Week 15 assignment

If someone believes the district court has made a mistake in their ruling, then they have the right to appeal the decision.  An appeal is when you ask a higher court to review the decision made by a lower court because you believe that lower court made a mistake.  Appeals courts are different in terms of their purpose; these courts are not giving a new trial or a retrial, they are seeing whether the lower court, the previous court, made a mistake in how they interpreted the law or how the applied the law.  The could also be looking to see if there were any procedural mistakes.  

Appeals/Circuit courts are also different in terms of how they function; there is typically no jury, or evidence, or witnesses.  These courts are not the kind you normally see in movies.  Instead, it is typically just a group of judges (the number varies but often there will be 3 judges) who will hear the arguments made by opposing attorneys.  One attorney will be making the case that the previous court made a mistake in some way and the other attorney will make the case that the previous court did not make a mistake. 

The judges will then make a decision and their decision is whether the previous court made a mistake or not.  If they conclude that the previous court did not make a mistake, then the decision stands.  If they conclude that the previous court did make a mistake, then the decision is overruled/thrown out.  

There are a total of 13 circuit courts, and they hear cases primarily based on where those cases originated geographically.  California is in the 9th Circuit Court of Appeals.  Below is a map of all the circuit courts.  

The picture above is of a circuit court.  As you can see, there is no jury and there are several judges hearing a case.  Collectively, the judges will make a decision on a case, and cases are usually decided on a majority-rule basis.

Judges for these circuit courts are also nominated by the president when there is a vacancy/opening on that court.  

If someone does not like the decision of a circuit court, then the last option is to appeal to the Supreme Court.  The Supreme Court is a type of appeals court, and it is the highest court in the country and has the last word on the constitutionality of laws. 

However, getting a case heard by the Supreme Court is REALLY REALLY difficult...

How Does a Case Get Heard by the Supreme Court?

A very important fact about the Supreme Court is that they DO NOT have to hear a case that is appealed to them.  The Supreme Court can pick and choose which cases they hear and they only select a VERY few number of cases a year.  If the Supreme Court decides not to hear a case, then the ruling of the previous court, the Circuit Court, stands.  

Above is a representation of the process by which cases can reach the Supreme Court.  We will only be addressing the right-hand side of the chart (you will see that there are some cases that involve "original jurisdiction" which can move immediately to the Supreme Court, but those cases are VERY rare).  

Generally, cases have to make their way up the ladder to reach the Supreme Court.  Usually, the Court cannot simply say that law X is unconstitutional; they need a case which challenges law X to make its way through the system in order to declare the law unconstitutional.  

Please watch the following video which has good information regarding how a case reaches the Court.  While watching, be able to answer the following questions: 

1. What is a writ of certiorari?

2. What is meant by the Rule of Four?

3. What are the three main reasons why the Court might hear a case?

4. https://www.youtube.com/watch?v=KEjgAXxrkXY&feature=emb_title

5. To make this a little clearer, let's use a hypothetical scenario: 

6. Let's say you are an attorney and your client has been charged with violating federal marijuana laws (remember marijuana is still illegal according to the federal government).  Let's say he/she was arrested on the charge of illegal marijuana possession, and for this scenario we will assume that your client is actually guilty and is in possession of a lot of marijuana.  Instead of defending him/her on the basis that they are innocent, you are going to instead defend them on the basis that the law is unjust and unconstitutional (and you can absolutely start a court case by questioning the validity or constitutionality of a law).  Basically, your argument is not that your client is innocent, but rather that the law they violated should not be a law.  

7. Your court case would start at a district court and a trial would commence.  Let's say your client is found guilty.  Your next step as the attorney is to appeal the decision to the 9th Circuit Court of Appeals.  Your argument at the court of appeals is that the law is wrong and the district court made a mistake by upholding that law.  Let's also say that the 9th Circuit, which is known to be a fairly liberal court and one that President Trump HATES (Links to an external site.), agrees with you that the law is unconstitutional.  Their decision overrules the district court's decision.  BUT, let's say that the prosecutors (the federal lawyers) disagree with the 9th Circuit and believe that the law IS constitutional and that the 9th Circuit is overstepping by declaring it unconstitutional.  The federal prosecutors can appeal the decision made by the 9th Circuit to the Supreme Court in hopes that the Court decides to hear the case.  

8. If they don't agree to hear the case, then the decision by the 9th Circuit stands.  If they do agree to hear the case, then we have ourselves a Supreme Court case!!  

How Does the Supreme Court Function?

As mentioned before, the Supreme Court is EXTREMELY selective.  But let's say that in our scenario from the previous page, 4 Supreme Court justices have agreed to hear our case (passing the Rule of 4).  Now what? 

The following are done in leading up to the Court making their decision: 

· Writs of Certiorari are issued: the Supreme Court is going to want to learn everything about the case and why the previous courts made their rulings.  The writs will enable justices to decide whether to hear a case and will help them in deciding a case as well

· Amicus curiae briefs are written: these are legal arguments for why the Supreme Court should vote one way or the other.  For example, in our scenario, groups that pro-marijuana organizations, or people who just generally want to see marijuana de-criminalized, would write briefs in which they make their arguments for why federal marijuana laws are wrong.  Groups that are anti-marijuana organizations, or just want to see marijuana remain criminalized, would write briefs saying why they believe the existing laws are constitutional.  These briefs are written and sent to the Court, where they may or may not make a difference in how the Court rules.  See these articles (Links to an external site.) for more information (Links to an external site.) on these kinds of briefs.

· Oral arguments: this is where the lawyers present their cases (one side saying why the law should be overturned and one side saying why the law should not be overturned in our scenario).  Keep in mind, the Supreme Court is an appeals court which means there is no jury, no witnesses, and no evidence.  It is simply the lawyers presenting their cases and then the 9 justices/judges ask questions of the lawyers.  Interestingly, because of Supreme Court rules, there are no video cameras allowed in the Court so there cannot be any video recordings made of the cases.  However, audio recordings are allowed.  Here is a video, you do not have to watch the whole thing, in which someone took the audio portion of a case and then had dogs "represent" the justices. 

· Puppy Justice (Links to an external site.)

· Deliberations and Opinions: after hearing oral arguments, the justices will then take time to deliberate and make their decision.  This stage can often take months.  The justices will review the oral arguments, review relevant cases, and consider their interpretation of the law and the constitution.  Eventually, they will come to a conclusion.  The make decision on the basis of majority-rule, meaning, 5 or more justices are needed to make up the majority (there are 9 justices total).  Typically, a majority opinion is written, in which the side with the most votes explains why they voted a certain way.  There is also typically a minority opinion, in which the justices who did not agree with the majority explain why they voted differently.  

Since the Supreme Court is the highest court, there is no appealing a Supreme Court decision.  The president CANNOT overrule the Supreme Court nor can Congress.  Their decision also impacts all cases in the lower courts as well; meaning, lower courts should uphold the decisions made the Supreme Court.  

Is there any way to change a Supreme Court decision, or is there any way to get them to change their mind??  

Yes. 

There are two main ways to try to get around a Supreme Court decision that might not be popular: 

1. Get Congress and the states to amend the Constitution.  Since the Supreme Court has to uphold the Constitution, if you are not happy with their interpretation of the Constitution, you can try to get Congress and the state governments to amend the Constitution to change what it says.  We already learned that this is INCREDIBLY DIFFICULT to do.  But it is an option.

2. Get a future Supreme Court to overrule the decision made by a past Court.  This is an important point: the Supreme Court CAN overrule themselves; meaning, they can change their mind.  The Supreme Court in 2019 can overrule a decision made by the Supreme Court in 1990 (or any other year).  We already learned that the Supreme Court at one point ruled segregation to be constitutional, and then several decades later overruled that decision and said segregation is not constitutional.  So, if you wait until there are new justices on the Court, and hopefully justices with different interpretations of the Constitution, then a case dealing with a similar issue to a previous case can make its way up the ladder to the Supreme Court and perhaps this new Court will rule differently.  This has actually been done several times, and is the most common way to get a different ruling by the Supreme Court.  Unfortunately, this takes time and patience as you would have to wait for existing members of the Court to leave and be replaced by justices that have different interpretations. 

Ultimately, the Supreme Court has a lot of power and can have a huge influence over the country's laws.  Some have argued that the Supreme Court might have too much power and some have argued that it is "undemocratic" in terms of how it functions.  We will examine this debate more on the next page.  

The Justices of the Supreme Court

The Supreme Court has 9 justices (the photo above are the current justices of the Supreme Court).  Interestingly, the Constitution does not specify how many justices there should be (at one point in time there were only 6) and the Constitution does not have specific requirements for serving on the Court.  Meaning, in theory, someone who has not gone to law school could serve as a Supreme Court justice.  Here are some other interesting historical facts about the Court.  (Links to an external site.) 

So who are these 9 people? Here are the justices:

· Chief Justice John Roberts: born in 1955, nominated by President George W. Bush, confirmed in 2005

· Clarence Thomas: born in 1948, nominated by President George H. W. Bush, confirmed in 1991

· Ruth Bader Ginsburg: born in 1933, nominated by President Bill Clinton, confirmed in 1993.  She was the second woman to be confirmed to the Court 

· Stephen Breyer: born in 1938, nominated by President Bill Clinton, confirmed in 1994

· Samuel Alito: born in 1950, nominated by President George W. Bush, confirmed in 2006

· Sonia Sotomayor: born in 1954, nominated by President Barack Obama, confirmed in 2009.  She is the first Latina(o) to serve on the Court

· Elena Kagan: born in 1960, nominated by President Barack Obama, confirmed in 2010

· Neil Gorsuch: born in 1967, nominated by President Donald Trump, confirmed in 2017

· Brett Kavanaugh: born in 1965, nominated by President Donald Trump, confirmed in 2018

Here is more on the biographies of each of these justices (Links to an external site.).

A few things to note about the Court: 

· Members of the Supreme Court are nominated by the President and have to be confirmed by the Senate.  We, the people, do not vote for these individuals nor can we vote them out of office.

· Supreme Court justices have life-time terms; meaning, they have their job for as long as they want (until they retire or die).  This is why we sometimes see justices serve for several decades.  They will often serve long after the president who nominated them leaves office.

· Justices can be impeached and removed from the Court using the same process for removing a president from office.  No justices have ever been removed from the Court, although one was impeached in 1804. 

· There is no age-limit to serving on the Court 

· Typically, these individuals are highly respected and regarded judges.  They have often been judges in circuit courts or would be considered legal scholars.

· The "Chief Justice" is not necessarily the longest-serving member.  This is a bit of an honorary title, and he does not have more voting power than the other justices.  His role is primarily to preside over the hearings and keep the hearings orderly.  He also is the person that swears in the president at the inaugurations.

Please watch the video below for more information about who is on the Court and some of the debates regarding the justices.  

https://www.youtube.com/watch?v=rwfc84ozhwQ&feature=emb_title

How Do They Make Their Decisions?

The justices of the Supreme Court make decisions on the cases they hear based on their interpretations of the Constitution.  Their overall job is to uphold and enforce the Constitution.  However, doing that is not easy because the Constitution is not always clear and there are lots of areas of ambiguity.  

There are two main models to try to understand how justices might view their role and how they might make their decisions: judicial activism and judicial restraint. 

JUDICIAL ACTIVISM

This model refers to the idea that judges would consider the societal implications of their decisions.  Meaning, while they still are thinking about the Constitution, they also think about what is good for the society and what is "right."  They are not going to be completely limited by what they believe the Constitution says, and they are likely to consider what is in the best interest of the society.  Judicial activist judges might be more willing to use their judicial power to advance certain causes or correct problems in the society.  

The advantages of this model is that judicial activist judges are more likely to favor change and are interested in trying to make society "better."  These judges also care about how their decisions will be viewed in society and might be more responsive to changes in society.  However, the disadvantages are that what these judges think is "good" for society is probably not what everyone thinks is "good."  This model also allows judges a lot of power and flexibility in making their decisions, which may or may not be a good thing.  Lastly, some might argue that it is the job of judges to uphold the Constitution, not to make policy or fix societal problems.  

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JUDICIAL RESTRAINT

This is the opposite of judicial activism.  Judicial restraint judges are those that stick very closely to the original meaning of the Constitution.  These judges set aside their own personal views and do not particularly care about how their decisions are viewed by society.  They do not care about trying to solve societal problems, but rather strictly enforce and uphold the Constitution.  These judges also try to envision what they believe the Founding Fathers and the Framers of the Constitution would have wanted.  

The advantages of this model is that these judges are less likely to be politically motivated.  These judges will be more restrained in using their power and might take a more limited view of their role.  However, the disadvantages of this model is that change is less likely to happen with these judges and societal problems are less likely to be solved.  Additionally, many would argue that it is not good to uphold the original intent of the framers of the Constitution because that was a long time ago, our country has changed dramatically since then, and the people who wrote the Constitution were primarily white, elite, men.  Therefore, some would argue, we should be looking more at how the meaning of the Constitution has changed rather than just upholding what was written in the 1700s.  

So, would you prefer your judges to be activist or restraint-oriented judges?