THE JUDICIAL BRANCH: STRUCTURE AND PROCESSJudicial Review as a “Byproduct”The Federal Compromise Produces a Dual Court SystemThe Federal Court SystemSlide 5The Federal Court System (cont.)The Dual Court System (Resulting from the Federal Compromise)Types and Names of CasesAppealing Cases to Higher CourtsTwo Routes to Review by the SCThe Writ of Certiorari (cont.)Supreme Court Decision MakingSC Decision Making: The ConferenceSC Decision Making: The Conference (cont.)Slide 15THE JUDICIAL BRANCH:STRUCTURE AND PROCESSTopic #12Judicial Review as a “Byproduct”•Because it is exercised by ordinary courts (rather than by a special “constitutional court”), judicial review in the U.S. does not operate in the following fashion:–Congress passes a law,–the President signs the law,–the Supreme Court reviews the law [in the manner of a “constitutional court”], and then (if it is judged to be constitutional)–the law goes into effect.•Rather, as was illustrated by the case of Marbury v. Madison, it operates in the following fashion:–Congress passes a law (e.g., the Judiciary Act),–the President signs the law, and–the law goes into effect.–The law may subsequently produce a legal case (Party A v. Party B) and, in deciding the case (e.g., whether someone can be convicted for violating the law), courts may have to decide whether the law is constitutional.•So U.S. courts exercise judicial review as a byproduct of deciding concrete cases that come before them.–However, it is also true that concrete cases may be contrived deliberately to test the constitutionality of laws.The Federal Compromise Produces a Dual Court SystemThe Federal Court System•Not only the size but also the structure of the U.S. court system (particularly at its intermediate level) has changed since the original Judiciary Act of 1789,–as a result of many amendments to the Judiciary Act.•The size of the Supreme Court has been fixed at nine since 1869.•The old Circuit Courts have been replaced by U.S. Courts of Appeal–However, the geographical jurisdictions of these intermediate Courts of Appeal are still referred to as “circuits.”–In each circuit, appeals Court judges normally sit in panels of three.•Larger states now contain several U.S. District Courts, and–each District Court has several judges.–A U.S. Attorney is assigned to each Federal District Court.The Federal Court System (cont.)•The allocation of original vs. appellate jurisdiction in today’s federal courts:•District courts: 100% original•Courts of Appeal: 100% appellate•Supreme Court: ~ 99.9% appellate, ~0.1% original•State court cases that raise “federal questions” they may be appealed to the U.S. Supreme Court.•As previously noted, state court systems typically follow the same three-tiered structure as the federal system.The Dual Court System (Resulting from the Federal Compromise)Types and Names of Cases•Original criminal cases (prosecution vs. defendant):–United States v. John Doe–The People [State, Commonwealth, etc.] v. John Doe•Original civil cases (plaintiff vs. defendant)–Marbury v. Madison–Maryland v. McCulloch –Plaintiffs and defendants may be either governments or private parties•Cases appealed to higher court (appellant vs. other party):–loser v. winner at lower level–John Doe v. United States (or state)–McCulloch v. Maryland (Topic #17)Appealing Cases to Higher Courts•While the SC is primarily an appeals court, it can review only a tiny fraction of the cases that it might review.•Most cases are resolved at the trial (district) court level.–Most criminal cases are resolved by plea bargain, so there is no trial and no appeal.•Most criminal defendants who go to trial are convicted, but often the case is pretty open-and-shut, so there is little basis for appeal.•If there is a trial and the defendant is found to be not guilty, the prosecution cannot appeal.–Many civil cases are settled out-of-court before trial.•But if a civil case goes to trial, the loosing party can usually appeal and often does so.•Appeals from Federal District Courts to the Court of Appeals are fairly automatic if requested.•But appeals from the (federal) Courts of Appeal or from state Supreme Courts to the SC are rarely automatic.Two Routes to Review by the SC•Prior to 1925, many cases could be appealed to the SC, whose caseload therefore became overwhelming.•As a result of an amendment to the Judiciary Act in 1925, only a few types of cases now qualify for a (more or less) automatic review by the SC.–e.g., when a lower court has declared a federal law to be unconstitutional.–Such cases constitute only about 10% of the SC case load (~10 cases a year).•In other cases, the losing party may petition the SC for a writ of certiorari, by explaining why the SC should review the case:–If the petition is granted, the SC issues the writ to the lower court, ordering it to send up the case material for review.–About 7,500 such petitions are filed with the SC each year, but the SC grants petitions in only about 100 or fewer cases a year.–Nevertheless, such cases make up about 90% of the SC’s case load.The Writ of Certiorari (cont.)•The SC can use the petition for writ certiorari procedure to “screen” cases for its consideration and thereby it can largely control its own agenda, i.e.,–the SC can pick and choose the cases it will take for review.•The SC uses the “rule of four” (4/9 rule) in deciding whether grant “cert.” –The SC court is especially likely to grant cert•if the case raises important and/or unresolved legal issues, or•if the lower court(s) have ruled in a way that appears to be contrary to precedent and prior SC decisions, or•if lower courts are following a SC precedent that members of the SC now want to reconsider and perhaps overrule.•Justices who vote to grant cert–are rather likely to support the appellant and reverse the lower court decision if SC takes the case, but–there is no guarantee they will so decide.Supreme Court Decision Making•Both parties submit written briefs, stating the legal arguments that support their positions.–Amicus curiae (“friend of the court”) briefs may also be submitted (by the U.S., advocacy groups, etc.).•Oral argument is scheduled.–Time is very limited, usually no more than one hour for each side.•And justices commonly interrupt the lawyers with questions.–If the United