The Judicial Branch

1
The Judicial Branch

• Overview the Judicial branch is composed of
  layers. Each layer has a specific function and
  powers.
• The court system is a very powerful public policy
  institution. Determines what is and is not
  constitutional.
• Unelected and insulated from the public.

2
Overview Continued

• SC has the power to overturn legislation. These
  9 judges can thwart the ideas and determinations
  of 535 members of Congress with the stroke of a
  pen.
• Judicial branch was originally given authority
  only to interpret the constitutionality of
  legislation but have taken the power to create
  policy. That power is called Judicial Activism.

3
Judicial Activism

• Judicial Activism the interjection of personal
  values into judicial decisions.
• The judges in effect become unelected (and
  impossible to remove) legislators which usurps
  the authority given to the elected legislation.
  People lose their representative form of
  government.

4
Duties of the Courts

• The Supreme Court (SC) serves primarily (but not
  exclusively) as an appellate court.
• The Federal Courts of Appeal are the first layer
  of appeals courts.
• The District courts are the main federal trial
  courts.

5
The Supreme Court

• The SC is the most powerful court in the nation.
  Has the ability to overturn any other judicial
  decision and legislation. The buck stops here.
• Justices are appointed for life by the President
  and (supposedly) confirmed by the Senate. They
  remain justices until they chose and cannot be
  removed from office without cause.

6
The SC

• In theory Justices are apolitical, unbiased
  judges who disregard politics after their
  confirmation. In reality they are political
  officers of the least democratic branch of
  government. They regularly base their decisions
  on ideology and partisan beliefs. You dont
  really think that federal judges got their jobs
  by being apolitical did you?

7
SC

• These justices have so much influence on public
  policy (for years to come) that the nomination
  and confirmation process has become completely
  bogged down in political battles. Because SC
  justices typically are picked from Appeals Court
  judges these battles have extended to almost
  every federal judicial nomination.

8
Duties of SC

• Sc has discretion over which cases it hears
  (allows them to circumvent cases they do not wish
  to decide on.)
• Hear appeals from the Appeals Court and make
  decisions which become law and precedent that
  lower courts must follow.
• Have original jurisdiction over cases involving
  states, or foreign diplomats.

9
Decisions, Decisions...

• SC receives oral arguments and written briefs of
  the cases they accept. They gather in private
  sessions to discuss their ideas which become the
  basis of decisions. Majority rules in decisions.
• Opinions explain their decisions and guide lower
  courts on future decisions. Often times the
  minority (sometimes one) will give a dissenting
  opinion.

10
Supreme and other Courts

• The fact that the SC is most powerful court in
  the land does NOT mean the other levels are
  powerless.
• The District Courts (trial courts) hear the vast
  majority of cases and exercise wide discretion in
  judgments. Remember the 9th districts recent
  decision to disallow the Under God passage of the
  Pledge of Allegiance?

11
The Others

• The majority of District Court decisions do not
  get appealed to a higher court.
• This effectively gives them power over public
  policy and behaviors.
• The Federal Appeals court is the middle ground.
  They hear only appeals from the District Courts.
  Again, most of their decisions do not get
  appealed to SC.
• Main constraint is the law.

12
And the nominees are...

• Senate confirmation of nominations to the federal
  bench has become a purely partisan activity. All
  presumptions of discussing the merits of the
  nominee are gone. Ideology is the only thing
  that matters.
• Began with Robert Bork in 1987. He was rejected
  by a liberal Senate as being too conservative.
  Borking

13
Nominations continued

• The political games have created large numbers of
  perpetual vacancies on the federal bench.
• The Advice and Consent (Article II section II)
  gives the Senate the power to vote for or against
  a nomination. Current process is to keep it
  bottled up in committee to prevent a vote from
  being taken.

14
Conclusions

• Judges are supposed to be unbiased and
  unfettered by their personal ideology but reality
  is they are people with thoughts, feelings, and
  moralities. Is it possible to disconnect the
  fabric of our being to do a job.
• The best we can hope for with judges is to get
  someone who can display the least amount of bias
  possible.