Key Concepts: Chapter 16 (The Judiciary)
(last update: 2/17/17)
Constitutional basis – Article III established the Supreme Court; gave Congress authority to create “such inferior
courts as the Congress may from time to time ordain and establish.”
Constitutional courts vs. legislative courts –
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Constitutional courts:
Created under Article III of the Constitution; thus, sometimes called “Article III courts”).
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Very broad jurisdiction (federal question and diversity cases).
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Judges have lifetime tenure during good behavior.
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Salaries may not be reduced.
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Legislative courts:
Created by Congress in the exercise of their legislative powers under Article I (ex: bankruptcy,
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maritime); thus, sometimes called “Article I courts.”
A court created for a specialized purpose.
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Fixed terms of office.
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Salaries can be reduced.
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Examples: tax courts, military courts.
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Structure of the courts –
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Dual court system: We have state and federal courts. This furthers the cause of federalism. The vast
majority of cases are filed in state courts.
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Both state and federal court systems have the following:
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District Court (or Trial Court— same thing), then Court of Appeals (or Circuit Courts), then
Supreme Court
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District court (94 of them in fed’l system) is where trials are held. A trial is where the
parties first present their cases to a judge. Trial courts make findings of fact and law.
Often there will be a jury making findings of fact.
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Can be a civil trial (where people are litigating over things like contract
disputes, personal injury, divorces, etc.)
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Or criminal trial (where the government is suing someone who is accused of
having committed a crime).
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Court of Appeals (a/k/a Circuit Court, or an appellate court; there are 13 circuit courts)
hears appeals of district court decisions. No new facts; they make findings only of law
(taking the facts that were found at trial as a given). No juries.
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USSC. Most of its cases come to it through its appellate jurisdiction as appeals of a
Court of Appeals decision, although the USSC can also hear appeals of a state supreme
court decision that involves a federal question. USSC has original jurisdiction over a
very few # of cases (e.g., one involving a foreign ambassador or a case involving the
U.S. and a state; there may be 2 or 3 cases a year of original jx for USSC).
To get into federal court, you need either
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Federal question (a question about the Constitution or federal law); or
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Diversity jx (citizens from different states AND at least $75,000 in dispute). Note that in diversity
cases, federal court will apply state law.
You cannot bring an action in federal court against a state of which you are not a citizen, thanks to the 11th
Amendment. Arose after someone from SC sued GA for payments due in Chisholm v. GA (1793).
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Note about sovereign immunity: States and the federal gov’ts cannot be sued without their
consent. It’s an inherent power of any sovereign entity. The 11th Amendment affirmed that
concept and changed a clause that was in Art. III, Sec. 2 that appeared to give citizens of one state
the right to sue another state.
Jurisdiction (abbreviated “jx”) – a court’s authority to hear a case.
Original jurisdiction – The authority of a court to hear a case “in the first instance.” District courts have original jx;
the USSC has original jx in a very few cases (see discussion above).
Appellate jurisdiction – The authority of a court to review decisions made by lower courts. Circuit courts of appeal
and the USSC have appellate jx.
Selecting USSC Justices –
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Often a “litmus test” will be used. Where does the nominee stand on various issues? If the nominee won’t
publicly commit to specific issues (and they usually don’t), then the question may become are they judicial
restraintists or judicial activists?
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Judicial restraint – Philosophy proposing that judges should interpret a law (whether
Constitution, statute, etc.) to reflect the drafters’ understanding of what the words mean. (Also
known as “strict constructionism” or “originalism”.)
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Judicial activism – Philosophy proposing that judges should interpret a law in a manner
consistent with the principals advanced by the law. Thus, current conditions and values are
considered. (Also known as “loose constructionism” or “living constitutionalist”.)
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Other factors affecting selection may include race, gender, party (and loyalty), experience, etc.
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Senatorial courtesy (used most often with District Court nominations). Presidential custom of submitting
the names of prospective appointees for approval to senators before nominating someone to fill a vacancy
within that Senator’s state. Most frequently seen with US District Court nominations; to a lesser extent with
US Courts of Appeals; not at all with the USSC.
Appeals to USSC -•
Must file a petition for a writ of certiorari, which asks the Court to hear the case.
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The vast majority (like 99%) of petitions for cert are denied.
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The Rule of Four: It takes at least 4 USSC Justices to vote to grant cert in order for the Court to hear an
appeal. Law clerks very important in helping with this process, as well as with all other business of the
USSC and federal courts.
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Things that make a case more “cert-worthy” include a split among the Circuit Courts, a significant question
of constitutional interpretation, a new question that will affect a large # of people (like Obamacare cases), a
bizarre question of major significance (like Bush v. Gore).
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Solicitor General represents the U.S. gov’t in all appeals before the USSC.
In forma pauperis – litigants who can’t pay a filing fee. They file “as paupers.” Many petitions for a writ of cert are
filed in forma pauperis.
Types of USSC opinions –
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Per curiam. An unsigned opinion for the Court. Usually very short, straightforward. Usually has
precedential value.
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Majority opinion (often called the “opinion of the Court”). This reflects a majority of the Court’s views.
Has precedential value unless stated otherwise. Chief Justice gets to assign which Justice will write the
majority opinion if the CJ is in the majority; otherwise, the senior-most Justice gets to make the assignment.
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Plurality opinion. No opinion gets at least 5 Justices to sign onto. For precedential purposes, use the
opinion decided on the narrowest grounds. (The “Marks Rule,” so named after Marks v. U.S.)
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Concurring opinion. Agrees with the result but not the reasoning. No precedential value.
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Dissenting opinion. Disagrees with the result. No precedential value. These (and concurring opinions)
may be filed to try to build momentum for later decisions that will adopt the decision’s reasoning.
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Judicial review – The power to declare something unconstitutional. The Supremes took this power for themselves in
the case of Marbury v. Madison.
Common law – “Judge-made law.” Law that is made by court decisions (as opposed to “civil” law — i.e., law
established in a constitution, statute, or regulation).
Plaintiff – the party that files a lawsuit in a civil action (the “state” or gov’t files a lawsuit in a criminal action).
Defendant – the party against whom a lawsuit is filed. Term is used in either a civil or criminal action.
Adversary system – A judicial system in which the court of law is a neutral arena where two parties argue their
differences. It is thought that parties who are adversaries will try their hardest to win, thereby creating a full record of
the facts and thorough legal briefs leading to the fairest administration of justice.
Plea bargain – Agreement between a prosecutor and a defendant that the defendant will plead guilty to a lesser offense
to avoid having to stand trial for a more serious offense.
Public defender system – Arrangement whereby lawyers are hired to represent someone accused of crimes who is
unable to hire his/her own attorney. Gideon v. Wainwright expanded the circumstances under which a defendant is
entitled to a public defender to include all felony cases and not just capital felony cases – i.e., one where the defendant
could be put to death.
Exclusive jx – only either state or fed’l court has jx. Ex: Suit involving a federal criminal statute must be brought in
federal court.
Concurrent jx – both state and fed’l courts have jx. Most suits that can be brought in fed’l court also can be brought in
state court if the plaintiff chooses (but you have to pick one).
Precedential value – a case will serve as “precedent” (and therefore have precedential value) for any later case
involving the same legal question — in other words, later judges will be guided by this decision. On rare occasions, the
Court will state that an opinion may not be relied on (like Bush v. Gore). A precedent is a decision made by a higher
court (such as a circuit court of appeals or the Supreme Court) that is followed by all lower federal courts. A case also
can be precedent for the same court, and the court will usually follow it in accordance with the principle of stare
decisis.
Stare decisis – The rule whereby a Supreme Court decision is commonly viewed as binding on the Court (and inferior
courts) whenever the same question is presented. Note, however, that sometimes the USSC will ignore stare decisis
and reverse itself (Brown overruled Plessy, for instance).
Writ of habeas corpus – A court order requiring explanation by the prosecutor to a judge why a prisoner is being held
in custody. Basically allows someone to know why he was arrested.
Writ of mandamus – a court order mandating that a lower court (or person) take, or refrain from taking, some action.
Docket – The list of potential cases that reach the Supremes. Also the list of cases to be heard by any court.
Brief – a written statement by an attorney (or party, if not represented by a lawyer) that summarizes the facts and the
laws that support the party’s argument.
Amicus curiae brief – Literally, a “friend of the court” brief, filed by an individual or organization to present
arguments in addition to those presented by the parties to a case.
Brandeis brief – A brief that bases its arguments more on social science and economics than legal arguments. The
brief filed in Brown v. Board of Education that talked about the “doll research” was a Brandeis brief.
The Lochner Era – so named b/c of the case of Lochner v. New York (1905). It’s a string of decisions in which the
USSC struck down federal and state laws that the Court found to interfere with property rights and the right to contract.
Very pro-business era, involving a very activist court in a conservative way. Other famous “Lochner Era” cases include
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Hammer v. Dagenhart (1918). Court struck down child labor law b/c it interfered with father’s “right” to
contract with a company that hired his 14 year-old son.
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Schechter Poultry v. U.S. (1934). The “sick chicken” case. Supremes held that Congress can’t regulate
conditions on chicken farms under the Interstate Commerce clause. Thus, law struck down.
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West Coast Hotel v. Parrish (1937). Ended the Lochner era. Court upheld state minimum wage law. It
allowed a restriction on the liberty of contract. It was the “switch in time that saved nine” (i.e., it made
FDR’s court-packing scheme less important to FDR).
Political question doctrine – The USSC occasionally will decline to hear an appeal because it involves a question that
the USSC thinks is better resolved through the political process. Ex: challenges to the President’s compliance with the
War Powers Resolution.
Justiciability – Courts deal with actual “cases or controversies,” not hypothetical questions. Stated another way, the
courts deal only with cases that are “justiciable” — i.e., cases for which the courts may provide an adequate resolution.
If a case is not justiciable, the court will dismiss it. Reasons why a case may not be justiciable:
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Not yet ripe — no real harm yet (remember, courts won’t hear a hypothetical question).
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Case is moot. The dispute has been resolved before the court had a chance to hear it, and thus there is
nothing more for the court to do.
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Lack of standing. You’re not the right person to bring the suit.
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Political question (think disputes under the War Powers Resolution)
Checks on the Judiciary –
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Court lacks enforcement arm; thus, it must rely on the persuasiveness of its rulings to increase the likelihood
of compliance with its decisions. For this reason, the Court pays attention to public opinion. Otherwise,
states might decide to ignore a ruling (think compliance pains after desegregation order).
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Congress can
impeach and convict a judge (but not just b/c they disagree with a ruling).
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alter (with the Prez’s approval) the # of Justices or the # fed’l appellate or district courts.
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pass a law (with the President’s approval) that effectively undoes a USSC ruling (unless the ruling
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is on constitutional grounds; that would require a constitutional amendment, which Congress also
can facilitate). If the USSC interprets a statute one way, Congress can handle that by amending
the statute in the way that reaches the outcome it wants.
strip a federal court of jurisdiction (with President’s approval). See Ex Parte McCardle (1869)
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(which took jx away from the USSC to hear a suit challenging the Reconstruction Act; Congress
didn’t want Supreme Court undoing what Congress had done in the aftermath of the Civil War).
refuse to confirm a nomination for a judgeship (Senate).
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amend the Constitution (with the States).
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President can
Refuse (as a practical matter, not legally) to enforce an order (what if, for example, Eisenhower
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had not called out the National Guard to enforce desegregation orders?).
Appoint who he wants as judge (within reason; subject to confirmation by Senate and subject to
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Senatorial courtesy).
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Note, though, that the USSC is insulated from direct political pressure, by
Life appointments (during good behavior).
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Salaries cannot be reduced.
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Complete control over which cases it hears.
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No lobbying the Court other than through court briefs and other formal proceedings.
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Fee shifting – A statute allowing a winning plaintiff to collect attorneys fees from the defendant. (Usual rule is that
both sides pay their own attorneys fees.) Available in civil rights cases, for instance; done to encourage people to assert
their rights.
Class action lawsuit – suit brought by an individual on behalf of himself and everyone else similarly situated. Very
effective in areas such as civil rights litigation (see Brown v. Board of Education). Often used to address small harms to
a lot of people.
Remand – an order by appellate court (could be the Supremes or a Circuit Court) to send a case back to a lower court
for further action.
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