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Carp Chapter 2 Notes: The Federal Judicial System

1) Historical Context
a) Under the Articles of Confederation, there was no separation of executive and
legislative powers
b) The Constitutional Convention + Article 3
i) Conflict between states rights advocates and the nationalists, was resolved by
a compromise found in Article 3, which states that judicial power shall be
vested in one Supreme Court and inferior Courts that Congress can create
c) The Judiciary Act of 1789
i) Still heated discussion between states rights advocates and nationalist
ii) This act set up a judicial system comprising a Supreme Court with a chief
justice and 5 associate judges; 3 circuit courts, each with 2 justices of the
Supreme Court and a district judge; and 13 district courts
iii) Here Congress created two sets of lower courts
2) The U.S. Supreme Court (SC)
a) Interprets federal legislation
b) Impact of Chief Justice Marshall
i) Marshall was a legendary chief justice, wrote almost half of all opinions
handed down in his time
ii) Marbury vs. Madison (1803)
(1) Here the court asserted its power to declare an act of Congress
(2) What happened: President John Adams nominated loyal federalists as
federal judges, and time ran out and 17 of the commissions were not
delivered before Jeffersons inauguration. Jefferson ordered his secretary
of state, James Madison, to abstain from delivering the remaining
commissions. Some of these nominees (Marbury), asked the SC to force
Madison to deliver their commissions on the basis of the SCs ability to
issue writs of mandamuscourt orders commanding a public official to
perform an official duty
(3) Marshall declared this section of the Judiciary Act of 1789
unconstitutional because it granted original jurisdiction to the SC in excess
of that specified in Article 3 of the Constitution
(4) Established judicial review ability to declare a law unconstitutional,
what sets us apart from other countries
iii) SC as a Policy Maker
(1) Derives from the fact that it interprets the law
(2) Good example is Plessy vs. Ferguson (1896)
(a) Homer Plessy (1/8th black man) protested a Louisiana state law by
refusing to move from the seat in the white car of a train
(b) The SC upheld the Louisiana statue, and thus the court established the
separate-but-equal policy that was to be in effect for about 60 years
(3) Brown vs. Board of Education (1954)

(a) Parents of black schoolchildren claimed that state laws permitting

segregation deprived them of equal protection of the laws under the
14th amendment
(b) SC ruled this as inherently unequal, established a policy of
desegregated public schools
(4) On average the SC decides, with signed opinions, 70-90 cases
(5) Deals with a very select set of policy issues
(6) SC has no self-starting devicethe justices must wait for problems to be
brought to them; there can be no judicial policymaking if there is no
iv) SC as a Final Arbiter
(1) The SC has both original and appellate jurisdiction, but is overwhelmingly
an appellate court because most of its time is devoted to reviewing
decisions of lower courts
(a) Original: court has the power to hear a case for the first time
(b) Appellate: a higher court has the authority to review cases originally
decided by a lower court
(2) Since 1925 a certiorari has allowed the SC to exercise discretion in
deciding which cases it should review. If review is granted, the SC issues a
writ of certiorari, which is an order to the lower court to send up a
complete record of the case. When the certiorari is denied, the decision of
the lower court stands
v) SC at Work
(1) Courts term is divided into sittings, each of which last ~2 weeks during
which the justices meet in open session; here they work behind close doors
and write opinions
(2) Oral Arguments
(a) Scheduled Mon-Wed during the sittings
(b) No jury is assembled and no witnesses are called. Instead, 2 opposing
attorneys present their arguments to the justices
(3) The Conference
(a) Occurs on Fridays proceeding the 2-week sittings; during sitting it
holds conferences on Wednesday afternoon and all day Friday
(b) Chief justice presides and offers an opinion first in each case, followed
by other justices in descending seniority
(c) Formal vote is usually unnecessary because each judge gives his
opinion while speaking
(4) Opinion Writing
(a) After a decision is reached in the conference, a justice is assigned to
write the Courts opinion. The chief justice, if voting with the majority,
writes the opinion or assigns it to another judge who voted with the
majority. When the chief justice votes with the minority, the most
senior justice in the majority makes the assignment
(b) Those who disagree with the opinion of the court are said to dissent,
these justices generally write opinions too

(c) Sometimes a justice may agree with the decision but have different
reasoning and write a concurring opinion
(d) An opinion labeled concurring and dissenting agrees with part of a
Court ruling but disagrees with other parts
(e) Per curiam opinion: unsigned, brief opinion used when the Court
accepts the case for review but gives it less than full treatment
3) The U.S. Court of Appeals
a) Circuit courts
b) The court of appeals in each of the 12 regional circuits are responsible for
reviewing cases appealed from federal district courts
c) The Review Function of the Courts of Appeals
i) Concentrate on statutory interpretation, administrative review, and error
correction in masses of routine adjudications
ii) Their docket depends on how many and what types of cases are appealed to
iii) Most cases originate in the federal district courts
iv) Also review the decisions of certain administrative agencies
v) Deal with both routine and highly important matters
vi) Can establish policy for society as a whole, not just for specific litigants
vii) Two purpose of review in the court of appeals
(1) Error correction COA monitors the performance of federal district
courts and federal agencies and supervises their application and
interpretation of national and state laws. Also settles disputes and enforces
national law
(2) Sorting out and developing those few cases worthy of SC review
d) The COA as Policymakers
i) The scope of the COA policymaking role takes on significant importance
because they are the court of last resort in the vast majority of cases
ii) COA ruled in 1996 in Hopwood v. Texas that race may not be used as a factor
in law school admissions. This issue was later tackled by the SC in 2003
iii) Because each COA covers a specific region, they are likely to make policy on
a regional basis
e) The COA at Work
i) Screening
(1) The docket may be reduced by consolidating similar cases into single
(2) In 2010, 75% of cases were disposed of without oral arguments
ii) 3 Judge Panels
(1) Cases given full treatment are usually heard by 3-judge panels
(2) A decision reached by a 3 judge panel does not always reflect the views of
the majority
iii) En Banc Proceedings
(1) When a 3 judge panel has conflict, federal statutes provide for an en banc
procedure, in which all the circuits judges sit together on a panel and
decide a case
(2) Normally consist of 11 judges

iv) Oral Argument

(1) Cases that are screened and havent been settled by litigants are scheduled
for oral arguments
v) The Decision
(1) After oral arguments, judges confer briefly, and if in agreement, announce
their decision quickly. Sometimes takes a long time
(2) In recent years, there has been a decrease in the number of published
opinions by the COA
4) U.S. District Courts
a) Trial courts
b) Most federal cases never move beyond the trial courts
c) Current Organization of the District Courts
i) Congress has created new district courts as the country has evolved
ii) Size and population vary greatly from district to district
iii) Currently 678 trial judges
d) The District Courts as Trial Courts
i) Congress gave them original jurisdiction over virtually all cases
ii) Only federal courts in which attorneys examine and cross examine witnesses,
factual record is achieved at this level
iii) Task of determining the facts falls to the jury
iv) Congress guarantees the right to a jury trial in criminal cases, but it can be
waived in which case the judge becomes the arbiter of questions of fact as
well as matters of law. Such trials are bench trials
v) 2 types of juries associated with trial courts
(1) Grand jury: group convened to determine whether probable cause exists to
believe that a person has committed the federal crime of which hes been
accused of
(2) Petit jurors are chosen at random to determine if a defendant in a civil trial
has liability or whether a defendant is guilty or not guilty
vi) There are 12 jurors in criminal cases, usually 6 in civil
e) Norm Enforcement
i) Trial courts are viewed as engaging primarily in norm enforcement
ii) Closely tied to the administration of justice
iii) Aimed at the particular case at hand
f) Policymaking
i) Intended to be guideposts for future actions
ii) When guidelines are not well established, district judges have a great deal of
discretion to set policy
g) 3 Judge District Courts
i) Occasionally cases are heard before a 3 judge district court, including at least
one judge from the federal district court and one from the COA
ii) Appeals of these courts go directly to the SC
iii) Roe vs. Wade originally was heard by a 3 judge court
5) Constitutional Courts, Legislative Courts, and Courts of Specialized Jurisdiction
a) Courts established under Article 3 are known as constitutional courts (CC, handle
the bulk of litigation); those under Article 1 are legislative courts (LC)

b) SC, COA, and federal district courts are constitutional courts

c) Administrative Law Judge (ALJ): employees of federal agencies who function
much like trial judges in the executive branch
d) Legislative courts often have administrative and quasi-legislative as well as
judicial duties. Another difference is that they are often created to help administer
a specific congressional statute
e) CC judges serve during a period of good behavior, or what amounts to life tenure
and are protected from salary reductions
f) LC judges have no such protections
6) Administrative and Staff Support for the Federal Judiciary
a) Magistrate judges
i) Work for a particular court
ii) Appointed by the judges of the district court for 8 year terms, but can be
removed for good cause
iii) MJ duties vary from district to district
iv) District judges delegate their responsibilities
b) Law Clerks
i) Duties vary according to the preferences of
ii) At the appellate level, the law clerk becomes involved in a case first by
researching the issues of law and facts presented by an appeal
iii) Play an integral part in the screening process for COA
iv) May assist judges in preparing for oral arguments
v) Help draft preliminary opinions/edit and checks the opinions written by the
vi) SC law clerks play a huge rule in helping judges decide which cases should be
heard and help draft opinions
c) Administrative Office of the U.S. Courts
i) The judiciarys housekeeping agency
ii) Distributes supplies, maintains records, books buildings
iii) Acts as liaison for both the federal judicial system and the Judicial Conference
d) The Federal Judicial Center
i) Conducts research on the federal courts
ii) Makes recommendations to improve the administration and management of
federal courts
iii) Develops educational and training programs for personnel of the judicial
7) Federal Court Workload
i) Increase in civil and criminal cases in recent years for U.S. district courts
ii) For COA, increase in 2007-2008 followed by steady declines in appeals. 75%
came from
iii) SC only argues ~80 cases