Lecture Outline: Chapter 13
Courts, Judges, and the Law
I.
Although Americans place great faith in the judicial system, assuming that it can solve
almost any problem, most know very little about it, and its workings remain shrouded in
symbolism and myth.
A. The most widespread of the myths surrounding the judiciary is the myth of the
nonpolitical courts.
1. Courts are contrasted with the political world of compromise and partisanship.
The myth tells us that members of Congress may act out of political interest, but
judges just apply the law.
2. Although the myth may be comforting, the reality is that American courts are
political institutions.
B. Understanding of the judicial system is also obscured by a second myth: the myth of
finality.
1. According to this myth, once a court, particularly the Supreme Court, has spoken,
its decision is implemented.
2. In reality, final authority does not rest with the judiciary. Court decisions are not
self-executing. On the contrary, court orders become effective only with the aid
of other participants in the political system.
II.
Before turning to the discussion of courts, it may be helpful to distinguish the sources and
types of law used in the American system.
A. The oldest type of law, the common law, is judge-made law. In using the common
law, judges rely heavily on precedent.
B. A more recent source of law is statutory law, which originates from specifically
designated law-making bodies such as Congress or state legislatures.
C. Law may also be distinguished by whether it is civil or criminal.
1. Civil law involves disputes between private persons or organizations. Typical of
civil law conflicts are those arising over the enforcement of contracts.
2. Criminal law, on the other hand, entails offenses against the public order. The
prosecution is the local, state, or national government, depending on what
criminal laws were violated.
III.
There are over 18,000 courts in the United States, most of which are the creations of the
states. When we discuss judicial systems, it is important to note that there are 52 different
systems, one for each state, one for the District of Columbia, plus the federal court
system.
A. Despite significant differences in organizational style, all American court systems
have two types of courts.
1. Trial courts, or courts of first instance, are the first courts empowered to hear
cases. These are the courts that listen to testimony and receive evidence. Trial
court decisions may, depending on the defendant’s preference, be made by a
single judge (a bench trial) or by a jury.
2. Appellate courts, on the other hand, have the responsibility of reconsidering
decisions made by the trial courts. Appellate courts do not make use of juries; a
panel of judges makes the decisions.
B. The Constitution created only the Supreme Court and left it to Congress to create
inferior courts. This silence on the inferior courts was a product of the dispute
between the Federalists and the Antifederalists at the Constitutional Convention. The
C.
D.
E.
F.
G.
latter were concerned that a federal court system would threaten state power. The
first Congress under the new Constitution created a federal judicial system composed
of three layers.
The lowest level of the federal court system is the district courts.
1. As the trial courts for the federal system, the district courts hear trials in all
federal criminal and civil cases.
2. There are 94 district courts distributed across the 50 states, the District of
Columbia, and the territories. It is important to know that no district court crosses
a state boundary, and each is contained within a single state. Thus, even though
they are federal courts, they have a distinctly local flavor.
3. There are 632 district court judges, but the number assigned to each district
varies greatly. Congress decides how many judges are assigned to a district.
4. Although the district courts may seem like the least important courts in the
federal system, for most litigants their decision is the final decision.
The courts of appeals are the major appellate courts in the federal system.
1. They review the decisions of the district courts and the independent regulatory
commissions.
2. There are 12 U.S. courts of appeals, one for the District of Columbia and 11
others covering regional groupings of states, called circuits.
3. A thirteenth court of appeals, the U.S. court of appeals for the federal circuit,
handles only cases involving patent issues.
4. Ordinarily, the courts of appeals hear cases in revolving panels of three judges.
Even though the Constitution created a Supreme Court, it said very little about its
makeup or duties.
1. Today the Court is composed of eight associate justices and a chief justice. The
question of the size of the Court is determined by congressional legislation.
2. The Constitution spells out the Court’s original jurisdiction, but this constitutes
only a small part of the workload.
3. The chief labor of the Court is appellate review, which, according to the
Constitution, is defined by Congress. Under the provisions of the Judiciary Act of
1925, the Court has tremendous discretion to determine which cases it will hear.
4. The vast majority (approximately 90 percent) of the appeals to the Supreme
Court take the form of a writ of certiorari. These writs are purely discretionary.
The Court accepts such cases for review if four justices agree to consider the
case—this is called the rule of four.
5. Each year, more than 95 percent of the writs are rejected, usually without
explanation.
6. Cases can also come to the Court on appeal, which states that the litigants have
some right under law to have their cases reviewed. In practice, these cases are
treated in the same discretionary manner as certiorari.
7. The Court’s ability to screen cases without explanation allows the justices to
carefully select the cases that advance their policy views.
Congress has also created a few specialized courts of limited jurisdiction to hear
cases requiring substantial expertise in a given area. An example of a specialized
court is the U.S Foreign Intelligence Surveillance Court, created to adjudicate
requests for wiretaps designed to secretly obtain evidence against foreign
governments or suspected agents of foreign governments.
Although the structure of state court systems differs considerably, there are certain
similarities.
1. For instance, all states have an appellate court that serves as the highest tribunal.
The highest court is most often called the supreme court, but this is not always
the case.
2. More than half the states also use intermediate appellate courts.
3. Most states also have two types of trial courts. Trial courts of limited jurisdiction
are empowered to hear only a narrowly defined class of cases. Trial courts of
general jurisdiction, on the other hand, have authority over a broader class of
cases: all civil cases involving a nontrivial amount, or all criminal cases
involving serious offenses.
H. The existence of so many court systems obviously complicates matters and provides
litigants with the opportunity to choose among different courts, sometimes called
forum shopping.
1. This complexity is heightened by the possibility of federal diversity cases, which
allows the federal district courts to hear civil cases involving citizens of different
states contesting sums larger than $75,000. In creating diversity jurisdiction,
Congress did not deny jurisdiction over these cases to the states but simply added
another level.
2. Once a case has been tried, it must be appealed within the same system. A
decision of the state’s highest appellate court may be appealed to the U.S.
Supreme Court, but only if it involves an interpretation of the Constitution, a
treaty, or a federal law.
3. Decisions of a court in one state may not be appealed to another state.
IV.
Unlike many other nations (such as Italy, Japan, or Korea), the United States does not
require special training to become a judge. Even a law degree is not constitutionally or
statutorily required of federal judges. Although somewhat overstated, the old saying that
a judge is a lawyer who knew a senator or governor reflects the political nature of judicial
selection.
A. According to Article II of the Constitution, the president nominates and, with the
advice and consent of the Senate, appoints justices to the Supreme Court and, by
extension, the inferior courts. This description does not do justice to the complexity
of the selection process, however.
B. Usually the president is not directly involved in the selection of district court judges.
General guidelines are provided to the Department of Justice, which carries the bulk
of the responsibility for recruitment at this level.
1. Constitutionally, nomination is the president’s responsibility, but individual
senators may be very important in the process through the exercise of senatorial
courtesy.
2. Senatorial courtesy is exercised by simply failing to return the blue slip, which
means that the judiciary committee will take no action.
3. Often this process translates into formal nomination by the president but informal
nomination by a senator.
C. Since, unlike the district courts, the courts of appeals’ circuits cross state boundaries,
no senator may unambiguously claim senatorial courtesy. However, the president is
restrained by the need to maintain a geographic balance of the courts.
D. Appointments to the Supreme Court warrant special attention from the president.
Moreover, since the institution is not tied to a particular state or region, individual
senators can make no special claims against the president.
1. The Senate as a whole is still important, however. In the nineteenth century, the
Senate was more likely than it is today to reject nominations on purely partisan
grounds. Nevertheless, the Senate of the twentieth century has rejected nominees.
2. In selecting nominees for the high court, presidents are particularly careful to
select candidates who share their ideological viewpoint.
3. Nominations to the Supreme Court also give presidents an opportunity to
recognize important constituent groups, especially social and racial groups that
have been underrepresented.
E. Since no recruitment system is neutral and all tend to favor certain characteristics and
skills, we turn to an examination of the type of people selected for the federal bench.
1. Supreme Court justices are typically white males from upper or upper middleclass families who have been politically active. Most have held political office
prior to appointment.
2. Lower federal court judges are a little less likely than Supreme Court justices to
come from prominent families. They are also slightly more likely to have been
educated at less prestigious regional schools. These courts also manifest a greater
racial and gender diversity than the Supreme Court.
3. Presidents staff the judiciary with members of their own party. A president may
occasionally select someone of the opposition party, but most have selected at
least 90 percent of the appointees from their own party.
F. Although initially the most difficult problem for the courts was finding people
willing to serve, recruitment is far less difficult today. The prestige and power of a
judgeship occasionally create the need to remove an ill or incompetent judge who
refuses to retire.
1. The Constitution provides federal judges with an appointment for life, removable
only through impeachment.
2. Over the years, there have been few impeachment trials, but even if it were
easier, impeachment seems an inappropriate way to remove judges who are ill or
too infirm to do the job.
3. Congress has tried to encourage judges to retire by providing a pension plan that
allows them to remain somewhat active, at full pay, as senior judges.
4. Congress has also provided a mechanism for denying case assignments to sitting
judges on the lower federal courts.
V.
The work of the Supreme Court can be divided into three phases.
A. During the weeks that the Court is in session, it meets Monday through Wednesday
to hear oral argument.
1. Cases are allotted one hour for oral argument, each side receiving one-half hour
for presentation. This time limit is strictly enforced.
2. An attorney’s presentation of the case may be interrupted by questions from the
justices, who may use the time to debate one another through the attorney.
3. The value of oral argument has long been debated, but the Court seems reluctant
to decide the cases solely on the basis of the written briefs.
B. The crucial work of the Court is done in conference. Held twice a week, the
conferences are private affairs open only to the justices.
1. The first order of business in the conferences is to decide which petitions should
be accepted for review. Before the conference, the chief justice will have
circulated the “discuss list.” Any case not on that list will be dismissed unless a
justice requests that it be added. As many as 70 percent of the cases never make
the discuss list.
2. Cases that make the list are discussed, but only those that get four votes for
review—the rule of four—are accepted.
3. Once the justices have disposed of the requests for review, they discuss the cases
that have been argued that week. The chief justice begins the discussion of each
case. Each justice, in order of seniority, then comments on the case. If the votes
of the justices are not clear from the discussion, the chief justice calls for a
formal vote.
4. After the vote, the chief justice, if he or she is in the majority, assigns the writing
of the opinion; if the chief justice is not in the majority, then the majority’s most
senior justice makes the assignment.
C. Once the assignment of the opinion has been made, the justice given the task begins a
draft. When completed, the draft will be circulated to the other members of the Court
for comment. Depending on the responses, the author may have to make significant
revisions to secure agreement from the others.
1. While the majority opinion is being circulated, other justices may work on their
own versions.
2. Any justice may, for instance, draft a dissenting opinion expressing disagreement
with the majority. Similarly, any justice may draft a concurring opinion.
3. The opinion-writing stage continues until all justices have decided which opinion
to join. This often requires the opinion writer to compromise, which can result in
vague opinions.
4. Once the opinion has been completed, it is announced.
VI.
Justices of the Supreme Court play a major role in interpreting the Constitution, largely
because the Court exercises the power of judicial review.
A. Judicial review is not mentioned in the Constitution. Instead, it was inferred by Chief
Justice John Marshall in Marbury v. Madison.
1. In Marbury, Marshall argued (1) that the Constitution is the supreme law of the
land; (2) the Judiciary Act of 1789 (the act at issue in the case) contradicted the
Constitution; and (3) therefore, the Judiciary Act of 1789 must be
unconstitutional.
2. In this way, Marshall grafted for the Court the power of judicial review and
avoided a showdown with President Jefferson. A showdown that the Court would
have lost.
B. Politically astute as Marshall’s decision was, it also, critics charge, missed the point.
Why, his critics ask, does the Court decide when an act conflicts with the
Constitution?
1. Those judges and legal scholars who remain unconvinced by Marshall’s
reasoning generally advocate an approach known as judicial restraint—the
infrequent use of judicial review and deference to the elected branches.
2. Opposing judicial restraint are those who believe in judicial activism. Judicial
activists argue that the Court has the right, even the duty, to exercise judicial
review.
C. Overlaying this argument is another related controversy concerning how the
Constitution is to be interpreted.
1. One position, the originalist, argues that the Court must apply the literal meaning
of the Constitution.
2. If the literal meaning is vague or unclear, the originalists argue that justices must
look to the intentions of those who wrote the Constitution or the amendment.
3. The basic assumption of the originalists is that justices should not make law.
4. Opposing the originalists is a loose collection of judges and scholars who
conceive of judging as the choice among competing values.
5. Those opposing originalism often disagree on the correct interpretation of
constitutional provisions. What they do agree on is the need for judicial
discretion in the interpretation of the Constitution.
VII.
VIII.
Contrary to the myth of finality, the announcement of a court decision seldom settles the
matter. Rather than an ending, the decision is only the beginning of a long process of
implementation.
A. Courts cannot call out an army or police force, nor can they levy taxes to fund
implementation.
B. When the Supreme Court overturns a decision of a lower court, it generally remands
the case to the original trial court for a decision not inconsistent with its opinion. But
trial courts and intermediate courts do not always follow the Court’s wishes.
1. Lower courts, for instance, may find it difficult to implement an ambiguous
decision of the Supreme Court. This is especially likely when the majority
decision is accompanied by several dissenting and concurring opinions.
2. The Supreme Court can overturn lower court decisions, but this serves as only a
limited check. The Court’s power to police the lower courts is limited by time
constraints.
C. Just as the Supreme Court must depend on the inferior courts to implement its
decisions, so too must it rely on the cooperation of Congress and the president.
1. The most important power possessed by Congress is the control of public funds.
By providing or withholding the funds necessary to carry out Court decisions,
Congress can significantly affect implementation.
2. The actions of individual members of Congress may also aid or hinder
implementation. Important political leaders such as members of Congress are, by
virtue of their position, leaders of public opinion.
3. Congress may also use its power to propose constitutional amendments to
overturn Court decisions, which has happened five times.
4. On occasion, Congress will attempt to pressure the Court into altering its
decision.
5. The president may be crucial also, especially because, on average, a president has
the opportunity to make an appointment to the Court every 22 months. Thus, a
two-term president often has the chance to reshape the Court.
6. The willingness of a president to support a Supreme Court decision may also
influence public opinion.
Our discussion of the judicial system has noted that the courts operate under a shroud of
symbolism and myth.
A. One of the central myths about the courts is the myth of nonpolitical courts. As this
chapter demonstrates, the courts are and always have been political institutions.
B. Similarly, the chapter has pointed out that the myth of finality overestimates the
power of the judiciary. Court policy is not self-executing. The implementation of
court decisions requires the aid of the other branches.