Judicial Branch Part 2
March 3 , 2014
March 10 – Foreign Policy
March 17 – Foreign Policy (NeoConservatism)
March 24 – South Park
March 31 – Exam Review
April 7 – Showdown
ESSAY EXTENSION: March 17 th
• American has a deeply legalistic political culture.
o It is a culture that loves to sue, due to the fact that the Constitution
provides no other alternatives.
o The Judiciary have the final say in terms of the application of law. It is a
selfreinforcing culture known as “total justice” – there is always a
responsible party that can be sued (it’s never your own fault, but someone
• Article III, Constitution
o Forms of Judiciary branch, but only created the Supreme Court (no state
or federal district courts).
o Congress will be empowered to make the federal courts system, which
happened in 1789:
• Judiciary Act of 1789
o Led to the creation of the federal court system.
• Judicial power
o Big One: They determine the interpretation of laws. Judicial Review is
the only one that can strike down a law – the Courts have the final say
(unlike Canada, where the government has the final say).
o Judges (activist judges – bringing to life/modifying interpretation;
restraint – looking at the constitution with a fundamentalist/literal view).
• Composed of 9 judges.
• A reactive body – cannot take a proactive stance on an issue like the executive or
• No videos or cameras allowed.
Hearing a Case
• 100 million legal actions in the US per year – majority (99%) are handled by the
State Court system (because they are criminal in nature).
• Reviews 8 000 cases.
o Filter: Determines whose case will be taken on. Usually filtered by legal
clerks. • Hears 80 per term (year).
o Address, rules, and takes the entire case on.
• Note distinction.
• “Rule of Four” – A case must meet the rule of four.
o Four judges must decide that they want to hear the case.
• Writ of Certiorari
o “To be informed”
o An official request from the Supreme Court to lower courts, asking for all
documentation from its previous hearings.
• Oral Arguments
o Approx. 1 hour per case – to present/plead position on the case. Judges
often interrupt and include input – even if they lawyer’s time is ticking
away. This is not where the judges make their decision – they have often
already made it. They pose questions to the lawyers and debate amongst
o Question, pontification
o Jam session
• Written briefs
o Documents after they have been sent to justices, and they make decisions.
1. Legitimate Controversy
• Reality, no abstract.
• Case must be based in reality – doesn’t deal with hypotheticals or act as an
• Actual or imminent harm.
• They case at hand must have an actual or imminent threat.
• Must be relevant. Must have an affect of some sort.
• Roe v. Wade
o Famous abortion case.
o Federal district judge ruled that the case was moot because the
woman had already had her baby, so what’s the point?
o Supreme Court says it is still relevant, because the term of a
pregnancy will always be shorter than the time it takes for a case to be
addressed by the courts.
1. Different Rulings
• Inferior decisions
• Detection dogs
2. Conflict with Supreme Court • If a ruling counters a Supreme Court decision.
• Executing children (capital punishment).
o Ruled admissible, but after another r