Chapter 14: The Courts 1
CHAPTER 14
The Courts
Learning Objectives
After reading this chapter, students should be able to do the following:
1.Define the key terms at the end of the chapter
2.Describe the role of the courts in the 2000 U.S. presidential election
3.Explain the concept of judicial review and how it was established in the case of Marbury v. Madison and other various cases, including applications to state governments
4.Sketch the basic organization of the federal court system and identify the type of jurisdiction of each level of the courts
5.Explain the role of the federal district courts and federal appeals courts
6.Define and explain differences between criminal and civil law cases, statutory interpretation and common law
7.Describe two ways in which judges exercise a policymaking role
8.Outline the routes by which cases come to the Supreme Court or the federal courts
9.Describe the formal procedures at the Supreme Court’s biweekly conferences
10.Explain ways in which justices, particularly the chief justice, influence court decisions
11.Describe the process of appointment to the federal judiciary, including the role of the American Bar Association
12.Evaluate the Supreme Court as an instrument of pluralist or majoritarian democracy, identifying specific examples of each
Chapter Synopsis
This chapter begins with a discussion of the role of the judiciary in deciding the 2000 presidential election. These events highlight the deep connection between the judiciary and the political processdespite the popular idea that the judiciary is not a “political” institution. Indeed, the task of the judiciary is to choose between competing valuesand thus is essentially political. Freedom, order, and equality vie for dominance throughout the nation’s courts.
The Constitution created only one court—the Supreme Court—and sketched the rough contours of federal judicial power. The real design took shape in the first Congress. (Much of that handiwork can be seen in today’s court system.) Congress created federal (national) courts that would coexist with the courts in each state, but would be independent of them. But the judiciary was not viewed as a powerful branch of government until John Marshall was appointed the third chief justice in 1803.
Marshall’s opinion in Marbury v. Madison (1803) established the power of judicial review, the judiciary’s power to declare acts of coordinate branches (and acts of state government) void because they violate the Constitution. This power appears to conflict with democratic theory because an unelected branch can trump an elected branch in the name of the Constitution.
The federal courts form a hierarchy, with the Supreme Court at the apex, the courts of appeals in the middle, and the district courts at the base. Note that most litigation arises in state courts; federal courts have limited jurisdiction to decide criminal and civil cases. Criminal cases occur when the government prosecutes persons for violating criminal codes. Civil cases involve a private dispute about something of value. Policymaking in the courts occurs at all levels, but it is most pronounced in appellate courts, where the emphasis on judicial opinions enables judges to create precedents. Opinions in the majority, but which cite different reasons for the decision than the majority, are concurring opinions. Those opinions sometimes written by the minority are dissenting opinions.
The Supreme Court receives special consideration because the situations that reflect the most important value conflicts inherent in American democracy often end up before the Court’s nine justices. The Court is a national policymaker with far-reaching impact. It exercises influence in part through the power to set its own agenda; it is aided in this function by the solicitor general, who represents the federal government before the Court. Activist judges are known for establishing new precedents or new interpretations of the law, while restraint judges are just the opposite.
If presidents are successful in appointing judges who share their values, they can influence policy even after their term as president is over. Although this is true across the federal judiciary, it is especially pronounced for appointments to the Supreme Court. Judges exercise political power; some recognize this power more than others. Separation of powers and checks and balances frustrate representative government. Groups that failed to secure or protect their interests in the democratic branches can turn to lawyers and the courts. Pluralist democracy operates when groups press their interests on the government. The open access provided by the courts reinforces pluralist democracy.
Though judicial power runs counter to democratic theory, policies emanating from the Supreme Court rarely seem out of step with majority sentiment or the trend toward such sentiment. There are some exceptions to this observation, such as the Roe v. Wade abortion decision, which generated substantial opposition. Recent decisions and changes in the Court presage a change on the abortion issue; however, though this would assuage a vocal segment of the electorate, it is not clear that this would necessarily reflect majority views.
Judges confront new issues calling for the exercise of judicial power. With open access to the judiciary and the creation of new rights in the name of the Constitution, courts have increasingly become the arenas in which the conflicts between freedom and order and between freedom and equality are resolved.
Parallel Lecture 14.1
I.National judicial supremacy
A.Article III, Section 1 of the Constitution established “one Supreme Court”
1.Founders deferred to Congress to structure the national court system
2.The Judiciary Act of 1789: provided for a system of federal courts that would coexist with the courts of each state but be independent of them.
3.Federal judiciary was not especially powerful until early nineteenth century
a)The first chief justice, John Jay, resigned for lack of power.
b)Several statesmen refused appointment.
4.Period of change began with appointment of John Marshall as chief justice in 1801
B.Judicial review of the other branches
1.Marbury v. Madison (1801)
a)Marbury established judicial review: the power to declare congressional (and presidential) acts invalid because they violate the Constitution.
b)Marshall expanded the potential power of the Supreme Court to equal or exceed the power of the other branches of government.
2.Power of judicial review appears to run counter to democratic theory
a)Unelected branch (judiciary) checks an elected branch (executive or legislature) in the name of the Constitution
b)Supreme Court has invalidated only about one hundred and sixty provisions of national law
c)Constitution provides mechanisms to override judicial review and control excesses of the justices
d)Court can also reverse itself
C.Judicial review of state government
1.Supreme Court also exercises judicial review over state laws and executive actions
2.Court has invalidated nearly thirteen hundred state and local laws
D.The exercise of judicial review
1.Components of judicial review
a)Power of the courts to declare national, state, and local laws invalid if they violate the Constitution
b)Supremacy of national laws or treaties when they conflict with state and local laws
c)Role of the Supreme Court as final authority on the meaning of the Constitution
2.Hamilton anticipated the power of judicial review in Federalist No. 78.
a)The judiciary is the least dangerous branch: they have “neither force nor will, but only judgment.”
b)Argued judicial review was an essential barrier to legislative oppression
c)Two checks on the power: impeachment and constitutional amendment
II.The organization of courts
A.The state courts
1.Each state (and the District of Columbia) has its own court system.
2.No two state systems are alike.
3.State courts co-exist with the federal court system; individuals fall under the jurisdiction of both.
4.The state courts handle and resolve the vast majority of legal disputes.
5.Volume of state court cases rises at about 1 percent per year
B.Some court fundamentals
1.Criminal and civil cases
a)Criminal case: a court case involving a crime, or violation of public order.
(1)Maintaining public order is largely a state and local function.
(2)National penal code is limited by federalism
(3)National crime-fighting measures have begun to usurp state authority.
b)Civil case: a court case that involves a private dispute arising from such matters as accidents, contractual obligations, and divorce.
(1)Disputes may be over tangible or abstract issues.
(2)Government may be a party to a civil dispute.
2.Procedures and policymaking
a)Most cases never go to trial.
(1)Plea bargain: a defendant’s admission of guilt in exchange for a less severe punishment.
(2)Parties may also settle: resolve dispute between themselves.
b)When cases are not settled or abandoned, they are adjudicated.
(1)Adjudication: a court judgment resolving the parties’ claims and enforced by the government.
(2)Judges may publish opinions: explanations justifying their rulings.
c)Judges make policy in two ways.
(1)Common law (judge-made law): legal precedents derived from previous judicial decisions.
(2)Statutory construction: application of statutes enacted by legislatures.
3.Federal court organization: pyramid structure
a)U.S. district court: a court within the lowest tier of the three-tiered federal court system; a court where litigation begins.
b)U.S. court of appeals: a court within the second tier of the three-tiered federal court system, to which decisions of the district courts and federal agencies may be appealed for review.
c)Supreme Court: at the apex of the pyramid
C.The U.S. district courts
1.Ninety-four federal district courts
a)Each state has at least one district; no district straddles a state line.
b)2004: 679 full-time district judgeships; over 352,000 cases
c)Entry point for the federal court system; where trials take place
d)Each case is tried by a single judge.
e)Magistrate-judges assist district judges, but lack independent judicial authority.
2.Sources of litigation
a)Federal criminal cases
b)Civil cases that allege violation of national law
c)Civil cases brought against the national government
d)Civil cases between citizens of different states when amount in controversy is greater than seventy-five thousand dollars
D.The U.S. courts of appeals
1.All cases resolved in district court and all decisions of federal administrative agencies can be appealed.
a)Circuit: geographical area covered by a U.S. court of appeals.
b)Thirteen U.S. courts of appeals; twelve circuits in the U.S., and the U.S. court of appeals for the federal circuit
c)One hundred and sixty-seven full-time judgeships; sixty-three thousand new cases in 2004
2.Appellate court proceedings
a)Public, but no drama
b)Based strictly on rulings and procedures of trial court
c)Courts usually convene in panels of three judges
d)Judges receive briefs: written arguments.
3.Precedents and making decisions
a)Opinion writing gives judges influence beyond the immediate case.
(1)Precedent: a judicial ruling that serves as the basis for the ruling in a subsequent case.
(2)Stare decisis: literally, “let the decision stand”; decision making according to a precedent.
b)Uniformity of law
(1)Court of appeals decisions ensure a measure of uniformity in application of national law.
(2)Regional character of courts of appeals undermines uniformity somewhat
(3)Law may be interpreted differently in different circuits
(4)Problem of conflicting circuit decisions can be corrected by Supreme Court
III.The Supreme Court
A.The Court’s task: balancing freedom, order, and equality
1.Flag burning as a form of political protest
a)Order (government’s interest in maintaining a peaceful society) versus freedom (an individual’s right to vigorous and unbounded political expression)
b)Supreme Court has affirmed constitutional protection of vigorous political expression
2.School desegregation
a)Equality (equal educational opportunities for minorities) versus freedom (parents’ interest in sending their children to neighborhood schools)
b)Brown v. Boardof Education (1954): focused on racial equality by striking down state-mandated segregation in public schools
c)2003: Fourteenth Amendment did not prohibit narrowly tailored use of race as a factor in law school admissions
B.Access to the Court
1.Source of cases
a)Original jurisdiction: the authority of a court to hear a case before any other court does.
(1)Constitution Article III, Section 2
(2)“All cases affecting Ambassadors, other public ministers and consuls, and those in which the state shall be a party”
(3)Most of these cases are referred to a special master.
b)Appellate jurisdiction: the authority of a court to hear cases that have been tried, decided, or reexamined in other courts.
(1)Congress gives Court appellate authority
(2)Conditions for Supreme Court review
(a)Case must have reached the end of the line in state court system
(b)Case must raise a federal question: an issue covered by the U.S. Constitution, national laws, or U.S. treaties
2.The Court exercises nearly complete control over its docket: a court’s agenda
a)Selects fewer than one hundred cases from over eight hundred requests filed each year
b)Petitions for certiorari: litigant asks court “to become informed” of lower-court proceedings
c)Rule of four: four or more justices agree a case warrants full consideration; Court then grants review.
C.The solicitor general
1.Plays a vital role in setting the Court’s agenda
2.Solicitor general: the third highest ranking official of the U.S. Department of Justice, and the one who represents the national government before the Supreme Court.
3.Duties of the solicitor general
a)Determining whether the government should appeal lower court decisions
b)Reviewing and modifying briefs filed in government appeals
c)Deciding whether the government should file amicus curiae briefs: briefs filed (with the permission of the court) by an individual or group that is not a party to a legal action but has an interest in it.
4.Roles of the solicitor general
a)Advocate for the president’s policies
b)Officer of the Court
c)Roles may conflict
5.Solicitor general is usually very constrained in recommending review or denial of review of a case
6.Maintains an impressive win record in Supreme Court
D.Decision making
1.Once Court grants review, attorneys submit written arguments (briefs)
2.Oral arguments usually follow
a)Seasoned attorneys enjoy a greater success rate.
b)Justices may debate each other obliquely through questions posed to attorney
3.The justices reach a tentative decision only after they have met in conference
4.The dynamics of decision making
a)Chief justice begins presentation of each case with discussion and his vote
b)In order of seniority, each justice presents discussion and votes.
c)Totals are added.
d)Case is assigned for opinion
5.Judicial restraint and judicial activism
a)Judicial restraint: a judicial philosophy whereby judges adhere closely to statutes and precedents in reaching their decisions.
b)Judicial activism: a judicial philosophy whereby judges interpret existing laws and precedents loosely and interject their own values in court decisions.
c)Describe different relative degrees of judicial assertiveness
d)Judicial activism can be either liberal or conservative.
6.Judgment and argument
a)Judgment: the judicial decision in a court case.
b)After voting, the justices in the majority draft an opinion setting out the reasons.
(1)Argument: the heart of a judicial opinion; its logical content is separated from facts, rhetoric, and procedure.
(2)If all justices agree with the judgment and reasons, the opinion is unanimous.
(3)Concurrence: the agreement of a judge with the court’s majority decision, for a reason other than the majority reason.
(4)Dissent: the disagreement of a judge with a majority decision.
(5)Both concurring and dissenting opinions may be drafted.
7.The Opinion
a)After the conference, the chief justice or senior justice in the majority assigns responsibility for the opinion.
b)Opinion-writing is justices’ most critical function
c)Writing judge distributes a draft to all justices
d)Opinion may have to be rewritten to accommodate colleagues
e)Justices can change their votes until decision is officially announced
f)Slip opinions: printed and electronic copies of the opinion, distributed at announcement of decision.
g)Justices in the majority may try to muffle dissent to encourage institutional cohesion.
E.Strategies on the Court
1.Should expect typical political behavior from the justices
2.Beliefs of most justices can be located on 2 x 2 typology (freedom versus order, freedom versus equality)
3.Justices vary in intellectual ability, advocacy skills, social graces, and other characteristics.
4.Justice may encourage appointment of like-minded colleagues to the Court.
F.The Chief Justice
1.Has several unique and important functions based upon the authority of the office
a)Forming the docket
b)Directing Court’s conferences
c)Can be a social leader, generating solidarity
d)Can embody intellectual leadership
e)Can provide policy leadership
2.May also control discussion of issues, though not likely to be successful
IV.Judicial recruitment
A.Appointment basics
1.Federal appointments
a)Neither Constitution nor national law imposes requirements for appointment
b)District and circuit court judges must reside within their jurisdiction.
c)President appoints all federal court nominees; all must be confirmed by Senate
d)Judicial compensation is substantially lower than that received by partners in major law firms.
2.State appointments
a)In more than half of states, governor appoints state judges
b)Voters in many states decide whether judges should be retained.
c)Other states select their judges by election.
d)Contested elections for judgeships are unusual.
B.The appointment of federal judges
1.Federal judges hold their appointments for life.
a)Presidential judicial appointments are a kind of political legacy.
b)Assumes president is free to appoint judges who favor his policies
c)Vacancies occur when judges resign, retire, or die, or when Congress creates new judgeships to handle increasing caseloads.