As Alexis de Tocqueville, a French commentator on American society in the 1800s, noted, "scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." Our judiciary forms part of our political process. The instant that judges interpret the law, they become actors in the political arena - policymakers working within a political institution.
The most important political force within our judiciary is the United States Supreme Court. The justices of the Supreme Court are not elected but rather appointed by the president and confirmed by the Senate. The same is true for all other federal court judges. Because Supreme Court justices are so important in our governmental system, it has been suggested that arguments before the Court should be televised.
How do courts make policy? Why do the federal courts play such an important role in American government? The answers to these questions lie, in part, in our colonial heritage. Most of American law is based on the English system, particularly the English common law tradition. In that tradition, the decisions made by judges constitute an important source of law. This chapter is an examination of this tradition and the various other sources of American law. It also looks at the federal court system - how it is organized, how its judges are selected, how these judges affect policy, and how they are restrained by our system of checks and balances.
SOURCES OF AMERICAN LAW
The body of American law includes the federal and state constitutions, statutes passed by legislative bodies, administrative law, and case law - the legal principles expressed in court decisions. Case law is based in part on the common law tradition, which dates to the earliest English settlements in North America.
The Common Law Tradition
In 1066, the Normans conquered England, and William the Conqueror and his successors began the process of unifying the country under their rule. One of the ways in which they did this was to establish king's courts. Before the conquest, disputes had been settled according to local custom. The king's courts sought to establish a common, or uniform, set of rules for the whole country. As the number of courts and cases increased, portions of the most important decisions of each year were gathered together and recorded in Year Books. Judges who were settling disputes similar to ones that had been decided before used the Year Books as the basis for their decisions. If a case was unique, judges had to create new rules, but they based their decisions on the general principles suggested by earlier cases. The body of judge-made law that developed under this system is still used today and is known as the common law.
The practice of deciding new cases with reference to former decisions - that is, according to precedent - became a cornerstone of the English and American judicial systems and is embodied in the doctrine of stare decisis (pronounced ster-ay dih-si-ses), a Latin phrase that means "to stand on decided cases." The doctrine of stare decisis obligates judges to follow the precedents set previously by their own courts or by higher courts that have authority over them.
For example, a lower state court in California would be obligated to follow a precedent set by the California Supreme Court. That lower court, however, would not be obligated to follow a precedent set by the supreme court of another state, because each state court system is independent. Of course, when the United States Supreme Court decides an issue, all of the nation's other courts are obligated to abide by the Court's decision - because the Supreme Court is the highest court in the land.
Constitutions
The constitutions of the federal government and the states set forth the general organization, powers, and limits of government. The U.S. Constitution is the supreme law of the land. A law in violation of the Constitution, no matter what its source, may be declared unconstitutional and thereafter cannot be enforced. Similarly, the state constitutions are supreme with their respective borders (unless they conflict with the U.S. Constitution or federal laws and treaties made in accordance with it). The Constitution thus defines the political playing field on which state and federal powers are reconciled.
Statutes and Administrative Regulations
Although the English common law provides the basis for both our civil and our criminal legal systems, statutes (laws enacted by legislatures) have become increasingly important in defining the rights and obligations of individuals. Federal statutes may relate to any subject that is a concern of the federal government and may apply to areas ranging from hazardous waste to federal taxation. State statutes include criminal codes, commercial laws, and laws covering a variety of other matters. Cities, counties, and other political bodies also pass statutes, which are called ordinances. These ordinances may deal with such issues as real estate zoning proposals and public safety.
Rules and regulations issued by administrative agencies are another source of law. Today, much of the work of the courts consists of interpreting these laws and regulations and applying them to the specific circumstances of the cases that come before the courts.
Case Law
Because we have a common law tradition, in which the doctrine of stare decisis plays an important role, the decisions rendered by the courts also form an important body of law, collectively referred to as case law. Case law includes judicial interpretations of common law principles and doctrines, as well as interpretations of constitutional provisions, statutes, and administrative agency regulations. It is up to the courts - and ultimately, if necessary, the Supreme Court - to decide what a constitutional provision or a statutory phrase means. In doing so, the courts, in effect, establish law.
Courts in many of the nations formerly governed or settled by Britain - Australia, Canada, Ireland, the United States, and others - exhibit some broad similarities. All make use of the common law, as well as statutes and administrative regulations. All share the basic judicial requirements that you will learn about shortly. In some lands formerly ruled by Britain, such as India, Nigeria, and Pakistan, the common law is supplemented by local traditional law.
Nations that do not share the common law tradition typically rely on statutory code alone, in what is called the civil law system. Judges under the civil law system are not bound by precedent in the way that judges are in the common law system. Should American judges be banned from considering "foreign" laws?
THE FEDERAL COURT SYSTEM
The United States has a dual court system, with state courts and federal courts. Each of the fifty states, as well as the District of Columbia, has its own independent system of courts. This means that there are fifty-two court systems in total.
Basic Judicial Requirements
Certain requirements must be met before a case can be brought before a court in any court system, state or federal. Two important requirements are jurisdiction and standing to sue.
Jurisdiction. A state court can exercise jurisdiction (the authority of a court to hear and decide a case) over the residents of a particular geographic area, such as county or district. A state's highest court, or supreme court, has jurisdictional authority over all residents within the state.
Because the Constitution established a federal government with limited powers, federal jurisdiction is also limited. Article III, Section 1, of the U.S. Constitution limits the jurisdiction of the federal courts to cases that involve either a federal question or diversity of citizenship. A federal question arises when a case is based, at least in part, on the U.S. Constitution, a treaty, or a federal law. A person who claims that her or his rights under the Constitution, such as the right to free speech, have been violated could bring a case in a federal court. Diversity of citizenship exists when the parties to a lawsuit are from different states or (more rarely) when the suit involves a U.S. citizen and a government or citizen of a foreign country. The amount in controversy must be at least $75,000 before a federal court can take jurisdiction in a diversity case, however.
Given the significant limits on federal jurisdiction, most lawsuits and criminal cases are heard in state, rather than federal, courts. A defendant or a party to a dispute handled by a state court may file an appeal with a state appeals court, or even the state's supreme court. Appeals cannot be taken to a federal court, however, unless there is a federal question at stake. A case could be brought in a federal court on the ground that a state court violated a person's constitutional rights. It is not possible to appeal to a federal court if an individual believes, for example, that the trial court has improperly applied state law to the case in question.
Standing to Sue. Another basic jurisdictional requirement is standing to sue, or a sufficient "stake" in a matter to justify bringing suit. The party bringing a lawsuit must have suffered a harm, or have been threatened by a harm, as a result of the action that led to the dispute in question. Standing to sue also requires that the controversy at issue be a justiciable controversy. A justiciable controversy is a controversy that is real and substantial, as opposed to hypothetical or academic. In other words, a court will not give advisory opinions on hypothetical questions.
Parties to Lawsuits
In most lawsuits, the parties are the plaintiff (the person or organization that initiates the lawsuit) and the defendant (the person or organization against whom the lawsuit is brought). There may be a number of plaintiffs and defendants in a single lawsuit. In the past several decades, many lawsuits have been brought by interest groups. Interest groups play an important role in our judicial system, because they litigate - bring to trial - or assist in litigating most cases of racial or gender-based discrimination, almost all civil liberties cases, and more than one-third of the cases involving business matters. Interest groups also file amicus curiae (pronounced ah-mee-kous kur-ee-eye) briefs, or "friend of the court" briefs, in more than 50 percent of these kinds of cases.
Sometimes, interest groups or other plaintiffs will bring a class-action suit, in which whatever the court decides will affect all members of a class similarly situated (such as users of a particular product manufactured by the defendant in the lawsuit). The strategy of class-action lawsuits was pioneered by such groups as the National Association for the Advancement of Colored People (NAACP), the Legal Defense Fund, and the Sierra Club, whose leaders believed that the courts would offer a more sympathetic forum for their views than would Congress.
Procedural Rules
Both the federal and the state courts have established procedural rules that shape the litigation process. These rules are designed to protect the rights and interests of the parties and to ensure that the litigation proceeds in a fair and orderly manner. The rules also serve to identify the issues that must be decided by the court - thus saving court time and costs. Court decisions may also apply to trial procedures. For example, the Supreme Court has held that the parties' attorneys cannot discriminate against prospective jurors on the basis of race or gender. Some lower courts have also held that people cannot be excluded from juries because of their sexual orientation or religion.
The parties must comply with procedural rules and with any orders given by the judge during the course of the litigation. When a party does not follow a court's order, the court can cite him or her for contempt. A party who commits civil contempt (failing to comply with a court's order for the benefit of another party to the proceeding) can be taken into custody, fined, or both, until that party complies with the court's order. A party who commits criminal contempt (obstructing the administration of justice or disrespecting the rules of the court) also can be taken into custody and fined but cannot avoid punishment by complying with a previous order.
The judiciary is no exception to government affected by technology. Today's courts post opinions and other information online. Increasingly, lawyers are expected to file court documents electronically. There is little doubt that in the future we will see more court business conducted online.
Types of Federal Courts
The federal court system is basically a three-tiered model consisting of (1) U.S. district courts and various specialized courts of limited jurisdiction, (2) intermediate U.S. courts of appeals, and (3) the United States Supreme Court.
U.S. District Courts. The U.S. district courts are trial courts. A trial court is what the name implies - a court in which trials are held and testimony is taken. The U.S. district courts are courts of general jurisdiction, meaning that they can hear cases involving a broad array of issues. Federal cases involving most matters typically are heard in district courts. The other courts on the lower tier are courts of limited jurisdiction, meaning that they can try cases involving only certain types of claims, such as tax claims or bankruptcy petitions.
There is at least one federal district court in every state. The number of judicial districts can vary over time owing to population changes and corresponding caseloads. Today, there are ninety-four federal judicial districts. A party who is dissatisfied with the decision of a district court can appeal the case to the appropriate U.S. court of appeals, or federal appellate court.
Many federal administrative agencies and most executive departments also employ administrative law judges who resolve disputes arising under the rules governing their agencies. For example, the Social Security Administration might hold a hearing to determine whether a specific class of individuals is entitled to collect a particular benefit. If all internal Social Security appeals processes have been exhausted, a party may have a right to file an appeal in a federal district court. Appeals from the decisions of other agencies may be heard by the district courts, the U.S. courts of appeals, or even a specialized federal court, depending on the agency.
U.S. Courts of Appeals. There are thirteen U.S. courts of appeals - also referred to as U.S. circuit courts of appeals. Twelve of these courts, including the U.S. Court of Appeals for the District of Columbia, hear appeals from the federal district courts located within their respective judicial circuits (geographic areas over which they exercise jurisdiction). The Court of Appeals for the Thirteenth Circuit, called the Federal Circuit, has national appellate jurisdiction over certain types of cases, such as cases involving patent law and those in which the U.S. government is a defendant.
Note that when an appellate court reviews a case decided in a district court, the appellate court does not conduct another trial. Rather, a panel of three or more judges reviews the record of the case on appeal, which includes a transcript of the trial proceedings, and determines whether the trial court committed an error. Usually, appellate courts do not look at questions of fact (such as whether a party did, in fact, commit a certain action, such as burning a flag) but at questions of law (such as whether the act of burning a flag is a form of speech protected by the First Amendment to the Constitution). An appellate court will challenge a trial court's finding of fact only when the finding is clearly contrary to the evidence presented at trial or when there is no evidence to support the finding.
A party can petition the United States Supreme Court to review an appellate court's decision. The likelihood that the Supreme Court will grant the petition is slim, however, because the Court reviews only a small percentage of the cases decided by the appellate courts. This means that decisions made by appellate courts usually are final.
LIST - Geographic Boundaries of U.S. Courts of Appeals
1 - Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island
2 - Connecticut, New York, Vermont
3 - Delaware, New Jersey, Pennsylvania
4 - Maryland, North Carolina, South Carolina, Virginia, West Virginia
5 - Louisiana, Mississippi, Texas
6 - Kentucky, Michigan, Ohio, Tennessee
7 - Illinois, Indiana, Wisconsin
8 - Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota
9 - Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, Washington
10 - Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming
11 - Alabama, Florida, Georgia
12 - District of Columbia (Washington, D.C.)
13 - Federal Circuit (Washington, D.C.)
United States Supreme Court. The highest level of the three-tiered model of the federal court system is the United States Supreme Court. When the Supreme Court came into existence in 1789, it had six justices. In the following years, more justices were added. Since 1869, there have been nine justices on the Court.
According to the language of Article III of the U.S. Constitution, there is only one national Supreme Court. All other courts in the federal system are considered "inferior." Congress is empowered to create other inferior courts as it deems necessary. The inferior courts that Congress has created include the district courts, the federal courts of appeals, and the federal courts of limited jurisdiction.
Although the Supreme Court can exercise original jurisdiction (that is, act as a trial court) in certain cases, such as those affecting foreign diplomats and those in which a state is a party, most of its work is as an appellate court. The Court hears appeals not only from federal appellate courts but also from the highest state courts. Note, though, that the United States Supreme Court can review a state supreme court decision only if a federal question is involved.
Federal Courts and the War on Terrorism
As noted, the federal court system includes a variety of trial courts of limited jurisdiction, dealing with matters such as tax claims or international trade. The government's attempts to combat terrorism have drawn attention to certain specialized courts that meet in secret.
The FISA Court. The federal government created the first secret court in 1978. In that year, Congress passed the Foreign Intelligence Surveillance Act (FISA), which established a court to hear requests for warrants for the surveillance of suspected spies. Officials can request a warrant without having to reveal to the suspect or to the public the information used to justify the warrant. The FISA court has approved almost all of the thousands of requests for warrants that officials have submitted. There is no public access to the court's proceedings or records. Hence, when the court authorizes surveillance, suspects normally do not even know that they are under scrutiny.
In the aftermath of the terrorist attacks on September 11, 2001, the George W. Bush administration expanded the powers of the FISA court. Previously, FISA had allowed secret domestic surveillance only if the "purpose" was to combat intelligence gathering by foreign powers. Amendments to FISA enacted after 9/11 changed this wording to "a significant purpose" - meaning that warrants may now be requested to obtain evidence that can be used in criminal trials.
Alien "Removal Courts." In 1996, Congress passed the Anti-Terrorism and Effective Death Penalty Act. The new law was a response to the bombing of a federal building in 1995 in Oklahoma City, which killed 168 people. Even though the perpetrators of this crime were white U.S. citizens whose motives were entirely domestic, the new law focused on noncitizens. For example, the act created an alien "removal court" to hear evidence against suspected "alien terrorists." The judges in this court rule on whether there is probable cause for deportation. If so, a public deportation proceeding is held in a U.S. district court. The prosecution does not need to follow procedures that normally apply in criminal cases. In addition, the defendant cannot see the evidence that the prosecution used to secure the hearing.
The Federal Courts and Enemy Combatants. After the 9/11 attacks, the U.S. military took custody of hundreds of suspected terrorists seized in Afghanistan and elsewhere and held them at Guantanamo Bay, Cuba. The detainees were classified as enemy combatants, and, according to the Bush administration, they could be held indefinitely. The administration also claimed that because the detainees were not prisoners of war, they were not protected under international laws governing the treatment of prisoners of war. The handling of the prisoners at Guantanamo has been a source of ongoing controversy. The United States Supreme Court held, first in 2004 and then in 2006, that the Bush administration's treatment of these detainees violated the U.S. Constitution.
In response to the Court's 2006 decision, Congress passed the Military Commissions Act of 2006. The act eliminated federal court jurisdiction over challenges by noncitizens held as enemy combatants based on habeas corpus, the right of a detained person to challenge the legality of his or her detention before a judge. In June 2008, the Court ruled that the provisions restricting the federal courts' jurisdictional authority over detainees' habeas corpus challenges were illegal. The decision gave Guantanamo detainees the right to challenge their detention in federal civil courts.
In 2009, the Obama administration abolished the category of enemy combatant and promised to close the Guantanamo prison. (As of January 2013, though, the prison remains open.) President Obama did not, however, move to try all of the detainees in U.S. civil courts. Under the Military Commissions Act of 2009, some of the prisoners were to be tried in a revised system of military commissions. Further, in May 2009, Obama claimed the right to detain certain accused terrorists indefinitely without trial. In May 2010, a federal appeals court ruled that the administration had the right to detain prisoners indefinitely at Bagram Air Base in Afghanistan because the prison is located on foreign soil and within a war zone.
THE SUPREME COURT AT WORK
The Supreme Court begins its regular annual term on the first Monday in October and usually adjourns in late June or early July of the next year. Special sessions may be held after the regular term ends, but only a few cases are decided in this way. More commonly, cases are carried over until the next regular session.
Of the total number of cases that are decided each year in U.S. courts, those reviewed by the Supreme Court represent less than one in four thousand. Included in these, however, are decisions that profoundly affect our lives. In recent years, the United States Supreme Court has decided issues involving freedom of speech, the right to bear arms, health-care reform, campaign finance, capital punishment, the rights of criminal suspects, affirmative action programs, religious freedom, abortion, sexual harassment, pornography, states' rights, and many other matters with significant consequences for the nation.
Because the Supreme Court exercises a great deal of discretion over the types of cases it hears, it can influence the nation's policies by issuing decisions in some types of cases and refusing to hear appeals in others, thereby allowing lower court decisions to stand. Indeed, the fact that George W. Bush assumed the presidency in 2001 instead of Al Gore, his Democratic opponent, was largely due to a Supreme Court decision to review a Florida court's ruling. The Supreme Court reversed the Florida court's order to recount manually the votes in selected Florida counties - a decision that effectively handed the presidency to Bush.
Which Cases Reach the Supreme Court?
Many people are surprised to learn that in a typical case, there is no absolute right of appeal to the United States Supreme Court. The Court's appellate jurisdiction is almost entirely discretionary - the Court chooses which cases it will decide. The justices never explain their reasons for hearing certain cases and not others, so it is difficult to predict which case or type of case the Court might select.
Factors That Bear on the Decision. A number of factors bear on the decision to accept a case. If a legal question has been decided differently by various lower courts, it may need resolution by the highest court. A ruling may be necessary if a lower court's decision conflicts with an existing Supreme Court ruling. In general, the Court considers whether the issue could have significance beyond the parties to the dispute.
Another factor is whether the solicitor general is asking the Court to take a case. The solicitor general, a high-ranking presidential appointee within the Justice Department, represents the national government before the Supreme Court and promotes presidential policies in the federal courts. He or she decides what cases the government should ask the Supreme Court to review and what position the government should take in cases before the Court.
Granting Petitions for Review. If the Court decides to grant a petition for review, it will issue a writ of certiorari (pronounced sur-shee-uh-rah-ree). The writ orders a lower court to send the Supreme Court a record of the case for review. The vast majority of the petitions for review are denied. A denial is not a decision on the merits of a case, nor does it indicate agreement with the lower court's opinion. (The judgment of the lower court remains in force, however.) Therefore, denial of the writ has no value as a precedent. The Court will not issue a writ unless at least four justices approve of it. This is called the rule of four.
Court Procedures
Once the Supreme Court grants certiorari in a particular case, the justices do extensive research on the legal issues and facts involved in the case. (Of course, some preliminary research is necessary before deciding to grant the petition for review.) Each justice is entitled to four law clerks, who undertake much of the research and preliminary drafting necessary for the justice to form an opinion.
The Court normally does not hear any evidence, as is true with all appeals courts. The Court's consideration of a case is based on the abstracts, the record, and the briefs. The attorneys are permitted to present oral arguments. Unlike the practice in most courts, lawyers addressing the Supreme Court can be (and often are) questioned by the justices at any time during oral arguments. All statements and the justices' questions during oral arguments are recorded.
The justices meet to discuss and vote on cases in conferences held throughout the term. In these conferences, in addition to deciding cases already before the Court, the justices determine which new positions for certiorari to grant. These conferences take place in the oak-paneled chamber and are strictly private - no stenographers, audio recorders, or video cameras are allowed.
Decisions and Opinions
When the Court has reached a decision, its opinion is written. The opinion contains the Court's ruling on the issue or issues presented, the reasons for its decision, the rules of law that apply, and other information. In many cases, the decision of the lower court is affirmed, resulting in the enforcement of that court's judgment or decree. If the Supreme Court believes that the lower court made the wrong decision, however, the decision will be reversed. Sometimes the case will be remanded (sent back to the court that originally heard the case) for a new trial or other proceeding. For example, a lower court might have held that a party was not entitled to bring a lawsuit under a particular law. If the Supreme Court holds to the contrary, it will remand (send back) the case to the trial court with instructions that the trial go forward.
The Court's written opinion sometimes is unsigned; this is called an opinion per curiam ("by the court"). Typically, the Court's opinion is signed by all the justices who agree with it. When in the majority, the chief justice decides who writes the opinion and may choose to write it personally. When the chief justice is in the minority, the senior justice on the majority side assigns the opinion.
Types of Opinions. When all justices unanimously agree on an opinion, the opinion is written for the entire Court (all the justices) and can be deemed a unanimous opinion. When there is not a unanimous opinion, a majority opinion is written, outlining the views of the majority of the justices involved in the case. Often, one or more justices who feel strongly about making or emphasizing a particular point that is not made or emphasized in the majority written opinion will write a concurring opinion. That means the justice writing the concurring opinion agrees (concurs) with the conclusion given in the majority written opinion but wants to make or clarify a particular point or to voice disapproval of the grounds on which the decision was made.
Finally, in other than unanimous opinions, one or more dissenting opinions are usually written by those justices who do not agree with the majority. The dissenting opinion is important because it often forms the basis of the arguments used years later if the Court reverses the previous decision and establishes a new precedent.
Publishing Opinions. Shortly after the opinion is written, the Supreme Court announces its decision from the bench. The clerk of the Court also releases the opinion for online publication. Ultimately, the opinion is published in the United States Reports, which is the official printed record of the Court's decisions.
The Court's Dwindling Caseload. Some have complained that the Court reviews too few cases each term, thus giving the lower courts insufficient guidance on important issues. Indeed, the number of signed opinions issued by the Court has dwindled notably since the 1980s. For example, in its 1982-1983 term, the Court issued signed opinions in 151 cases. By the early 2000s, this number had dropped to between 70 and 80 per term. In the term ending in June 2012, the number was 77.
THE SELECTION OF FEDERAL JUDGES
All federal judges are appointed. The Constitution, in Article II, Section 2, states that the president is to appoint the justices of the Supreme Court with the advice and consent of the Senate. Congress has established the same procedure for staffing other federal courts. This means that the Senate and the president jointly decide who shall fill every vacant judicial position, no matter what the level.
There are currently 874 federal judicial posts at all levels, although at any given time many of these positions are vacant. Once appointed to a federal judgeship, a person holds that job for life. Judges serve until they resign, retire voluntarily, or die. Federal judges who engage in blatantly illegal conduct may be removed through impeachment, although such action is rare.
In contrast to federal judges, many state judges - including the judges who sit on state supreme courts - are chosen by the voters in elections. Inevitably, judicial candidates must raise campaign funds. What arguments favor the election of judges? What problems can such a system create?
Judicial Appointments
Candidates for federal judgeships are suggested to the president by the Department of Justice, senators, other judges, the candidates themselves, and lawyers' associations and other interest groups. In selecting a candidate to nominate for a judgeship, the president considers not only the person's competence but also other factors, including the person's political philosophy, ethnicity, and gender.
The nomination process - no matter how the nominees are obtained - always works the same way. The president makes the actual nomination, submitting the name to the Senate. To reach a conclusion, the Senate Judiciary Committee (operating through subcommittees) invites testimony, both written and oral, as its various hearings. The Senate then either confirms or rejects the nomination.
Federal District Court Judgeship Nominations. Although the president officially nominates federal judges, in the past the nomination of federal district court judges actually originated with a senator or senators of the president's party from the state in which there was a vacancy (if such a senator existed). In effect, judicial appointments were a form of political patronage. President Jimmy Carter (1977-1981) ended this tradition by establishing independent commissions to oversee the initial nomination process. President Ronald Reagan (1981-1989) abolished Carter's nominating commissions and established complete presidential control of nominations.
A practice used in the Senate, called senatorial courtesy, is a constraint on the president's freedom to appoint federal district judges. Senatorial courtesy allows a senator of the president's political party to veto a judicial appointment in her or his state. During much of American history, senators from the "opposition" party (the party to which the president does not belong) have also enjoyed the right of senatorial courtesy, although their veto power has varied over time.
In 2000, Orrin Hatch, Republican chair of the Senate Judiciary Committee, announced that the opposition party (at that point, the Democrats) would no longer be able to invoke senatorial courtesy. When the Democrats took over the Senate following the elections of 2006, Senator Patrick J. Leahy (D., Vt.), chair of the Judiciary Committee, let it be known that the old bipartisan system of senatorial courtesy would return. Of course, the Republicans, who were now in the minority, were unlikely to object to a nomination submitted by Republican president George W. Bush, and the old practices did not become truly effective until Democratic president Barack Obama took office.
Federal Courts of Appeals Appointments. There are many fewer appointments to the federal courts of appeals than federal district court appointments, but they are more important. Federal appellate judges handle more important matters, and therefore presidents take a keener interest in the nomination process for such judgeships. Also, the U.S. courts of appeals have become "stepping-stones" to the Supreme Court.
Supreme Court Appointments. The president nominates Supreme Court justices. The most common occupational background of the justices at the time of their appointment has been private legal practice or state or federal judgeship. Those nine justices who were in federal executive posts at the time of their appointment held the high offices of secretary of State, comptroller of the Treasury, secretary of the Navy, postmaster general, secretary of the Interior, chairman of the Securities and Exchange Commission, and secretary of Labor. Two justices were professors of law (including William H. Taft, a former president) and one justice who was a North Carolina state employee with responsibility for organizing and revising the state's statutes.
TABLE - Background of United States Supreme Court Justices to 2013
The Special Role of the Chief Justice. The chief justice is not only the head of a group of nine justices who interpret the law. In essence, he or she is also the chief executive officer of a large bureaucracy that includes more than one thousand judges with lifetime tenure, hundreds of magistrates and bankruptcy judges with limited tenure, and a staff of about thirty thousand.
The chief justice is the chair of the Judicial Conference of the United States; a policymaking body that sets priorities for the federal judiciary. This position means that the chief justice indirectly oversees that group's $6 billion budget.
Finally, the chief justice appoints the director of the Administrative Office of the United States Courts. The chief justice and the director select judges who sit on judicial committees that examine international judicial relations, technology, and a variety of other topics.
Partisan and Judicial Appointments. In most circumstances, the president appoints judges or justices who belong to the president's own political party. Presidents see their federal judiciary appointments as the one sure way to institutionalize their political views long after they have left office. By 1993, for example, Presidents Ronald Reagan and George H. W. Bush together had appointed nearly three-quarters of all federal court judges. The preponderance of Republican-appointed federal judges strengthened the legal moorings of the conservative social agenda on a variety of issues, ranging from abortion to civil rights. President Bill Clinton, a Democrat, had the opportunity to appoint 371 federal district and appeals court judges, thereby shifting the ideological makeup of the federal judiciary. George W. Bush appointed 322 federal district and appeals court judges, again ensuring a majority of Republican-appointed judges in the federal courts.
Appointments by Bush. President George W. Bush also had the opportunity to fill two Supreme Court vacancies - those left by the death of Chief Justice William Rehnquist and by the retirement of Justice Sandra Day O'Connor. Bush appointed two conservatives to these positions - John G. Roberts, Jr., who became chief justice, and Samuel Alito, Jr., who replaced O'Connor. The appointment of Alito, in particular, strengthened the rightward movement of the Court that had begun years before with the appointment of Rehnquist as chief justice. This was because Alito was a reliable member of the Court's conservative wing, whereas O'Connor had been a "swing voter."
Appointments by Obama. President Barack Obama had two opportunities to fill Supreme Court vacancies in the first two years of his term. The vacancies resulted from the retirement of Justices David Souter and John Paul Stevens. Both had been members of the Court's so-called liberal wing, so Obama's appointments did not change the ideological balance of the Court. Obama chose two women: Sonia Sotomayor, who had been an appeals court judge and was the Court's first Hispanic member, and Elena Kagan, who had been Obama's solicitor general.
The Senate's Role
Ideology also plays a large role in the Senate's confirmation hearings, and presidential nominees to the Supreme Court have not always been confirmed. In fact, almost 20 percent of presidential nominations to the Supreme Court have either been rejected or not acted on by the Senate. There have been many acrimonious battles over Supreme Court appointments when the Senate and the president have not seen eye to eye about political matters.
Confirming Supreme Court Appointments. The U.S. Senate had a long record of refusing to confirm the president's judicial nominations from the beginning of Andrew Jackson's presidency in 1829 to the end of Ulysses Grant's presidency in 1877. From 1894 until 1968, however, only three nominees were not confirmed. Then, from 1968 through 1987, four presidential nominees to the highest court were rejected.
The Bork Confirmation Battle. One of the most memorable of these rejections was the Senate's refusal to confirm Robert Bork in 1987. President Reagan named Bork, a federal appeals court judge, to succeed Justice Lewis Powell, a moderate. Bork's record, in contrast, was highly conservative. He was on record as wanting to roll back civil rights decisions issued under Chief Justice Earl Warren and Warren Burger, and he had argued that the Constitution does not contain a general right to privacy.
On the floor of the Senate, Democrat Ted Kennedy of Massachusetts, a leader of the liberal forces, issued a scathing condemnation of Bork's record. Bork responded, "There was not a line in that speech that was accurate." The damage was done, however, and eventually the Senate rejected the nomination. In time, the seat went to Anthony Kennedy, who sits on the Court to this day. Bork became a political slang term meaning "systematic political vilification." Many observers believe that the Bork confirmation fight was a turning point, and that succeeding confirmations would be at continual risk of turning into major political showdowns.
Later Supreme Court Appointments. Another controversial Supreme Court appointment was that of Judge Clarence Thomas. Named by President George H. W. Bush in 1991, Thomas underwent an extremely volatile confirmation hearing, replete with charges against him of sexual harassment. He was ultimately confirmed by the Senate, however.
President Clinton had little trouble gaining approval for both of his nominees to the Supreme Court: Ruth Bader Ginsburg and Stephen G. Breyer. President George W. Bush's nominees faced hostile grilling in their confirmation hearings, however, and Bush was forced to withdraw the nomination of White House counsel Harriet Miers when it became clear she would not be confirmed.
Lower Court Appointments. Presidents have often had great trouble with appointments to district and appeals courts. For an extended period during the presidency of Bill Clinton, the Republican majority in Congress adopted a strategy of trying to block almost every action taken by the administration - including judicial appointments.
The modern understanding that sixty votes are required before the Senate will consider a major measure has given the minority party significant power as well. After 2000, the Democratic minority in the Senate was able to hold up many of George W. Bush's more controversial judicial appointments. Frustrated Republican senators threatened to use the "nuclear option," under which Senate rules would be revised to disallow filibusters against judicial nominees. In the end, a bipartisan group engineered a compromise to preserve the filibuster.
President Obama also had considerable difficulty in getting his judicial candidates approved by the Senate. This was especially true after the 2010 elections, when a number of newly elected Republicans replaced Democratic senators.
POLICYMAKING AND THE COURTS
The partisan battles over judicial appointments reflect an important reality in today's American government: the importance of the judiciary in national politics. Because appointments to the federal bench are for life, the ideology of judicial appointees can affect national policy for years to come. Although the primary function of judges in our system of government is to interpret and apply the laws, inevitably judges make policy when carrying out this task. One of the major policymaking tools of the federal courts is their power of judicial review.
Judicial Review
Judicial review enables the judicial branch to act as a check on the other two branches of government, in line with the system of checks and balances established by the U.S. Constitution.
The power of judicial review is not mentioned in the Constitution, however. Rather, it was established by the United States Supreme Court's decision in Marbury v. Madison. In that case, in which the Court declared that a law passed by Congress violated the Constitution, the Court claimed such a power for the judiciary:
"It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to a particular case must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each."
If a federal court declares that a federal or state law or policy is unconstitutional, the court's decision affects the application of the law or policy only within that court's jurisdiction. For this reason, the higher the level of the court, the greater the impact of the decision on society. Because of the Supreme Court's national jurisdiction, its decisions have the greatest impact. For example, when the Supreme Court held that an Arkansas state constitutional amendment limiting the terms of congresspersons was unconstitutional, laws establishing term limits in twenty-three other states were also invalidated.
Judicial Activism and Judicial Restraint
Judicial scholars like to characterize different judges and justices as being either "activist" or "restraintist."
Judicial Activism. The doctrine of judicial activism rests on the conviction that the federal judiciary should take an active role by using its powers to check the activities of Congress, state legislatures, and administrative agencies when those governmental bodies exceed their authority. One of the Supreme Court's most activist eras was the period from 1953 to 1969, when the Court was headed by Chief Justice Earl Warren. The Warren Court propelled the civil rights movement forward by holding, among other things, that laws permitting racial segregation violated the equal protection clause.
Judicial Restraint. In contrast, the doctrine of judicial restraint rests on the assumption that the courts should defer to the decisions made by the legislative and executive branches, because members of Congress and the president are elected by the people, whereas members of the federal judiciary are not. Because administrative agency personnel normally have more expertise than the courts do in the areas regulated by the agencies, the courts likewise should defer to agency rules and decisions. In other words, under the doctrine of judicial restraint, the courts should not thwart the implementation of legislative acts and agency rules unless they are clearly unconstitutional.
Political Implications. In the past, judicial activism was often linked with liberalism, and judicial restraint with conservatism. In fact, though, a conservative judge can be activist, just as a liberal judge can be restraintist. In the 1950s and 1960s, the Supreme Court was activist and liberal. Some observers believe that the Rehnquist Court, with its conservative majority, became increasingly activist over time.
After the initial election of Democrat Barack Obama as president, some suggested that the Court's conservative wing became still more activist in its approach to judicial interpretation. The Citizens United v. Federal Election Commission decision, in which the Court struck down long-standing campaign finance laws, lends credence to this view. Some observers believed that the Court was stepping back from conservative judicial activism when it upheld most of Obama's health-care reform legislation in June 2012. Others, however, note that the Court also blocked the attempt by Congress to force states to expand the Medicaid program. This step was an innovation in limiting the power of Congress.
Strict versus Broad Construction
Other terms that are often used to describe a justice's philosophy are strict construction and broad construction. Justices who believe in strict construction look to the "letter of the law" when they attempt to interpret the Constitution or a particular statute. Those who favor broad construction try to determine the context and purpose of the law.
As with the doctrines of judicial restraint and judicial activism, strict construction is often associated with conservative political views, whereas broad construction is often linked with liberalism. These traditional political associations sometimes appear to be reversed, however. Consider the Eleventh Amendment to the Constitution, which rules out lawsuits in federal courts "against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." Nothing is said about citizens suing their own states, and strict construction would therefore find such suits to be constitutional. Conservative justices, however, have construed this amendment broadly to deny citizens the constitutional right to sue their own states in most circumstances. John T. Noonan, Jr., a federal appellate court judge who was appointed by a Republican president, has described these rulings as "adventurous."
Broad construction is often associated with the concept of a "living constitution." Supreme Court justice Antonin Scalia, in contrast, has said that "the Constitution is not a living organism, it is a legal document. It says something and doesn't say other things." Scalia believes that jurists should stick to the plain text of the Constitution "as it was originally written and intended."
The Rehnquist Court
William H. Rehnquist, who died in 2005, became the sixteenth chief justice of the Supreme Court in 1986. He was known as a strong anchor of the Court's conservative wing. The rightward movement, which began shortly after Rehnquist became chief justice, continued as other conservative appointments to the bench were made during the Reagan and George H. W. Bush administrations.
Interestingly, some previously conservative justices showed a tendency to "migrate" to a more liberal view of the law. Sandra Day O'Connor, the first female justice, gradually shifted to the left on a number of issues, including abortion. Generally, O'Connor and Justice Anthony Kennedy provided the "swing votes" on the Rehnquist Court.
Although the Court moved to the right during the Rehnquist era, it was closely divided in many cases. Consider the Court's ruling on states' rights. In 1995, the Court held, for the first time in sixty years, that Congress had overreached its powers under the commerce clause when it attempted to regulate the possession of guns in school zones. According to the Court, the possession of guns in school zones had nothing to do with the commerce clause. Yet in a 2005 case, the Court ruled that Congress's power to regulate commerce allowed it to ban marijuana use even when a state's law permitted such use and the growing and use of the drug were strictly local in nature. What these two rulings had in common was that they supported policies generally considered to be conservative - the right to possess firearms on the one hand, and a strong line against marijuana on the other.
The Roberts Court
John Roberts became chief justice in 2005, following the death of Chief Justice Rehnquist. Replacing one conservative chief justice with another did not immediately change the Court's ideological balance. The real change came in January 2006, when Samuel Alito replaced Sandra Day O'Connor. Unlike O'Connor, Alito was firmly in the conservative camp. This fact had consequences. In a 2007 case, for example, the Court upheld a 2003 federal law banning partial birth abortion, by a close (five-to-four) vote. The Supreme Court's conservative drift continued in the following years. In 2008, for example, the Court established the right of individuals to own guns for private use, and it upheld lethal injection as an execution method.
In 2010, the Court issued two major opinions, both of which were major victories for the political right. In Citizens United v. Federal Election Commission, the Court struck down long-standing campaign finance laws. A second major ruling was McDonald v. Chicago, in which the Court held that all state and local governments are bound to recognize the right to bear arms as an individual right. In these and other key cases, Justice Kennedy continued to cast the deciding vote.
Although the Roberts Court is widely characterized as conservative, its philosophy is not identical with the conservatism of the Republicans in Congress or the broader conservative movement. True, justices such as Scalia and Thomas can rightly be characterized as movement conservatives. Justice Kennedy and even Chief Justice Roberts, however, clearly "march to their own drummer." As one example, the Court has shown a degree of sympathy for the rights of gay men and lesbians that cannot be found in the Republican Party platform. It was Justice Kennedy, after all, who in 2003 wrote the opinion in Lawrence v. Texas striking down laws that ban gay sex nationwide. Chief Justice Roberts demonstrated his independence in 2012 by authoring the opinion that affirmed the constitutionality of Obamacare.
WHAT CHECKS OUR COURTS?
Our judicial system is one of the most independent in the world. But the courts do not have absolute independence, for they are part of the political process. Political checks limit the extent to which courts can exercise judicial review and engage in an activist policy. These checks are exercised by the executive branch, the legislature, the public, and, finally, the judiciary itself.
Executive Checks
President Andrew Jackson was once supposed to have said, after Chief Justice John Marshall made an unpopular decision, "John Marshall has made his decision; now let him enforce it." This purported remark goes to the heart of judicial implementation - the enforcement of judicial decisions in such a way that those decisions are translated into policy. The Supreme Court simply does not have any enforcement powers, and whether a decision will be implemented depends on the cooperation of the other two branches of government. Rarely, though, will a president refuse to enforce a Supreme Court decision, as President Jackson did. To take such an action could mean a significant loss of public support and could even lead to impeachment hearings in the House. More commonly, presidents exercise influence over the judiciary by appointing new judges and justices as federal judicial seats become vacant.
Executives at the state level may also refuse to implement court decisions with which they disagree. A notable example of such a refusal occurred in Arkansas after the Supreme Court ordered schools to desegregate "with all deliberate speed" in 1955. Arkansas governor Orval Faubus refused to cooperate with the decision and used the state's National Guard to block the integration of Central High School in Little Rock. Ultimately, President Dwight Eisenhower had to federalize the Arkansas National Guard and send federal troops to Little Rock to quell the violence that had erupted.
Legislative Checks
Courts may make rulings, but often the legislatures at local, state, and federal levels are required to appropriate funds to carry out the courts' rulings. A court, for example, may decide that prison conditions must be improved, but it is up to the legislature to authorize the funds necessary to carry out the ruling. When such funds are not appropriated, the court that made the ruling, in effect, has been checked.
Constitutional Amendments. Courts' rulings can be overturned by constitutional amendments at both the federal and the state levels. For example, the Sixteenth Amendment to the U.S. Constitution, ratified in 1913, overturned a United States Supreme Court ruling that found the income tax to be unconstitutional. Proposed constitutional amendments to reverse court decisions on school prayer, abortion, and same-sex marriage have failed.
Rewriting Laws. Finally, Congress or a state legislature can rewrite (amend) old laws or enact new ones to overturn a court's rulings if the legislature concludes that the court is interpreting laws or legislative intentions erroneously. For example, in 2009 Congress passed (and President Obama signed) the Lilly Ledbetter Fair Pay Act, which resets the statute of limitations for filing an equal-pay lawsuit each time an employer issues a discriminatory paycheck. The law was a direct answer to Ledbetter v. Goodyear, in which the Supreme Court held that the statute of limitations begins on the date the pay was agreed upon, not the date of the most recent paycheck. The new legislation made it much easier for employees to win pay-discrimination lawsuits.
The states can also negate or alter the effects of Supreme Court rulings, when such decision allow it. A good case in point is Kelo v. City of New London. In that case, the Supreme Court allowed a city to take private property for redevelopment by private businesses. Since that case was decided, a majority of states have passed legislation limiting or prohibiting such actions.
Public Opinion
Public opinion plays a significant role in shaping government policy, and certainly the judiciary is not excepted from this rule. For one thing, persons affected by a Supreme Court decision that is contrary to their views may simply ignore it. Officially sponsored prayers were banned in public schools in 1962, yet it was widely known that the ban was (and still is) ignored in many southern and rural districts. What can the courts do in this situation? Unless someone complains about the prayers and initiates a lawsuit, the courts can do nothing.
Additionally, the courts themselves necessarily are influenced by public opinion to some extent. After all, judges are not "islands" in our society. Their attitudes are influenced by social trends, just as the attitudes and beliefs of all persons are. Courts generally tend to avoid issuing decisions that they know will be noticeably at odds with public opinion. In part, this is because the judiciary, as a branch of the government, prefers to avoid creating divisiveness among members of the public.
Also, a court - particularly the Supreme Court - may lose stature if it decides a case in a way that markedly diverges from public opinion. For example, in 2005 the Supreme Court ruled that the execution of persons who were under the age of eighteen when they committed their crimes violates the Eighth Amendment's ban on cruel and unusual punishment. In its ruling, the Court indicated that the standards of what constitutes cruel and unusual punishment are influenced by public opinion and that today our society views juvenile offenders as less culpable than the average criminal.
Judicial Traditions and Doctrines
Supreme Court justices (and other federal judges) typically exercise self-restraint in fashioning their decisions. In part, this restraint stems from their knowledge that the other two branches of government and the public can exercise checks on the judiciary, as previously discussed. To a large extent, however, this restraint is mandated by various judicially established traditions and doctrines. For example, in exercising its discretion to hear appeals, the Supreme Court will not hear a meritless appeal just so it can rule on the issue.
Also, when reviewing a case, the Supreme Court typically narrows its focus to just one issue or one aspect of an issue involved in the case. The Court rarely makes broad, sweeping decisions on issues. Furthermore, the doctrine of stare decisis acts as a restraint because it obligates the courts, including the Supreme Court, to follow established precedents when deciding cases. Only rarely will courts overrule a precedent.
Hypothetical and Political Questions. Other judicial doctrines and practices also act as restraints. As already mentioned, the courts will hear only what are called justiciable disputes - disputes that arise out of actual cases. In other words, a court will not hear a case that involves a merely hypothetical issue.
Additionally, if a political question is involved, the Supreme Court often will exercise judicial restraint and refuse to rule on the matter. A political question is one that the Supreme Court declares should be decided by the elected branches of government - the executive branch, the legislative branch, or those two branches acting together. For example, the Supreme Court has refused to rule on whether women in the military should be allowed to serve in combat units, preferring instead to defer to the executive branch's decisions on the matter. Generally, though, fewer questions are deemed political questions by the Supreme Court today than in the past.
The Impact of the Lower Courts. Higher courts can reverse the decisions of lower courts. Lower courts can act as a check on higher courts, too. Lower courts can ignore - and have ignored - Supreme Court decisions. Usually, they do so indirectly. A lower court might conclude, for example, that the precedent set by the Supreme Court does not apply to the exact circumstances in the case before the court. Alternatively, the lower court may decide that the Supreme Court's decision was ambiguous with respect to the issue before the lower court. The fact that the Supreme Court rarely makes broad and clear-cut statements on any issue makes it easier for lower courts to interpret the Supreme Court's decisions in different ways.
DID YOU KNOW?
-The Supreme Court was not provided with a building of its own until 1935, in the 146th year of its existence.
-Before they take their seats on the bench, each justice shakes hands with the others. This practice began with Chief Justice Melville W. Fuller in the late 1800s as a way to remind justices that, although they may have differences of opinion, they share a common purpose.
-Jimmy Carter is the only president to serve a full term without nominating a Supreme Court justice.
-A proclamation by President George Washington and a congressional resolution established the first national Thanksgiving Day on November 26, 1789. The reason for the holiday was to give thanks for the new Constitution.
-Justice Byron ("Whizzer") White (1962-1993) is the only Supreme Court justice to be in the College Football Hall of Fame.