Judicial Branch

Supreme Court, Circuit Courts, District Courts

  • 12th circuit - DC circuit.

  • 13th circuit - Not geography - based on subject matter like patents. Reviews decisions from any circuit.

How Judges are Chosen

  • Nomination process - broad parameters. 600 district, 200 appeals, 9 SCOTUS.

    • But they have life tenure so not every president does all.

  • Relies on recommendations from DOJ, FBI, Congress, sitting judges, and ABA.

  • Senatorial Courtesy - senators from state of vacancy makes decision. Same political party. President always agrees.

  • Selection Criteria

    • Experience

    • Political ideology

    • Party & personal loyalties

    • Ethnicity and gender

    • Judicial ideology - Restraint v. Activism

    • Judicial philosophy - Originalist v. Living Document

    • Confirmability

  • Nomination process

    • Selection

    • Vetting

    • Senate Judiciary Committee (or committee corresponding to position)

    • Senate Confirmation vote

SCOTUS Procedures

  • Writs of Certiorari

    • Request for lower courts to send up record of case for review

    • Harmonize conflicting decisions in the circuit courts

    • SCOTUS under no obligation to accept cases

    • 4/9 judges must vote to accept case, 5/9 grants a “stay”, 1/9 can grant a “stay” pending review by entire court

  • Law Clerks

    • 3-4 law clerks per court term, usually top of class at best schools

    • Legal research, draft questions

    • “Cert Pool” - certs are divided among justices, who give to clerks, who draft recommendation on acceptance

  • Briefs

    • Case on docket if accepted - petitioner writes a brief putting forth legal case → respondent files a brief (why they think they should win)

    • Then both make rebuttal response

    • Solicitor general can file a brief as Government

    • Amicus Curiae brief “friends of the court”

  • Oral Arguments

    • Hears oral arguments october-april

    • Open to public, 2 cases per day

      • Most time spent answering questions, not rehashing

      • Solicitor allotted time to share gov’t interest in case

      • Attorneys don’t have to use 30mins

  • Conference

    • Justice conference - only 2 per week

    • Shake hands, Chief Justice speaks first, then descending in order of seniority

    • Cast vote

    • Most senior justice in majority assigns a justice to write the majority opinion, same for dissent opinion

    • “Concurring opinion” - outcome not rationale

    • If tie vote, lower court’s decision still stands

  • Opinions

    • Handed down by last day of term, unanimous decisions first

    • Majority of justices must agree to the contents of the written opinion by “signing on”.

    • Then sent to “open court”.

  • Stare Decisis

    • Judges should defer to past interpretations - evenhanded, predictable

    • Precedent overruled by majority    

      • Kavanaugh - 7 prong test - quality of reasoning, consistency, workability, relying, age

    • Brown v Board → plessy v fergusen, gay marriage, Citizens United v FEC (strikedown limits on campaign corpo)

    • Superprecedents?