POSC 225 1nd Edition Lecture 21Outline of Last Lecture I. Imperial Presidencya. Fisher Articleb. Congressional DelegationII. Rhetorical PresidencyIII. Framer’s IntentOutline of Current Lecture - The Judiciary continuedI. Sources of Judicial PowerA. Federalist 78II. Marbury VS MadisonIII. Structure of the JudiciaryA. Method of AppointmentB. Terms of AppointmentIV. Types of Article III CourtsA. Federal District CourtsB. Appellate CourtsC. Supreme CourtV. Federal Court ProcedureCurrent Lecture - The Judiciary - cont’dSources of Judicial Power - cont’dFederalist 78 - cont’d1. a defense of tenure during good behavior and2. judicial review.Antifederalists say Judicial Review is non-democratic, and too powerful. Hamilton must demonstrate how JR is democratic. AHA says Judicial review is implied by the ever dea unlimitedconstitution: one which places specific restrictions on legislative authority. 1. Tenure during good behavior breeds an independent spirit necessary for judges to stand up againsta. constitutional encroachments: One branch exceeding powers at the expense of another branch. Can’t have popular election of judges because it leads to bribery,favoritism etc!b. constitutional violations of individual rights. 2. limited constitution implies that statutes contrary to the constitution are invalid3. Someone has to determine when a violation occursa. the judiciary is the appropriate “least dangerous branch”, judges are trained to determine this.b. Judges to declare a law unconstitutional are not favoring their own beliefs, ratherthe “higher law” which defends the will of the people over a law passed by elected representatives. Upholding the will of the people is expressed in the constitution over the will of the inferior legislature.c. this is consistent with democratic government by consent.Marbury VS Madison This case is the first time the power of Judicial Review is exercised: Federal court ruled that federal statute was unconstitutional.The Problem: a judiciary act was passed in 1791 and controversy arises after election of 1800 between John Adams and Jefferson (each really truly believed that the other man was a threat to the future of the nation, they hated each other). THere wa sa full in 1801 where Adams was still in office, he nominated federal judges (federalist judges) before Jefferson is inaugurated/ Marbury is nominated in a “midnight appointment”: (Last minute stacking of the Federal courts before president leaves office). Jefferson is inaugurated and finds that some of the Judges haven't’ received their signed document commissioning them to be judges He tells James madison (secretary of state) not to deliver threatening commissions since no commission meansno seat in the Court. That way Jefferson could appoint someone else.Marbury sues James Madison. According to th 1791 judiciary act, his case goes straight to the Supreme Court asking for a Writ Mandamus (court order mandating Madison’s delivery of the commission).● The SC rules that the request for a Writ of Mandamus portion of the 1791 law is unconstitutional because Article III of the Constitution specifically ties the types of cases that can go before the supreme court. ● So th 1791 law essentially tries to alter the terms of the constitution by adding Writ of Mandamus to direct request from the SC. Only an amendment to the constitution could do something like this - not a law.Bigger political problem: John Marshal s in the SC, and he hates Jefferson. BUT his ruling did not go against what Jefferson wished. This case is politically important because it establishes using Judicial Review for the first time (aka ruling a law unconstitutional) without a direct conflict withthe executive branch. WHat if Jefferson had said, screw you, you don’t get to be the only one interpreting the constitution? Judicial review might look very different today.Structure of the JudiciaryMethod of AppointmentArticle II of the Constitution deals with the courts. 1. Judges and Justices (justices are in the SC) are nominated by the president and then confirmed (or rejected) by the Senate. 2. Includes testimony before Senate Judiciary Committeea. until 2013 you needed 60 votes in the Senate to confirm - it used to be fairly routine and usually 9/10 Justices were voted up in a few months. Then in the Nixon/Bush administration, delays grew so bad (so 1990’s and 2000’s) that the senate changed its Filibuster rule for most judicial nominees (not Supreme Court nominees) so that the can’t filibuster anymore.What about non Article III courts? Article I Section 8 and the territories clause in Article IV establish other kind of courts. ● A 1 S 8 - for example, military courts● Territories Clause Article IV establishes courts in territories (such as a federal court in American SImoa). Here the rules are different, however:○ Judges are not guaranteed life tenure and not guaranteed salary protection○ both of these are guaranteed in all Article III courts. Terms of Appointment1. Serve life tenure during good behavior. This guarantees independent spirit of the judiciary: judges do their duty in the ace of political pressure. Judges who must see reappointment don’t have fortitude to guard the constitution. Types of A III Courts (working from the bottom up. ● Article III courts are created by congressional law.Federal District Courts● there are currently 94. ● It’s a trial court (considers questions of fact as well as law - you are either acquitted or convicted)● original jurisdiction (the case originates there)Appellate Courts● There are currently 13 total○ 11 circuit courts of appeal○ 1 circuit court of appeal for DC○ 1 court of appeals for the Federal Circuit (which hears tax, patent, and international trade cases.)○ The size of the courts vary with the number of judges ranging from 6-29. Normally divided into benches of 3● These courts review the legal procedure and question of law related to district court cases - they DO NOT hold trials. ● They only have appellate jurisdiction, there is no jury but rather an attorney representing each side to a judge/bench of judges.● Always hears cases on review● Different appellate courts are known to be more liberal/conservative● Appellate courts are powerful; they set legal precedent over states in their jurisdiction. SC reviews less than 1% of the +10,000 cases per year that come before the appellate courts. ● NOTE