inferior courts or lower courts are allowed by the Constitution.
The Judiciary Act created district courts in 1789.
Congress created courts of appeal and specialized courts.
The judicial process is aided by the structure of the federal court system.
80 percent of federal cases are handled by district courts.
There are at least one federal judicial district in each state.
Federal crimes, civil suits involving federal laws, bankruptcy proceedings, admiralty and maritime cases, and immigration cases are all heard in the district court.
United States attorneys are appointed by the president and confirmed by the Senate.
They bring cases to the district courts.
Congress established the courts of appeal in 1891.
The intermediate level of appeal was created before the Supreme Court.
A Supreme Court Justice is assigned to act as liaison between the 13 courts of appeal.
The district courts and special courts have to be reviewed by these courts.
They review and enforce decisions of federal regulatory agencies.
The Supreme Court is the final court of appeals and will be a separate topic later in the chapter.
The appointment of federal justices is an example of the relationship between government branches and institutions.
The legislative and executive branches are involved in the process of selecting federal justices.
The American Bar Association gives their input.
Sometimes the process gets involved in political controversy.
The Senate must approve all federal judgeships.
The tradition of senatorial courtesy, the approval of the senators from the state in which the judge comes, has been part of the appointment process.
Supreme Court justice nominations do not apply to this courtesy.
Once nominated, the judicial candidate must appear before the Senate Judiciary Committee and be given a complete background check by the Department of Justice.
Lower court justices are usually not picked by the president.
They are the recommendations of other officials.
Many lower court judgeships are given as a result of prior political support of the president or political party.
Over 90 percent of lower federal court judges have been appointed by the president from his own political party.
Women, African-Americans, and Hispanics are some of the minority judges appointed.
The president can make a recess appointment when the Senate doesn't act on a presidential nominee.
The Senate confirmation process only lasts for the remainder of the session.
This process was used by President Clinton, President George W. Bush, and President Barak Obama.
The selection of Supreme Court justices has become more important because of the consideration of judicial ideology.
Issues such as constitutional precedent, judicial activism, legal writings, and past judicial decisions come under scrutiny when a Supreme Court nominee appears before the Senate Judiciary Committee.
Other issues such as feelings of interest groups, public opinion, media opinion, and ethical and moral private actions of the nominee have been part of the selection process.
Let's take a look at four recent nominees.
Robert Bork was nominated by President Reagan when Justice Lewis Powell left the Court.
When Nixon fired Attorney General Richardson, Bork was an assistant attorney general in the Justice Department.
Nixon ordered Bork to fire the special prosecutor who was investigating the Watergate break-in.
Bork believed in judicial restraint.
Many of his writings were questioned, as well as his views regarding minorities and affirmative action.
He was turned down by the Senate.
The term "Borked" was used after his defeat.
It refers to a presidential appointment who is not approved by the senate because of ideological reasons.
Reagan nominated Douglas Ginsburg.
Conflict of interest issues and allegations that Ginsburg had used marijuana when he was a professor surfaced under intense Senate questioning.
Reagan withdrew his nomination and the Senate unanimously approved Anthony Kennedy.
Clarence Thomas was nominated by President Bush to replace Thurgood Marshall, who was the first African-American Justice.
When the Judiciary Committee questioned both Thomas and Hill, the actions of the male-dominated committee brought national attention.
Thomas was confirmed by a narrow margin.
There is a conflict between the president's authority to nominate and the responsibility of the Senate to approve the nominee, which was brought to the forefront by the confirmation process.
The committee's partisanship as well as the leaks leading to Hill's testimony added to the controversy.
Clinton tried to depoliticize the process with his first two nominees, Ruth Bader Ginsburg and Stephen Breyer.
Both nominees were approved by the Senate.
The makeup of the Supreme Court changed during the second term of George W. Bush.
O'Connor was the first female to be appointed to the Court.
Bush nominated John G. Roberts, Jr. to replace her.
When Rehnquest was an associate justice, Judge Roberts clerked for him.
Roberts served on the U.S. Court of Appeals.
He argued 39 cases before the Supreme Court.
Roberts said he relied heavily on precedent in determining the outcome of cases that came before him.
O'Connor's replacement was left vacant until Roberts was confirmed after the death of Chief Justice William Rehnquist.
The Senate voted to confirm Roberts as the 17th Chief Justice of the Supreme Court.
John Marshall was the youngest Chief Justice.
Samuel Alito was confirmed by the Senate as Bush's nominee to replace O'Connor.
Judicial restraint and conservative activism ended after the death of William Rehnquist.
Rehnquist's legacy will be far reaching.
The Court was turned to the right by decisions in federalism and the rights of the accused.
The legacy of O'Connor as a swing vote on the Court was significant.
Justice David Souter retired in 2009.
President Obama nominated the first Hispanic-American judge to the Supreme Court.
Elena Kagan was appointed to the court by the president.
The Supreme Court only chooses between 75 and 100 cases each session from state courts, courts of appeals, and district courts.
Critics claim that the limited number of cases limits the Court's ability to make public policy.
The Supreme Court's docket is taken up by a combination of appeals cases ranging from the legality of the death penalty to copyright violation.
Peter Irons documented the process for a case to reach the court in his book May It Please the Court.
Audiotapes of the oral arguments were released for the first time after Irons interviewed attorneys who argued landmark cases.
The controversy surrounding the release of the book and tapes brought to light the question of whether television should be allowed at Supreme Court sessions as they are in the Congress.
The Court released audiotapes for the first time in 2000 after the disputed 2000 presidential election and the legal challenges that followed.
The tapes were played on the Internet.
They continued this practice when there was a case that evoked a large amount of public interest, such as the University of Michigan affirmative action case and the McCain-Feingold campaign finance law case.
The process of getting a writ of certiorari is described by Irons.
If a court made a decision that conflicts with precedent.
If a court comes up with a new question.
One court of appeals may have made a decision that conflicts with another.
There are other inconsistencies in the courts of different states.
There could be a split decision in the court of appeals.
The transcript of the case that has been appealed is sent to the Supreme Court if a writ is granted.
Lawyers who are arguing for the case must submit their written arguments to the court.
The briefs must be sent to the court within a specified period of time, and must be on a certain color of paper.
The position of one side or the other may be supported by additional briefs.
Once the case has been placed on the docket, the lawyers are notified and begin preparing for oral arguments before the Court.
The justices grilled attorneys for 30 minutes.
The government is represented in cases by the Solicitor General.
These arguments give the public an insight into the legal and constitutional issues of the case.
The justices meet in conference after the case is heard.
A majority of the justices have an opinion on the outcome of the appeal.
Once a majority is established, the Chief Justice assigns a justice to write the majority decision.
If the majority of the justices disagree with certain parts of the majority opinion, they may write concurring opinions.
The decision is made months after the case has been decided.
Sometimes the decision is read by the Chief Justice.
Sometimes a decision without explanation is handed down.
The decision becomes public policy once it is handed down.
The job of implementing the decision may be done by the executive branch, legislature, or regulatory agencies.
One of the most far-reaching cases was the case of Roe v Wade, which invalidated a number of state laws.
A number of cases tried to change the doctrine.
The number of cases decided decreased during the Rehnquist years, which shows the restraint of that Court in tampering with Court precedent.
People convicted of a crime can use the writ of habeas corpus to appeal.
Criminals appeal their cases to the federal courts because they claim their rights were violated procedurally.
The Supreme Court rejected the appeal of a Texas man on death row who claimed that he had new evidence that proved his innocence.
The Court sent a clear message to other states that they should handle these appeals after they ruled that the writ was not in their jurisdiction.
The Marbury v Madison ruling, the Miranda decision, and the separation of church and state have all had an impact on public policy.
By looking at the history of the Court, you will be able to see how various chief justices contribute to the importance of the Court in the public policy arena.
The young Supreme Court was set up by John Marshall.
Marshall had to rule in the Marbury case that the Judiciary Act of 1789 was unconstitutional because of the issue of federal judgeships.
The case centered around the arguments made by William Marbury, who was appointed to a minor judgeship by John Adams at midnight.
The Supreme Court was asked to issue a writ of mandamus by Marbury after the Secretary of State refused to deliver the commission.
The argument was made directly to the Supreme Court, using the route of original jurisdiction prescribed by the Judiciary Act.
Marshall, who was the Secretary of State under Adams, was in a real bind.
The Judiciary Act of 1789 was unconstitutional because it did not meet the requirements of original jurisdiction, even though Madison was wrong not to deliver the commission.
The Supreme Court began making important policy decisions after establishing the principle of judicial review.
The power of the Marshall Court was further strengthened by Gibbons v Ogden and other cases.
Chief Justice Earl Warren ran the court in 1952.
The Warren Court faced the question of determining the future of the civil rights movement.
Chief Justice Earl Warren convinced a split court that it was necessary to overturn the separate but equal doctrine.
The Court expanded the rights of the accused.
President Nixon had an opportunity to change the face of the court after Warren retired.
Burger is a conservative judge.
Harry Blackmun was appointed to the Court.
The court made rulings that upset the constructionists.
Even though it was more conservative than the Warren Court, it continued to break down segregation by ordering bussing.
Even though it limited aspects of the Miranda decision, it still recognized the rights of the accused.
The Burger Court will be remembered for the decision.
Blackmun was the Court's liberal spokesman.
Burger had to write the majority decision in United States v Nixon, which rejected Nixon's claim of executive privilege in not turning over the Watergate tapes.
William Rehnquist became the nation's 17th Chief Justice after Republican appointments.
The most conservative court in American history was this one.
Many of the Warren and Burger rulings were reversed.
When George Herbert Walker Bush was elected president in 1988, he added to the Court's conservative majority by appointing David Souter and Clarence Thomas.
Souter was a crucial swing vote in many cases because he took more of a middle-of-the-road approach.
Clinton had the chance to reverse the conservatism of the Court after he was elected in 1992.
The Supreme Court's future will be dependent on the outcome of the presidential elections and the formation of new coalitions.
It has become evident that a majority may vote one way on one issue and another way on another issue.
A number of landmark cases were decided by a slim majority during the 1995-1996, 1996-1997, and 1998-2001 terms.
The swing votes in many of the cases were Justices O'Connor and Kennedy.
The cases that overturned federal laws sent a signal that the federal government was using too much power.
The Supreme Court's majority has been more conservative in their decisions under Chief Justice John Roberts.
Along with Justice Alito, Justices Scalia and Thomas have tilted the court to the right.
The early days of the republic had arguments revolving around strict constructionist versus loose constructionist interpretation of the Constitution.
People are arguing about whether the Court should be activist or restrained.
Supreme Court nominees are asked about their judicial philosophy.
Critics of judicial activism argue that it is not the Court's responsibility to set policy in areas such as abortion, affirmative action, educational policy, and state criminal law.
Civil liberty decisions have created a society without a moral fiber.
The fact that judges are political appointees, are not directly accountable to the electorate, and hold life terms makes an activist court even more unpalatable to some.
There is still debate on whether the Supreme Court should reflect an activist position or judicial restraint.
Proponents of an activist court point to the responsibility of the justices to protect the rights of the accused and minority interests.
It took a long time for the doctrine of separate but equal to be overturned.
They show how many states try to circumvent court decisions with their own laws.
Proponents of judicial activism argue that the Supreme Court needs to fulfill its constitutional responsibility of maintaining checks and balances by being a watchdog.
Alexander Hamilton wrote in a book.
The interests of the government are not realized by a court that refuses to make important decisions.
They think that the federal system will be weakened by a court that allows state laws to go unquestioned.
Proponents of judicial restraint point to the fact that the Congress is in charge of making policy and the president is in charge of carrying it out.
They feel that the court should facilitate the process.
The Constitution does not justify decisions in areas where there are no references.
The right to an assisted suicide became an issue that advocates of judicial restraint urged the Court to reject on the grounds that it was not a federal issue to hear on appeal.
A group of physicians argued for the right to assisted suicide, but the Rehnquist Court ruled against them.
Those in favor of judicial restraint would like precedent to be the guiding light.
Those advocating restraint became activists when they declared congressional laws unconstitutional.
The case should go directly to the Supreme Court.
On appeal, most cases get to the Supreme Court.
The only situation that applies to the definition is choice A.
Choices B, C, E, and D are appeals from the state level.
When the president is ready to make the appointment, usually made according to party lines, the president informs and consults with the senators from the state of the appointee.
The confirmation process is usually helped by the senators.
The Senate Judiciary Committee makes the initial recommendation to the full Senate.
The committee was criticized during the Clarence Thomas hearings.
There is no requirement for the court to review the case if the conditions exist.
These examples have become the guiding principles of accepting cases for review.
Four justices have to agree to hear a case in order for Choice A to be correct.
If you didn't, you could eliminate choice A because it has no relation to the submission of additional briefs.
Choice C doesn't provide new information.
Briefs do not change information about a case, and Choice D is a false statement.
They argue about the case.
Burger's Court continued some of Warren's activism, but it was Nixon who wanted to modify the Court's direction.
The San Antonio case affirmed the state's right to fund schools even if poorer districts spent less money on their students.
Dred Scott said slaves were property.
The state has the right to allow separate but equal.
New Jersey was able to search without a warrant.
The principle of judicial restraint is upheld in these cases.
The weakest answer is Choice E since neither activists nor those favoring restraint would want a president to influence court decisions.
Critics of judicial activism favor a Supreme Court that acts as a watchdog over the other branches of government to ensure that they do not overstep their authority.
In cases such as Brown v Board of Education, Miranda v Arizona, and Mapp v Ohio, the Warren Court was used.
Judicial restraint consists of choices B, C, D, and E.
Historically, the Supreme Court has pursued a policy of judicial activism or judicial restraint depending on the philosophy of the justices.
To support your answer, use your definitions from (a).
Use the sample responses to help determine your score, and write your responses on separate pieces of paper.
Judicial activism is when the judicial branch overturns precedent and creates law.
The Supreme Court sets precedents for future cases.
Judicial restraint occurs when the judicial branch strengthens the law created by the legislative branch.
These ideas can be outlined in specific cases.
Civil rights, affirmative action, and rights of the accused are included.
In the case of Miranda v Arizona, law enforcement officials had to inform all suspected persons of their constitutional rights.
Miranda was thought to be a suspect in the abduction and rape of an 18-year-old girl.
Miranda was questioned for two hours after being selected in a police lineup.
He didn't know his rights against self-incrimination or the right to counsel during the time he was being questioned.
The Supreme Court decided in favor of Miranda.
The Warren Court decided this case to protect the rights of the defendants.
Affirmative action and reverse discrimination were dealt with in the case of the regents of the University of California.
Allan was rejected from the medical school of the University of California at Davis for two years after applying.
In place of his acceptance, students with lesser qualifications and minority background were being admitted.
UC-Davis was ordered to admit Bakke into their freshman class after the first decision.
The matter was taken to the Supreme Court by UC-Davis.
The second decision was in agreement with the first.
The majority opinion came from Chief Justice Burger and Justices Powell, Stewart, Rehnquist, and Stevens.
Proponents of affirmative action would have preferred the Burger Court to play a more activist role.
The Burger Court was more or less settled in a middle ground that allowed it to appease both sides of the spectrum.
The rights of the accused, affirmative action, or civil rights are dealt with in an activist case.
For describing a case that results in judicial restraint dealing with the rights of the accused, affirmative action, or civil rights, one point is earned.