American Government and Organization

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American Government and Organization

• PS1301-164
• Wednesday, 22 October

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Outline

• Structure
• Power of the Courts Judicial Review
• Marbury v. Madison (1803)

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Marbury v. Madison

• In a separate case decided a week earlier,
  Marshall created the foundation of the Courts
  power.
• In Marbury, Marshall declared that Madison should
  have delivered the commission to Marbury, but
  then held that the section of the Judiciary Act
  of 1789 that gave the Supreme Court the power to
  issue writs of mandamus exceeded the authority
  allotted the Court under the Constitution, and
  was therefore null and void.
• Thus he was able to chastise the Jeffersonians
  and yet not create a situation in which a court
  order would be flouted.

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The Structure of the Federal Judiciary

• Only the Supreme Court is explicitly mentioned in
  the Constitution.
• nature of the judiciary beyond the Supreme Court
  deferred to Congress.
• Judiciary Act of 1789 - created the federal
  judiciary.

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The Structure of the Federal Judiciary

• The federal judiciary is organized as a
  three-layered pyramid.
• Base 94 district courts staffed by 632 justices.
• Every state has at least one district court the
  three largest states have four.
• These trial courts deal with three types of
  cases criminal, civil, and public law.

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The Structure of the Federal Judiciary

• Above the district courts are thirteen courts of
  appeals, administered by 179 judges, who
  generally sit in three-judge panels.
• Eleven separate geographic regions (circuits)
  cover the fifty states.
• A twelfth circuit is assigned to the District of
  Columbia.
• A thirteenth, called the United States Court of
  Appeals for the Federal Circuit, has a nationwide
  jurisdiction and deals mostly with federal
  policies.

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The Structure of the Federal Judiciary

• The Supreme Court is the court of final appeal.
• Under its appellate jurisdiction, the Court may
  hear cases appealed from the lower courts or
  directly from the highest state courts when an
  important constitutional question is in dispute.

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The Structure of the Federal Judiciary

• The Supreme Courts original jurisdiction (where
  it acts as the trial court) pertains to all cases
  affecting Ambassadors, other public Ministers
  and Consuls, and those in which a State shall be
  a party.
• In 200 years, the Court has heard only 160 cases
  under its original jurisdiction.

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Managing the Caseload Strategy and Tactics

• The federal courts system has a tremendous
  caseload.
• In 2001 the district courts handled approximately
  314,000 criminal and civil cases, and the appeals
  courts more than 57,000.
• The Supreme Court decides fewer than 100 cases
  annually.

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Managing the Caseload Strategy and Tactics

• Court greater discretion to choose the cases it
  reviews (since 1925).
• Litigants must file a writ of certiorari,
  requesting that the S.C. Court order a lower
  court to send it the records of the trial in
  question.

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Managing the Caseload Strategy and Tactics

• How does it determine which it will review? When
  to issue a writ?
• Rule of Four -- four of the nine justices must
  favor hearing a case for certiorari to be
  granted.
• Justices can hire up to four clerks to help them
  assess the requests for review.

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Which Cases Reach the Supreme Court ?

• a subjective process, but certain factor increase
  a cases chances
• when two lower courts are in disagreement
• when a lower courts ruling conflicts with an
  existing Supreme Court ruling
• when the highest state court holds a federal law
  invalid, or upholds a state law that has been
  challenged as violating a federal law
• when a federal court holds an act of Congress
  unconstitutional

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Types of court decisions

• opinion
• - unanimous
• - majority
• - concurring
• - dissenting
• affirm
• reverse
• remand

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Ways in Which Courts Make Policy

• judicial review the power of the courts to
  declare the acts of governmental officials
  unconstitutional
• judicial activism taking a broad view of the
  Constitution and using power to direct policy
  towards a desired goal
• judicial restraint rarely using judicial review
  and limiting judicial action in the policy
  process

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Checks on the Judiciary an unelected branch

• Executive Checks
• - judicial implementation
• - appointments
• Legislative Checks
• - Appropriation of funds to carry out rulings
• - Constitutional amendments
• - Amending laws to overturn courts rulings
• Public Opinion
• - Sometimes can ignore decisions
• - pressure for non-enforcement
• - influence judicial opinions
• Judicial Self-Restraint
• - narrow focus of judicial questions
• - stare decisis
• - tradition of restraint

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TEXAS STATE COURTS
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Selection of Judges

• Partisan Elections
• Non-partisan elections
• Merit and retention
• Appointment
• http//www.pbs.org/wgbh/pages/frontline/shows/just
  ice/etc/video.html

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Judicial Elections in Texas

• Code of Judicial Conduct
• permits judges and candidates for judicial office
  to personally solicit funds for appropriate
  campaign expenses.
• Under a 2003 reform, Texas politicians and
  political committees had to report this cash on
  hand for the first time on January 15, 2004.

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Statewide Officeholders
Office Candidate Name Cash on Hand 12/31/2003 Faces '04  Election?
Governor Rick Perry 3,306,720   
Lt. Governor David H. Dewhurst 411,974   
Attorney General Greg Abbott 1,334,334   
Comptroller Carole  Strayhorn 2,770,387   
Supreme Court Thomas R. Phillips 17   
Supreme Court Jesse W. Wainwright 73,134   
Supreme Court Michael H. Schneider 110,216   
Supreme Court Steven W. Smith 32,187  Yes
Supreme Court Wallace B. Jefferson 49,145   
Supreme Court Harriet O'Neill 232,750  Yes
Supreme Court Priscilla Owen 56,557   
Supreme Court Nathan Hecht 42,006   
Supreme Court Scott Brister 153,282  Yes
    Total 9,892,988 7
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Texas's code of judicial conduct, judicial
candidates shall not

• Make pledges or promises of conduct in office
  regarding pending or impending cases,
• Knowingly or recklessly misrepresent the
  identity, qualifications, present position, or
  other fact concerning themselves or their
  opponents.
• Publicly comment about pending or impending
  proceedings
• U.S. Supreme Court's decision in Republican Party
  of Minnesota v. White, 536 U.S. 765 (2002),

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1995 Judicial Campaign Fairness Act

• Contributions
• Supreme court, criminal appeals 5,000 limit
• All other judicial candidates 1,000-5,000
  (population dependent)
• Total amount accepted from PACs
• Sc, cca accept up to 300,000 total
• Court of appeal 52,5000-75,000 total
• Voluntary expenditure limits

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Reforms

• Problems?
• Move to appointive system?

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Recent Reforms

• 1995 The Judicial Campaign Fairness Act (SB 94)
• 2001 HB 59 Secretary of State can distribute
  vote information guide for judicial elections.

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Failed Reforms

• Move to appointive or appoint/vote to retain
  system
• 1995 (passed senate, failed house)
• 1997 stalled in senate (nonpartisan elections,
  appoint appellate judges)
• 1999 appt. retention died in house committee
• 2001 gubernatorial appointment, approved by
  committee in both houses but session ended
• 2003 similar to 2001