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Review

The Legal System

The framers believed that the judiciary would protect individual liberty from the tyranny of the majority. Throughout our history, the US courts have protected the freedoms of people whose political views, religious beliefs, or racial or ethnic backgrounds made them unpopular. Every year, nearly 25 million cases are tried in American courts, and one American in every nine is directly involved in litigation. Cases can arise from disputes between citizens, from efforts by government agencies to punish wrongdoing, or from citizens’ efforts to prove that a right provided them by law has been infringed on as a result of government action or inaction. The U.S. Supreme Court may ultimately be called on to rule in an election dispute that decides the presidency (as it did in the 2000 national presidential election). The heavy use of the courts is an indication of the conflict that exists in American society and the faith and reliance we place in the courts.

I. Within what broad categories of law do cases arise?

Courts have evolved from the power of the sovereign to settle dispute between subjects into a separate institution with the legitimacy, usually through a constitution, to resolve conflicts.
The United States is said to be governed by the “rule of law” rather than the “rule of man.”
Cases can arise under criminal law, civil law, and public law.
- Criminal law cases are those in which the government charges an individual with violating a statute enacted to protect the public’s health, safety, welfare, or morality.
- Civil law involves the breach of some duty or obligation that individuals owe one another (e.g., breach of contract, personal injuries).
- Public law involves the violation of protected rights (e.g., the Fourth Amendment right of citizens to be secure in their person, place, or things).

II. How is the U.S. court system structured?

In the United States, systems of courts have been established by the federal government and by the governments of the individual states.
Cases involving federal laws, treaties, and the Constitution are heard by the federal courts. Federal cases include tax evasion, drug crimes and terrorism.
Cases involving the overwhelming majority of issues involving the public’s health, safety, welfare, and morality are the jurisdiction of state courts.

Federal Jurisdiction

I. What is the importance of the federal court system?

Federal courts hear only about one percent of all cases.
In recent years, the Supreme Court has given full review to less than 100 of the nearly 8000 cases appealed to it.
Most of the cases of original federal jurisdiction are handled by the federal district courts.
Twelve U.S. Courts of Appeal review the record of the trial courts in their “circuit” and decide questions of law; a thirteenth appellate court hears all cases dealing with patents, copyrights and international trade.
The Supreme Court is the final arbiter of the Constitution, even though the power of judicial review is not specifically mentioned in Article III of the Constitution.

II. What factors play a role in the appointment of federal judges?

The Constitution is silent on the number of judges that will serve on the Supreme Court—but the number has been fixed at nine since 1869.
Federal judges are appointed by the president and confirmed by the Senate.
- Presidents attempt to appoint judges whose judicial philosophy is consistent with their own political ideology. Seven of the nine justices were appointed by Republican presidents, helping explain the conservative trend in Supreme Court rulings.
- Senate scrutiny, however, checks the president’s ability to appoint judges that are perceived to be too extreme (e.g., Robert Bork, Charles Pickering Sr.).

The Power of the Supreme Court: Judicial Review

I. What is the basis of the Supreme Court’s power of judicial review?

The power of judicial review is the power of the federal courts to determine the constitutionality of federal or state laws, the propriety of lower court procedures, or whether public officers have acted within their authority.
The power of judicial review is not specifically mentioned in the Constitution, but was established in Marbury v Madison.
After initial reluctance, the Supreme Court has allowed Congress to delegate significant power to the executive.

II. How does the power of judicial review make the Supreme Court a lawmaking body?

Over the centuries, judges have developed “common law,” a body of rules and principles of interpretation that are not based on statutes, but on precedents and tradition.
In reviewing the actions of government, the Supreme Court interprets the very meaning of the Constitution and thereby become lawmakers in their own right.
Brown v Board of Education, Engle v Vitale, Gideon v Wainwright, Roe v Wade, and Baker v Carr are powerful examples of Supreme Court rulings dramatically affecting public policy.

III. How does a case reach the Supreme Court? What shapes the flow of cases through the Supreme Court?

Pursuant to the Constitution, federal courts are courts of limited jurisdiction.
Specific rules have also been developed to govern which cases are reviewed by the Supreme Court.
The case must involve a “case and controversy,” the parties must have standing, the issue must not be moot, and the case must present a new question.
Parties who wish to have their cases reviewed by the Supreme Court must file a writ of habeas corpus or a writ of certiorari.
The flow of cases is influenced by the solicitor general, law clerks, and interest groups.

IV. Once accepted, how does a case proceed?

Parties initially file briefs that present the best legal arguments for a ruling in their favor.
Interest groups may file amicus briefs in support of the parties to the suit.
The parties are given thirty minutes to present oral arguments.
The Supreme Court meets in conference to decide the case, and the majority is given the responsibility of writing the Opinion of the Court.
Justices in agreement with the ruling may file a separate concurring opinion if their interpretation of the facts and law differ from the majority opinion.
Justices in disagreement with the majority may write dissenting opinions that explain why they believe that the decision should have gone the other way.

V. What factors influence the judicial philosophy of the Supreme Court?

Activist judges believe that the courts should play a more active role in policy-making and be willing to strike down federal laws, whereas judges favoring restraint believe that the courts should defer to the elected branches of government.
- The current Rehnquist court is one of the most activist courts in US history.
Political ideology may also explain the direction of the court during a particular period of time (e.g., the Warren Court of the 1950s and 1960s, the Rehnquist Court of the 1990s).

Judicial Power and Politics.

I. How has the power of the federal courts been limited throughout much of American history?

Federal courts have been restrained through the use of standing, the relief that could be provided, the courts’ lack of enforcement power, and the appointment of federal judges.
Congress can change the size and jurisdiction of the federal courts.
In addition, there seems to be a strong correlation between shifts in public opinion and judicial decisions (e.g., the death penalty, abortion).

II. How have the role and power of the federal courts been transformed over the last fifty years?

Since World War II, the role and power of the federal judiciary have been strengthened and expanded.
The first transformation was the substantive revolution in judicial policy: school desegregation, legislative apportionment, and criminal procedure.
In the second transformation, procedures were changed that strengthened the position of the federal judiciary (e.g., liberalizing standing, fee shifting, expanding the types of relief granted).