

What are Judicial Philosophies?

How justices view their role as a justice

The 2 Judicial Philosophies

• Judicial Restraint

• Judicial Activism

EXAM: Judicial Restraint

• justices believe courts should defer to popularly elected institutions of government

• basic idea: republic people elected representatives to make laws for society

  • justices should strike down these laws as little and as narrow as possible

• stresses majority rule

EXAM: Judicial Activism

• justices believe courts should be a tool to protect oppressed minorities from majoritarian tyranny

• stresses minority rights

Four Steps Justices Take to Decide a Case

1) Discussion List Drafted

2) Written Briefs Filed

3) Oral Arguments

4) Judicial Conference

EXAM: What happens during the drafting of the discussion list at the Supreme Court?

• EXAM: Chief Justice controls agenda of court through the discussion list

  • EXAM: That’s why the Chief Justice is more powerful than the other justices

• law clerks shift through cases that the justices may hear

• Chief can accept suggestions from other justices who want to hear a case

  • but is not required to

• Justices discuss merits of each case a vote whether they hear or not hear a case

  • EXAM: Rule of 4: if at least 4 justices want to hear a case, it’s accepted for Supreme Court review

• EXAM: If accepted, Court issues a Writ of Certiorari

  • request to the lower court to submit to the Supreme Court a record of the case

EXAM: What happens when Written Brief are filed in the Supreme Court?

• Written Briefs are filed by the attorney for each side

• EXAM: Amicus Briefs

  • 80% of cases

  • briefs that are files by interest parties

    • usually interest groups that attempt to lobby the court

EXAM: What happens during Oral Arguments in the Supreme Court?

• only public part of the process

• EXAM: typically, each side is given 30 minutes to summarize their case to Supreme Court (time can be extended if needed)

EXAM: What happens during Judicial Conference in the Supreme Court?

• most private part of the process

• Justices meet alone and begin discussing case

  • Chief Justice speaks first → order of seniority → Junior Justice speaks last

• non-binding vote (can later change vote)

  • Junior Justice votes first → Chief Justice votes last

• GOAL: to render a DECISION and decide who will render OPINIONS of court

What is the Decision in the Judicial Conference?

who won and by what margin

• most common decision is 9 to 0 (45% of cases)

EXAM: In the Decision in the Judicial Conference, does the margin count/change legality of the law?

NO

State Decisis vs Precedents in the Decision in the Judicial Conference

State Decisis

• doctrine meaning let the decision stand

  • judges should follow previously decided cases that are similar to the one under consideration

Precedents

• previously decided court cases on an issue similar to the one being considered

EXAM: What are the Opinions of the Court in the Judicial Conference?

• legal reasoning for the decision

• Chief Justice on winning side → controls opinion of the court

  • he can write it or assign the opinion to another justice on the wining side

• Chief Justice on losing side → senior member of winning side controls the opinion of the court

EXAM: What are the 5 opinions/legal reasoning?

1) Unanimous: all justices agree with legal reasoning

2) EXAM: Majority: 5 to 8 justices agree with legal reasoning

3) Plurality: 2 to 4 justices agree with legal reasoning + it’s the most popular opinion of the winning side

4) EXAM: Concurring: Justices who agree with the decision, but have a different legal reasoning

5) EXAM: Dissenting: Opinions of the losing side

EXAM: How many justices are on the Supreme Court?

9

EXAM: What is Judicial Review?

The authority of the Supreme Court to nullify acts of government by declaring them unconstitutional.

• power is not enumerated/specifically granted to the Supreme Court in the Constitution

• Supreme Court asserted this power for itself in the landmark case of Marbury v Madison

• Marshall declared Section 13 of the Judiciary Act of 1789 unconstitutional establishing the doctrine of Judicial Review

  • Marshall ruled that the Constitution is superior to ordinary acts of the Congress