Judicial System & Court

About six months from now, in a court house about one mile from here, baseball star Barry Bonds will go on trial. He's accused of lying to a federal grand jury about using steroids. If Mr. Bonds is found innocent, his legal troubles may be over, but if he's convicted, the case will surely be appealed and that appeal will be heard right here in the 9th circuit court of appeal. The 9th circuit serves all of the western coast of United States from Alaska to Arizona and who knows, the case can even go to the US supreme court.

Welcome back. This is episode 10 about the federal and state judiciary. We're going to talk in this episode about the structures of the federal and state courts and then we're going to talk about the politics of selecting judges and judicial philosophy. Finally, we're going to do a quick overview of the US supreme court for the last 50something years. Starting with the Warren Court in the 50s, the Burger court, the Rehnquist court and the current court with John Roberts. You're ready to get started?

First things first, let's talk about the structure of the federal courts. First of all, you know by now that there are three levels of the federal court. They're the district court, the circuit courts of appeals and of course the US supreme court. Federal judges are appointed for life, the president actually chooses all federal judges. They're confirmed by the United States senate and a simple majority vote. Hence another example of checks and balances, Article 1, Article 2.

There's 94 district courts in America, there's 13 circuit courts including the circuit court of appeal right here in San Francisco that you've just seen, that 9th circuit again, Alaska to Arizona. The supreme court; nine judges, five to four makes law in the supreme court and almost all cases are judged by all nine judges.

Let's get started then. Every October, the supreme court meets in session to consider the court cases for that particular session. Of all the hundreds of cases that go the supreme court, they take only a handful. The way that that's done is they grant a writ of certiorari, and it is also as you know call to grant cert or the rule of four. If four judges on the court decide that the case should be heard, then the case will be heard. Lawyers argue the case in October, usually half hour of argument for the plaintiff, a half hour of argument for the respondent. The judges meet in session, the decisions are made in the following spring. You've seen this before and I'll talk very briefly about Marbury versus Madison. You know that that established the principal of judicial review. And Justice John Marshall is given tremendous credit for putting the judicial arm of government on an equal footing with the legislative branch and the executive branch. Fletcher and Peck and McCulloch versus Maryland also deal with the power of the federal government to deal with issues of the state. We'll include that in your bonus materials today.

Let's talk a little bit about judicial philosophy. You see the term judicial activism, you hear that everyday in the press especially in the conservative press. Well what does that really mean? An activist judge is someone who is seen as actively interpreting the constitution. Because Madison says it's a flexible, breathing document and judges of each generation have to make a determination about what that means. For example, in the case of Roe versus Wade, judges decided that a woman has the right to have an abortion. We'll get back to that in just a second.

Nowhere in the constitution does it say that there is a right to abortion, but the judges of the time in the 1970s made that determination. That's judicial activism. You'll also hear the terms broad construction, it's the same thing more or less with judicial activism or strict construction or narrow construction. People who take the constitution literally. Basically if it says it it's a right if it doesn't say it it's to the states or to the people.

Let's talk a little bit more about that Roe versus Wade case. As you probably have heard by now Norma McCorvey sought an abortion in the state of Texas in 1971. Texas law forbid abortion and so McCorvey sought relief through the courts. The case made it all the way to the United States Supreme court and in the supreme court, her lawyer, Sarah Weddington argued that her body was her decision. And she found her constitutional protection by the first, the 3rd, the 4th and 9th and 14th amendments. In fact one political observer cracked, "That's like going duck hunting with an AK 47." She was looking for a penumbra of protection for the right to privacy.

The state of Texas argued that there is no such right to privacy, especially when it comes to abortion. Where in the constitution can you find that word abortion? It's nowhere, and if it isn't in the constitution, then it falls to the state of Texas in order to legislate that. That was known as the strict constructionist view. In the end, the court found Norma McCorvey and the right for a woman to have an abortion and they gave that right to privacy through the 14th amendment.

Let's start with the Earl Warren Court if we're looking at the court from the last 50 years. Earl Warren was chosen by Dwight Eisenhower, his first choice to the supreme court. And it's not unusual for a judge who's picked for the US supreme court to be picked as the Chief Justice, to go to the head of the line. Warren had been the Governor of California, Eisenhower thought he was a great pick. Within a few years, Eisenhower said it was the worst decision that he ever made in his entire life. Why? Because the Warren court is known as the most judicially active court in American history. The court moved to the left. So if we have that balance scale again, and we talk about the rights of the individual versus the rights of the state, to run a healthy, safe and secure state, the rights of the individual came forward during that time. So look at all these cases that happened.

You probably know Brown versus Board of Eduction, Mapp versus Ohio excludes illegally obtained evidence. The Gideon case is about obviously being able to have a lawyer in a court of law. Miranda, you have the right to remain silent. You've seen all that on television. So they're focusing on the rights of criminal defendants during this period of time, the judicially active court.

The Burger Court again, Warren Burger is named as the Chief Justice by Republican president, Richard Nixon. What happens in this court, even though the chief justice is very conservative, the court itself stays judicially active. Swann versus Mecklenburg is about busing. The federal government ordered busing in order to achieve racial segregation. In many places throughout the country, conservatives hurled but the supreme court said that was needed, in order to address the imbalance or unjust racial inequities in North Carolina.

Furman versus Georgia, it put upon the states a death penalty. The death penalty was going to be reviewed by the federal government and again, that was seen as an activist role. Roe versus Wade, we just talked about. Things start to get more conservative in the 80's all the way through the year 2005. During the Rehnquist court, there's still a core of people from the Warren court. Remember judges are appointed for life. John Paul Stevens is the oldest member of the court, he's nearly 90 years old. Clarence Thomas was the youngest man on the court, he was appointed when he was 43 years to the court. So it's not inconceivable that a judge can serve 30, 40 or even 50 years. Bakke versus the University of California is an affirmative action case, where the court ruled that race is one factor of many, in determining whether qualified minorities can be considered for post in employment and in education.

Webster versus reproductive clinic is the beginning of a more conservative bend in this court. After Roe versus Wade passed, things began to tighten up with regards to abortion rights. Webster limits the rights of women and where abortions can be performed. In fact, there are some states that have only one clinic in the entire state where abortions can be performed. Also during this time, most of the states passed legislation that say, women under the age of 18 need to have the consent of a parent or a judge. So abortion rights are being constricted during the Rehnquist Court.

Good faith exceptions are also added during this period of time. Remember in Mapp versus Ohio, you can't include any evidence that has been obtained illegally. What happens if the police act in good faith or the judge determines that? They're going to start to narrow the rights of a criminal defendant or they're going to balance that with the right of the civil authority.

New Jersey versus TLO, that's the case where a young woman was searched, contraband was found in a school environment, the authorities did not have probable cause as designated by the fourth amendment. But again the civil authorities are going to get more power to run a safe and secure school. And they said the search was all right with just reasonable suspicion. So we're moving steadily to the right.

Now where are we at now? John Roberts, the new head of the supreme court appointed by George Bush. Appointed from an Appellate court to be the Chief Justice of the supreme court. We should know now that all of these Chief Justices were appointed by Republicans. We also should know, that seven of the nine judges that served on the current supreme court, had been appointed by Republicans. What do we have in this term? We have an even narrowing of the right to abortion. We have a partial birth abortion has been banned, law passed by Congress upheld by the US supreme court. And in the end we have affirmative action cases and abortion cases that now hang by a very narrow constitutional threat. After the Michigan case, and the Lawschool case, the Grutter case, affirmative action five to four. After the latest abortion cases five to four, if Stevens leaves the court or the Republican picks the next supreme court judge, you may see a reversal in what was once considered a set of law it may not be. What happens if the case is reversed? It means that the decision, we'll go back to state or back to the people and so judicial activism is going to be a broad interpretation. The narrowing or the constricting of it, we're going to give it back to the court. So that's about it we'll wrap up in just a second.

You're going to have to know a few things for the AP exam. You want to remember the structure of the court. The federal court, the three levels of the courts. The state courts are somewhat like that, there are just more judges and more of the courts. You want to know the key terms, you want to know the court cases and you want to know a little bit about the history about the shift to the right of the supreme court. By the way my money says bonds doesn't go to jail, we'll see in episode 11 when we talk about the bureaucracy.