Judicial review

3
The Jurisdiction of the
Federal Courts
■ Jurisdiction - the authority of the
courts to hear certain cases.
■ Under the Constitution, the federal
courts have jurisdiction in cases
involving federal law, treaties, and
the interpretation of the
Constitution.

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Federal Courts
■ Original Jurisdiction - lower courts hear
cases for the first time (district court)
■ trial with evidence, and jury option
■ Appellate Jurisdiction - courts hear
reviews or appeals of decisions from
lower courts (Court of Appeals and
Supreme Court)
■ Concurrent Jurisdiction - cases to be
tried in either federal or state courts

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Federal Courts
■ Federal-question cases – Cases
concerning the Constitution, federal
laws, or treaties
■ Diversity cases – Cases involving
citizens of different states who can
bring suit in federal courts
Copyright © 2013 Cengage

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Figure 16.4 The Jurisdiction of the
Federal Courts

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The Structure of the Federal
Courts
■ Constitutional Courts - created by
Congress under Article III of the
Constitution
■ Lower Federal Courts
• Constitutional Courts
■ District courts
■ Courts of appeal
• Legislative Court
■ Court of Military Appeals & territorial courts

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Map 16.1 U.S. District and Appellate Courts
Note: Washington, D.C., is in a separate court. Puerto Rico is in the first circuit; the Virgin Islands are in
the third; Guam and the Northern Mariana Islands are in the ninth. The Court of Appeals for the Federal
Circuit, located in Washington, D.C., is a Title 3 court that hears appeals regarding patents, trademarks,
international trade, government contracts, and from civil servants who claim they were unjustly
discharged.
!
Source: Administrative Office of the United States Courts (January 1983).

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Structure of the Judicial System
■ Supreme Court - the only court actually
created directly by the Constitution
■ Highest Court, Final Authority
■ Has Original and Appellate
Jurisdiction
■ 1869 - Current Size Set (9 Judges, 1
Chief Justice, 8 Associate)
■ Nominated by President, Confirmed
by Senate

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Judicial Selection
■ Lower Courts
■ Large number of appointments
■ Handled by Justice Department and
White House Staff
■ Senatorial Courtesy - allowing
individual senators who represent
the state to approve/disapprove
nominees to District Court

11
Judicial Selection
■ Supreme Court
■ Selecting Judges
• Party affiliation
• Judicial Philosophy - ideology
• Race, gender, religion, region
• Experience - District, Appellate, State
• Acceptability (Bar Association, Interest
Groups, Justices)
• The “Litmus Test” - test of ideological purity
using controversial issue like abortion

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The Supreme Court in Action
■ Accepting Cases
■ Rule of 4
■ Brief Orders - returned to lower court
for reconsideration
■ Writ of Certiorari - an order by the
Court directing lower court to send up
the records for review
■ Certificate - lower court askes the
Supreme Court about rule of law or
procedures in specific cases

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The Supreme Court in Action
■ Amicus curiae - friend of the court (filed
by interested parties to support or
reject arguments of case)
■ Majority opinion - majority of justices
agree on the decision and its reasons
■ Concurring opinion - a justice agrees
with the majority opinion but not the
reasoning
■ Dissenting opinion - a justice who
disagrees with the majority opinion

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Getting to Court
■ In forma pauperis - poor person free
of charge
■ Fee Shifting - plaintiff can collect legal
fees from defendant if loses
■ Standing - entitled to bring to court
■ Class Action Suits - case on behalf of
many persons under similar
circumstances

15
The U.S. Supreme Court Justices in 2010. Front row: Justices
Clarence Thomas and Antonin Scalia, Chief Justice John Roberts,
Justices Anthony Kennedy and Ruth Bader Ginsburg; second row:
Justices Sonia Sotomayor, Samuel Alito, and Elena Kagan.
TIM SLOAN/AFP/Getty Images

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Judicial Review
■ Defined: the power of the courts to
declare laws unconstitutional
■ Over 160 federal laws have been
declared unconstitutional
■ The federal courts’ chief weapon in
the American government system of
checks and balances

17
Two Approaches to
Judicial Review
!
■ Judicial Restraint Approach – judges
should decide cases strictly on the basis of
the language of the Constitution
■ Activist Approach – judges should
discern the general principles underlying
the Constitution and apply them to
modern circumstances

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The Power of the Federal Courts
■ The Power to Make
Policy
• Stare decisis (let the
decision stand)
• Political question
(avoids)
• Remedy (activism)
The activism of federal courts is
exemplified by the sweeping
orders they have issued to
correct such problems as
overcrowded prisons, p. 458.
Alex Webb/Magnum Photos

19
Courts as Policymakers
■ New Deal Era
■ Supreme Court struck down laws
designed to end the Great
Depression
■ FDR proposed “court packing” -
increase the number of justices
■ Did not pass Congress but placed
enough pressure on Court to change
voting (“switch in time to save nine”)

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Warren Court (1953-1969)
■ Termed “most liberal court ever”
■ Active in civil rights and liberties
■ Brown v BOE 1954 (desegregation)
■ Gideon v Wainwright 1963 (attorney)
■ Miranda v Arizona 1966 (read rights
at time of arrest)

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The Burger Court (1969-1986)
■ More conservative ideology,
narrowing the rights of defendants
■ Roe v Wade 1973 (abortion)
■ US v Nixon 1974 (executive
privilege did not apply)
■ Regents of University of CA v
Bakke 1978 (affirmative action
legal, but quotas not)

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Rehnquist and Roberts
Courts (1986-Present)
■ Conservative court continued to limit,
but not reverse defendants’ rights,
abortion, and affirmative action

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Checks on Judicial Power
■ Congress and the Courts
• Confirmations
• Impeachment
• Number of judges
• Jurisdiction
■ Public Opinion and the
Courts
Thurgood Marshall became
the first black Supreme Court
justice. As chief counsel for
the NAACP, Marshall argued
the 1954 Brown v. Board of
Education case in front of the
Supreme Court. He was
appointed to the Court in 1967
and served until 1991, p. 463.
Bettmann/Corbis

Judicial review

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