Chapter 13
Chapter 13: The Courts
Chapter Review
The Supreme Court is a policy-making institution and an equal partner in our system
of separated powers. Despite the perception that it is “above politics,” the judiciary
is inherently political.
The Development of an Independent and Powerful Federal Judiciary
- The framers of the Constitution generally agreed that they wanted the Court to be
independent, but they disagreed on how powerful the Supreme Court should be. The
Federalists wanted a weak judiciary, while the Antifederalists wanted a strong judiciary.
- Due to this conflict, many of the details about the Supreme Court were left up to
the Congress, as they were not articulated in the Constitution.
- Congress passed the Judiciary Act of 1789, which that provided
the most detail about how the federal judiciary would be organized.
- Judicial Review
- Using the 1803 case Marbury v. Madison, Marshall established judicial
review, giving the Court the power to strike down a law or executive action
that it finds unconstitutional.
- Judicial review has allowed the Court to gain equal footing in the system of checks
and balances and the separation of powers.
- When reviewing the constitutionality of law, the Supreme Court can engage in two
forms of interpretation:
- Constitutional interpretation is determining whether a law is constitutional.
- Statutory interpretation is determining the contexts in which a
law applies.
- The process of interpreting the Constitution and resolving different interpretations
of the law is an extremely political activity.
American Legal and Judicial System
- Fundamentals
- A plaintiff is someone who brings a case to the court, while the
defendant is the person against whom a case is brought.
- The final decision of the court is the verdict. If a case is settled
before the end of the trial, the outcome is called a plea bargain.
- Differences between Criminal and Civil Cases
- In criminal cases, the amount of evidence to reach a decision, or standard
of proof, is much higher than it is for civil cases.
- In criminal cases, the burden of proof is on the plaintiff, who
must demonstrate that the defendant is not innocent. However, in civil cases, the
burden of proof can apply to either party.
- Other Characteristics
- Our system is an adversarial system, meaning that lawyers on both
sides get to present their case and challenge the opposing side.
- Much of our system is based on common law, meaning the law is based
on previous court cases rather than legislation.
- Precedent is a powerful legal norm that applies previous court
cases to future cases if they address the same legal questions.
- In civil cases, the plaintiff must have standing in the case, meaning
that he or she must be justified in bringing a case to the court.
- Choosing the appropriate court for a case requires understanding which courts have
jurisdiction over the specific legal question.
- Courts and Federalism
- There are two parallel tracks of the court system across levels of government: state
and local courts as well as federal courts.
- Each track involves trial courts, followed by intermediate appeals courts and ultimately
the final appeals courts.
- There are two groups of federal courts.
- Constitutional courts are established in Article III of the Constitution.
- Legislative courts are created by Congress and are inferior to
the Supreme Court.
- District courts are the “workhorses” of the legal system as the majority of legal
action takes place there.
- There are eighty-nine federal district courts, handling over 250,000 legal filings
per year.
- Appeals courts serve as an intermediate level of the courts, where
appeals of a lower court decisions are heard.
- Most cases end here, though a very few decisions reached in the appeals courts can
be appealed in the Supreme Court as well.
- The Supreme Court is the “court of last resort” for cases appealing decisions at
the district and appellate court levels.
- The Supreme Court resolves conflicts between lower courts, or between state and
federal law, or between states in an effort to make sure that the Constitution is
consistently applied across the United States.
- The Selection of Judges
- State-level judges can be selected a number of ways: appointment by the governor,
appointment by the state legislature, partisan elections, nonpartisan elections,
or via the Missouri Plan, where the judge is selected by the governor from a list
compiled by a nonpartisan steering committee.
- Federal judges are appointed by the president and the “advice and consent” of the
Senate.
- Many nominations are fierce battles, as federal judges have significant influence
and lifetime tenure.
- The Constitution does not list any qualifications for serving on the federal court.
- Presidents have broad discretion in whom they appoint, and often attempt to influence
the ideological direction of the Court.
- While the president can make a good guess about how a justice is likely to vote,
presidential guesses are not always accurate.
- The Senate rarely rejects federal court nominees because of qualifications, but
often does so for political and ideological reasons.
- Other interpretations of the “advice and consent” provision in the Constitution
have changed over time.
- Though district and appellate court nominations have been contested lately, the
norm of senatorial courtesy is still commonly upheld, meaning that
the president will consult with his party’s senators from the relevant state in
choosing a district court nominee.
Access to the Supreme Court
- The Supreme Court receives roughly 9,000 cases a year, but fewer than 1 percent
of appeals are actually heard by the Court.
- Cases can reach the Supreme Court in one of four ways.
- Original jurisdiction involves conflicts between two states, foreign
ambassadors, or foreign countries.
- Cases on appeal are those cases that Congress requires the Supreme
Court to hear.
- A writ of certification is issued when an appeals court asks the
Supreme Court to clarify a federal law as it applies to a particular case.
- A writ of certiorari is issued when at least four of the nine justices
agree to hear a case and is by far the most common route to the Court.
- There are three primary criteria for the selection of cases, requiring actual “cases
and controversies”:
- Collusion requires that they litigants not agree on the desired
outcome of the case, meaning that they are not cooperating or conspiring.
- Mootness requires that the controversy still be relevant when the
Court hears the case.
- Ripeness requires that the central issue has taken place. The Court
will not preemptively act.
- Justices still have a great degree of personal discretion over what cases they will
hear:
- Most justices use a cert pool, where law clerks sift through the
cases to pick relevant cases.
- Justices place these relevant cases on the “discuss list,” where they are considered
in conference with other justices.
- While justices can pick and choose the cases they decide to hear, they can only
choose the cases that come to them: they cannot choose their agenda.
Hearing Cases before the Supreme Court
- Justices prepare for a case by reading briefs which are filed by both parties. They
also prepare with amicus curiae briefs, which are submitted by
interest groups.
- When the case is scheduled, the justices hear oral arguments from
the lawyers from each party, each side generally getting half an hour to present.
- Following the arguments, the justices meet in conference to discuss and vote on
the cases.
- After justices indicate their vote choice, the most senior justice in the majority
decides who will write the majority opinion.
- This facilitates a number of goals:
- It ensures smooth operation of the Court.
- It plays to the justices’ individual areas of expertise.
- It allows the Court to act strategically based on external relations, internal politics,
and the personal policy goals of the opinion assigner.
- Once the majority opinion has been drafted, they are circulated and the justices
have the option of joining the majority opinion, writing a separate concurring opinion,
or dissenting.
Supreme Court Decision Making
- Legal Factors
- Ruling based on precedent involves using previous decisions on similar cases to
inform current decisions.
- Language of the Constitution
- Strict constructionists argue that the Constitution should be interpreted
based on its language alone.
- In places where the wording of the Constitution are unclear, strict constructionists
believe that they should be guided by the original intent of the
Founders.
- Critics of strict constructionists argue in favor of a living Constitution
that takes into account the changes in society and national circumstances.
- Political Factors
- Political Ideology
- Rather than following a neutral application of the law, justices are subject to
political influence.
- The attitudinal approach argues that there is a liberal-conservative
divide on issues such as defendant’s rights, abortion, or national intervention
in the states, and that justices are ideologically consistent in their rulings across
issues.
- Strategic Approach
- A strategic approach considers how justices calculate their actions based on the
preferences of other justices, the president, and Congress. Under this model, the
median voter in Court has significant influence.
- Separation of Powers
- Justices clash on how active the court should be in intervention in the other branches
of government.
- Supporters of judicial restraint argue that the Court should be
reserved and defer to other branches of government, not striking down their laws.
- Supporters of judicial activism argue that the Court should be
active in interpreting the law, even if it overrules the actions of the elected
branches of government.
- Outside Influences: Interest Groups and Public Opinion
- Public opinion indirectly influences Supreme Court decision making, because Court
nominees are selected and approved by the president and the Senate, al of whom are
popularly elected.
- Further, when the public articulates a clear position on an issue, the Court often
agrees with the public.
The Court as a Policy Maker
- The Court has difficulty enforcing decisions: sometimes it can force its views on
other the branches of government, while other times it requires their support.
- The court relies on its reputation to gain compliance with its decisions, it often
relies on executive or congressional action to support them.
- Without executive or congressional support, the Court is often powerless to enforce
its rulings.
- Generally, the Court is careful not to encroach on the power of either the president
or Congress unless it is necessary.
- It does strike down congressional or presidential action occasionally, as when it
required Nixon to submit his secret tapes of the Watergate break-in.