Structure of the Judiciary System
The federal court system is entirely separate from the individual state court systems. The Constitution states that a Supreme Court must exist, but Congress has the ability to create inferior courts as they see fit.
The federal court system has three distinct levels that deal with most judicial issues that may arise.
Two main types of law exist at any level of judicial proceedings: criminal law and civil law. Criminal laws represent violations of behavioral standards of society. For instance, stealing is considered an unacceptable form of behavior. The penalty for violating most criminal laws is having your freedom temporarily taken away. If you are caught stealing, you will probably be required to spend time in jail. Of course, the more severe the crime, the longer a person must be kept isolated from the rest of society.
When a criminal law is broken, the government (either the state or federal) conducts a trial of a person to determine if they are indeed guilty of a crime. When a person is on trial in a federal court, the United States government represents the prosecution, while the person is considered the defendant. This is why many cases are labeled something similar to United States v. John Smith. The federal government is accusing John Smith of some crime. If a state accuses an individual of breaking a law, the case would be labeled West Virginia v. William Jones.
Because of the high volume of criminal activity in the United States, most cases don't actually go to trial. Typically, the government has enough evidence to convict a person when they bring charges against them. Thus, most criminal defendants will enter into a plea bargain rather than go to trial. A plea bargain is an agreement between the prosecution and defense, where the defendant admits his guilt in return for a more lenient sentence. Plea bargains allow the government to focus resources on more violent crimes and not use the court's time on smaller, non-violent offenses.
In cases where a defendant chooses to go to trial, they have rights that must be protected, including the right to a speedy trial, the right to legal counsel, and a right to a jury trial.
The right to legal counsel has been interpreted to mean the government must provide an attorney to defendants if they are unable to afford one. A jury trial is also an important guarantee, whereby a group of citizens must determine if a defendant is guilty of the charges. For the purposes of the federal government, juries consist of 12 individuals and must have a unanimous decision to render a verdict. Juries are to give the presumption of innocence until proven otherwise. In a criminal case, the burden of proof is on the prosecution. Juries must convict based on the principle that a person must be guilty beyond any reasonable doubt.
Criminal law only represents part of the judicial system in America. Civil law pertains to settling disputes between two parties that does not necessarily involve violating a behavioral standard. When you think civil law, you should think of lawsuits. When one person or group believes they have been wronged by another party, the have the right to sue. However, any person claiming they have been damaged must demonstrate standing to sue. Standing means that you must show that the other party has somehow caused or will cause you harm or damage.
In any lawsuit, the person or group bringing the complaint is considered to be the plaintiff, and the party they are suing is the defendant. Since these cases don't usually involve the government, it's two private entities that are listed in the case name, i.e. Smith v. Jones. Civil cases are also decided by a jury, but the standard for determining the outcome of a case differs from a criminal case. Civil cases use what's called the preponderance of evidence, which means they decide which side of a case is more probable to be true.
Let's take a look at a lawsuit that many Americans have some familiarity with: Liebeck v. McDonald's Restaurants. In this instance, 79 year old Stella Liebeck spilled hot coffee on herself after prying open the cup's lid to put cream and sugar into the coffee. Liebeck sustained third degree burns on thighs and groin, which put her in the hospital for an extended stay. At only 100 pounds, she lost 20% of her body weight while in the hospital, and after released, her daughter took time away from work to care for Liebeck (who also was partially disabled for two years afterward).
Liebeck brought a lawsuit against McDonald's, claiming they were grossly negligent in not effectively providing warning that the coffee was extremely hot, and they were brewing their coffee at extremely dangerous temperatures. She offered to settle out of court for $20,000 to cover her medical expenses and lost income of her daughter. McDonald's refused.
After hearing the evidence, a jury decided McDonald's bore 80% of the blame for accident. The jury awarded Liebeck $200,000 for compensatory damages (medical costs and legal fees) and then awarded her $2.3 million in punitive damages (these are awards meant to punish a party for their egregious actions). Many Americans were outraged by the award given to Liebeck, but forget that negligence must somehow be punished.
The judicial system can't try McDonald's under criminal law. What would you charge them with? Assault and battery? We don't have crimes against negligence per se. This is precisely what civil law is designed to do -- settle disputes. Moreover, this allows corporations and individuals to be held responsible for their actions.
Levels of Federal Courts
The three main levels of federal courts almost always begin at the federal district court level. The United States is divided into 94 specific districts to handle the criminal and civil proceedings at the federal level. Each district has a district attorney responsible for representing the government in instances where the United States is a party. These attorneys are appointed by the president and confirmed by the Senate.
When a lawsuit is filed, or a crime is committed in a particular district, the trial must take place in that district. Each district has a different number of judges working in the area, depending upon the amount of cases in a given district. Federal district judges obtain their position through an appointment from the president, and they have a lifetime tenure. Their appointments must be confirmed by the Senate through a majority vote.
Federal district courts have what is commonly known as original jurisdiction, which is a particular type of authority. This means cases must originate at this court. No case can be appealed up to the federal district court. Imagine it as the ground floor of a building. These courts are where an actual trial occurs, evidence is presented, and a verdict is rendered by a jury.
At the district court level, if a defendant is convicted of a crime or an individual loses a civil case, they have the right to appeal the case to a higher court for review. In this case, the next level of the court system is the United States Circuit Court of Appeals. The 94 districts are grouped together into 11 main circuits, which hear cases that are appealed up from district courts.
The circuit courts hold a different type of authority than district courts. The circuit courts have appellate jurisdiction, meaning they have the ability to only hear cases appealed up from a lower court. Cases do not originate at the circuit courts.
When cases are appealed to the circuit court, the proceedings are very different. There is no jury present, nor is any evidence presented. A panel of three judges will examine the lower court's decision and listen to the attorneys present arguments about why the lower court might have made a mistake of some kind. The three judges will then vote to uphold or overturn the lower court's decision.
The judges in the courts of appeal also receive their appointments through the president and then are confirmed by the Senate. The number of judges working in each circuit varies based on the amount of cases they hear. When a case arises in a particular circuit, three random judges are assigned to that case. When a court of appeals makes a ruling, their decision is also subject to appeal. A party may appeal the decision to the United States Supreme Court for review.
The Supreme Court is unique from the two lower levels of courts. Its existence is required because the Constitution states as much. The number of judges, or justices, currently stands at nine, but the Constitution does not specify the number of justices on the Court. Congress holds the authority to expand or contract the number of justices and they have done so on many occasions. However, the number has been stable at nine for well over a century.
Unlike members of Congress or the president, the Supreme Court justices have no official qualifications written in the Constitution. They receive a lifetime positions through an appointment from the president and confirmation by the Senate. Despite having no official qualifications, justices are often well into their 50s and 60s when appointed to the Court. It takes a great deal of experience as an attorney and judge for a person to receive a nomination for the Supreme Court. Presidents take these nominations very seriously because the justices they choose are often a reflection of their own values and beliefs -- an extension of their own personal legacy.
The Supreme Court has both original and appellate jurisdiction. Though most of its cases come from appeals through lower courts, there are a few types of situations where a case can go directly to the Supreme Court. These cases typically involve controversies between states or when a foreign entity is party to a dispute. It's also important to note that cases can be appealed to the Supreme Court through the federal courts AND through state courts.
The types of cases heard by the Court usually involve some type of controversy that pertain to an interpretation of a provision in the Constitution. The Court has the ability to deny hearing cases appealed to them.
How the Supreme Court Operates
The Supreme Court is a strange entity compared to the rest of the federal government. Their schedule for hearing cases runs from October to June. Their summer months typically only involve announcing their decisions. During their time for hearing cases, the Court typically works in two-week intervals, where they will hear cases during for two weeks and then take off for two weeks to conduct research on legal issues, discuss cases and make decisions.
The Court's physical environment and surroundings are very much oriented to provide a feeling of ceremony and importance. The building that houses the Court is ornate, complete with exterior Corinthian columns that give off a vibe reminiscent of the Parthenon. The interior of the building is replete with marble floors and other complex fashioning. The door to the courtroom chamber is obnoxiously large and the inner courtroom holds a large set of Ionic columns surrounded by red drapes. The justices sit at elevated bench while donning black robes. No video cameras are allowed to cover the proceedings of the Court.
Many attorneys and observers of the Court jokingly (and probably condescendingly) refer to it as "the temple" for its seemingly religious-like ceremonial pomp and circumstances.
Of the Court's nine justices, one is designated as the Chief Justice of the United States. The Constitution does not designate any specific powers or authority to the Chief, however, it is a significant position nonetheless. The power of the Chief is often described as being "first among equals." The Chief is responsible for creating an overall direction of the Court, but the power of the position often comes from the person who holds it.
To have a case heard by the Supreme Court, a party must obtain a writ of certiorari, which is written permission from the Court to hear a case. The Court has no obligation to hear cases appealed up to them. They control their own agenda, which gives them an advantage that neither of the other two branches have. If the public brings an issue to the president or Congress, avoiding the voters is done at their own peril. In instances where the Court declines to hear a case, the lower court's ruling will stand.
To receive a writ of certiorari, the justices use a concept known as the rule of four, where a case will be accepted if any four justices believe it is worthy of hearing before the entire Court. Annually, the Court hears approximately 80 cases, a small workload considering that thousands apply for a writ.
Once a case is schedule to be heard by the Court, attorneys for both parties will send in legal briefs, which are summaries of their arguments. This is done so that justices may familiarize themselves with the various issues at stake, and prepare questions for the attorneys. When a case is heard in front of the Court, both attorneys have precisely 30 minutes to present their argument. During this time span, the justices frequently interrupt to ask questions. Some justices are very active in questioning, such as Chief Justice John Roberts. Others, such as Clarence Thomas, rarely speak during oral arguments.
After the oral arguments of a case have been presented, the justices engage in what's called a conference session, where they will discuss the case and ultimately vote on how they will rule. Even the conferencing of the justices has ceremony involved. The nine members of the Court meet in a special room that has few adornments (except for a portrait of John Marshall). When the justices enter the room, they take part in a tradition where every person shakes hands with all other justices, as a semblance of professionalism and cordiality before they start arguing about the merits of a case. The justices do not record the conference meetings, nor is anyone else permitted into the room.
During conferencing, the justices all have an opportunity to share their thoughts about the case. The Chief Justice speaks before anyone else, and then each justice speaks in order of seniority on the Court. The newest member of the Court always speaks last (this justice is also responsible for answering the door). Of course, by the time the last justice speaks, most of the significant aspects of the case have already been discussed.
Once each justice has had the chance to share their thoughts on the case, the justices then take a vote. The newest justice casts the first vote, and then the justices cast votes in ascending order of seniority, with the Chief Justice voting last. One of the perks of being the Chief is having the final say in a case, which is particularly important when a case is divided 4-4.
When the justices arrive at a decision in their voting, one of them will write an official opinion of the court. This is a written explanation as to why the majority of the Court arrived at their decision. An official opinion is written in every case. If the Chief Justices is in the majority, he will assign the task of writing the opinion to one of the justices. Opinion writing is an important task because the author is essentially writing the legal standards and precedents for the future. It affects the entire nation and for that particular justice, it's a part of their personal legacy.
Some Chief Justices, such as John Marshall, frequently assigned the opinion to themselves. Others, such as current Chief Justice John Robert, make a priority to make certain every justice as an opportunity to write a majority opinion before any other justice is assigned a second one. When the Chief Justice is not in the majority, the senior most justice will assign the opinion.
When any justice does not vote with the majority, they are free to write a dissenting opinion, which is an explanation as to why they believe the case should have been decided differently. Dissenting opinions are often written with the hope of providing some form of legal basis for future generations to possibly overturn a particular ruling.
A justice is also permitted to write what's called a concurring opinion, where they voted with the majority of the Court, but for different legal reasons than the official opinion.
When justices vote and make their decisions on cases, they are typically guided by precedent -- how similar cases in the past have been decided. This concept is also referred to as stare decisis, which is a Latin phrase meaning "let the decision stand." Using this basis for deciding cases helps create a level of stability for the interpretation of laws in the nation.
Though precedent serves as a guidepost for how cases should be decided, the Court will sometimes overturn, or change precedent. But how does the Court know when to do this? The Court tends to overrule itself, or alter precedent, when something about society has significantly changed. There must be a change in the facts of an issue or a perception of those facts. The Court also takes into account how much the public has relied on a particular law.
An instance where the Court overturned a significant precedent came in Brown v. Board of Education (1954), when they ruled that the legal concept of "separate but equal" was unconstitutional. This negated the decision in Plessy v. Ferguson (1896), where the Court ruled racial segregation was acceptable, provided public accommodations were equal. What changed in the nearly 50 years between these two decisions? Prejudices that were once thought to be based on fact were disproven, and attitudes of Americans changed. Thus, the Court corrected what they believed to be a grievous mistake.
Another key component in the work of the Supreme Court is the role of the Solicitor General. This individual is responsible for representing the federal government in any case where the United States is a party. Because of the frequency with which the Solicitor General appears in the Court, this person is often referred to as the "10th Justice." The Solicitor General also has the discretion to determine which cases the United States will actually appeal to the Supreme Court.
Checks on the Court
The Supreme Court is a large part of the federal government and was meant to have protection from the inflamed opinions of the public, but that doesn't mean the Court doesn't have restraints that prevent wild decision making on their part.
One of the most profound checks against the Supreme Court was foreseen by the founders and mentioned in Federalist #78, where Alexander Hamilton wrote, "... It may truly be said to have neither force nor will, but merely judgment." Congress has the "power of the purse," the ability to control government spending. The president holds the "power of the sword," which allows control of the armed forces. The Supreme Court holds no weapon. The biggest problem of the Court is that they do not have the ability to enforce their decisions. They must rely on the executive branch for enforcement.
Can you answer: What would happen to the authority of the Supreme Court if the president refused to enforce their decision?
Can you answer: What are the other ways in which the Supreme Court's decision making can be restrained by Congress and the president?
Protection from the Other Branches
Though the Supreme Court is not all powerful in their decision making, they do have a great amount of freedom in ruling on controversies based on the law rather than outside influence from the public or the other two branches of government.
Some of the factors that prevent outside influence of the Court:
The Politics of the Judicial appointments
Despite the best efforts of the Framers to limit the amount of political interference from the other branches and the public, it hasn't been completely eliminated. The process of appointing and confirming federal judges and Supreme Court justices is highly politicized.
When the president makes choices about whom to appoint to judiciary positions, there are multiple factors to consider.
One of the ways in which a president will determine his choices for a federal judgeship is to seek the opinion of the American Bar Association (ABA), a professional group for those in the legal profession. The ABA prepares a list of those in the legal profession whom they believe would be good candidates for a vacancy on the Supreme Court and other openings in the federal courts. The president has no mandate to choose based on the ABA's recommendations, but most presidents have believed it to be the prudent thing to do.
When appointing judges to federal district courts or to circuit courts, a president also employs what's known as a senatorial courtesy. Before a president officially grants an appointment for a role as a judge, he will consult the senators of that state to see if they have any objections to that particular individual serving in their home state.
When appointing judges at lower courts or the Supreme Court (especially), presidents consider many other factors. One of these is the race of a potential nominee. While a president would never admit it, the race of a person is a significant factor. Why? Presidents consider their legacy when making these appointments because it looks good for their record to appoint a qualified minority. President Obama can lay claim to the fact that he appointed the first Hispanic justice in Supreme Court history.
Also, presidents look at race to appeal to voting blocs. When President Obama appointed Sonia Sotomayor to the Court, it surely helped him gain a number of votes in the Hispanic community, which was essential since he wanted to be re-elected in 2012.
Gender is another important determinant in appointing a judge or justice to the Court. Like minorities, women have not held many spots on the nation's highest court (or lower courts for that matter). Women make up just over half of the nation's population, but only four have ever served on the Supreme Court. Currently, three women hold positions as justices, the highest the level has ever been at one time.
Presidents also look to secure voting blocs by appointing women to positions of power, and Obama's appointment of Sotomayor, and later Elena Kagan most likely helped secure more of women's votes in the Election of 2012.
Keep in mind that even when presidents attempt to include minorities or women in appointments to the judiciary, the appointees must be people who are well-qualified for the job. The notion of appointing someone only because of their race or gender can blow up in a president's face.
This was the case in 2005, when President George W. Bush appointed Harriet Miers to fill a vacancy on the Supreme Court. Miers had served as White House Legal Counsel and part of Bush's administrative team in Texas, but was not exemplary in her time as a corporate attorney and she had never served as a judge at any level. The level of criticism from all groups was so high, that Miers willingly withdrew her name from consideration.
The age of a potential nominee to the judiciary or the Supreme Court is also taken into account. When most people hear that age is a consideration for selection, they tend to think that a president would pick a more seasoned individual who has more years under their belt. However, this isn't necessarily true. Presidents want to pick a person who is relatively young, particularly when that person will serve on the Supreme Court. Why? Because that younger individual is more likely to be in that position for a very long time, which means the president's ideas will be reflected for a long time to come.
Consider the fact that Antonin Scalia is still on the Supreme Court, nearly 30 years after his appointment! He was placed on the Court by President Ronald Reagan, a very conservative leader whose policies and ideas are no doubt still apparent in Scalia's work today.
Presidents also examine the political ideology and the party affiliation of a particular candidate. It only stands to reason that a president would want a like-minded individual in a position of power. That's one of the perks of being president. However, most presidents realize that their judicial selection must be confirmed by the Senate, so they avoid the more radical elements of their party.
Though it's somewhat connected to ideology, presidents must take into consideration the judicial philosophy of a nominee. Judges tend to come from two schools of thought: judicial activism and judicial restraint.
Judicial activism pertains to when a judge will allow their decision making to be guided by their own personal views and feelings about a particular policy, rather than basing decisions primarily upon the law. People who identify with this philosophy often convey a sense of loose constructionism, where they interpret the Constitution as having a more fluid meaning that changes with each generation.
Judges who operate under the principle of judicial restraint believe a court should be guided by precedents and the law itself. Judges should strive to remove their own feelings and opinions from the cases they hear. Those who adhere to the idea of judicial restraint are often believers in the idea of strict constructionism, where they interpret the Constitution based on its original meaning.
The Senate's Role ...
Once a president has made his choice for a judicial nominee, the Senate has the important task of determining whether or not to confirm that individual. Before the Senate votes as an entire body on the nominee, the Judiciary Committee will hold hearings to question that person about their experiences in the legal field. It's an opportunity to determine if the person is truly qualified for the position.
In the past, the role of the Senate was more of a formality in appointment of judges. However, the increased importance of the courts has seen the Senate become far more critical of any judge appointed by a president.
During the hearings for a Supreme Court nominee, the Judiciary Committee investigates and questions the individual with great scrutiny. They also attempt to apply what are known as "litmus test" questions. These questions pertain to a particularly controversial issue such as abortion or same-sex marriage. The responses to these hot-button issues often determine whether or not a senator will vote to confirm a nominee.
After a thorough round of questioning, the Judiciary Committee offers its recommendation to the entire Senate as to how they believe the body should vote on the nominee. At that point, senators have a few options.
If the minority party objects strongly a nominee, they can attempt to filibuster a Supreme Court nominee to prevent a vote from ever occurring. However, Senate rules do not allow filibusters to occur for the nominations of district court judges or circuit court judges.
If no filibuster occurs, then the entire Senate will vote on whether to confirm or deny a judicial appointment. A majority vote of present senators is all that is needed to confirm an appointment.
The federal court system is entirely separate from the individual state court systems. The Constitution states that a Supreme Court must exist, but Congress has the ability to create inferior courts as they see fit.
The federal court system has three distinct levels that deal with most judicial issues that may arise.
- Federal districts courts are the lowest level, where almost all federal cases start.
- Federal Circuit Courts of Appeal handle any cases appealed up from the lower courts.
- The United States Supreme Court is the final authority where disputes are decided.
Two main types of law exist at any level of judicial proceedings: criminal law and civil law. Criminal laws represent violations of behavioral standards of society. For instance, stealing is considered an unacceptable form of behavior. The penalty for violating most criminal laws is having your freedom temporarily taken away. If you are caught stealing, you will probably be required to spend time in jail. Of course, the more severe the crime, the longer a person must be kept isolated from the rest of society. When a criminal law is broken, the government (either the state or federal) conducts a trial of a person to determine if they are indeed guilty of a crime. When a person is on trial in a federal court, the United States government represents the prosecution, while the person is considered the defendant. This is why many cases are labeled something similar to United States v. John Smith. The federal government is accusing John Smith of some crime. If a state accuses an individual of breaking a law, the case would be labeled West Virginia v. William Jones.
Because of the high volume of criminal activity in the United States, most cases don't actually go to trial. Typically, the government has enough evidence to convict a person when they bring charges against them. Thus, most criminal defendants will enter into a plea bargain rather than go to trial. A plea bargain is an agreement between the prosecution and defense, where the defendant admits his guilt in return for a more lenient sentence. Plea bargains allow the government to focus resources on more violent crimes and not use the court's time on smaller, non-violent offenses.
In cases where a defendant chooses to go to trial, they have rights that must be protected, including the right to a speedy trial, the right to legal counsel, and a right to a jury trial.
The right to legal counsel has been interpreted to mean the government must provide an attorney to defendants if they are unable to afford one. A jury trial is also an important guarantee, whereby a group of citizens must determine if a defendant is guilty of the charges. For the purposes of the federal government, juries consist of 12 individuals and must have a unanimous decision to render a verdict. Juries are to give the presumption of innocence until proven otherwise. In a criminal case, the burden of proof is on the prosecution. Juries must convict based on the principle that a person must be guilty beyond any reasonable doubt.
Criminal law only represents part of the judicial system in America. Civil law pertains to settling disputes between two parties that does not necessarily involve violating a behavioral standard. When you think civil law, you should think of lawsuits. When one person or group believes they have been wronged by another party, the have the right to sue. However, any person claiming they have been damaged must demonstrate standing to sue. Standing means that you must show that the other party has somehow caused or will cause you harm or damage.
In any lawsuit, the person or group bringing the complaint is considered to be the plaintiff, and the party they are suing is the defendant. Since these cases don't usually involve the government, it's two private entities that are listed in the case name, i.e. Smith v. Jones. Civil cases are also decided by a jury, but the standard for determining the outcome of a case differs from a criminal case. Civil cases use what's called the preponderance of evidence, which means they decide which side of a case is more probable to be true.
Let's take a look at a lawsuit that many Americans have some familiarity with: Liebeck v. McDonald's Restaurants. In this instance, 79 year old Stella Liebeck spilled hot coffee on herself after prying open the cup's lid to put cream and sugar into the coffee. Liebeck sustained third degree burns on thighs and groin, which put her in the hospital for an extended stay. At only 100 pounds, she lost 20% of her body weight while in the hospital, and after released, her daughter took time away from work to care for Liebeck (who also was partially disabled for two years afterward).
Liebeck brought a lawsuit against McDonald's, claiming they were grossly negligent in not effectively providing warning that the coffee was extremely hot, and they were brewing their coffee at extremely dangerous temperatures. She offered to settle out of court for $20,000 to cover her medical expenses and lost income of her daughter. McDonald's refused.
The judicial system can't try McDonald's under criminal law. What would you charge them with? Assault and battery? We don't have crimes against negligence per se. This is precisely what civil law is designed to do -- settle disputes. Moreover, this allows corporations and individuals to be held responsible for their actions.
Levels of Federal Courts
The three main levels of federal courts almost always begin at the federal district court level. The United States is divided into 94 specific districts to handle the criminal and civil proceedings at the federal level. Each district has a district attorney responsible for representing the government in instances where the United States is a party. These attorneys are appointed by the president and confirmed by the Senate.
When a lawsuit is filed, or a crime is committed in a particular district, the trial must take place in that district. Each district has a different number of judges working in the area, depending upon the amount of cases in a given district. Federal district judges obtain their position through an appointment from the president, and they have a lifetime tenure. Their appointments must be confirmed by the Senate through a majority vote.
Federal district courts have what is commonly known as original jurisdiction, which is a particular type of authority. This means cases must originate at this court. No case can be appealed up to the federal district court. Imagine it as the ground floor of a building. These courts are where an actual trial occurs, evidence is presented, and a verdict is rendered by a jury.
At the district court level, if a defendant is convicted of a crime or an individual loses a civil case, they have the right to appeal the case to a higher court for review. In this case, the next level of the court system is the United States Circuit Court of Appeals. The 94 districts are grouped together into 11 main circuits, which hear cases that are appealed up from district courts.
The circuit courts hold a different type of authority than district courts. The circuit courts have appellate jurisdiction, meaning they have the ability to only hear cases appealed up from a lower court. Cases do not originate at the circuit courts.
When cases are appealed to the circuit court, the proceedings are very different. There is no jury present, nor is any evidence presented. A panel of three judges will examine the lower court's decision and listen to the attorneys present arguments about why the lower court might have made a mistake of some kind. The three judges will then vote to uphold or overturn the lower court's decision.
The judges in the courts of appeal also receive their appointments through the president and then are confirmed by the Senate. The number of judges working in each circuit varies based on the amount of cases they hear. When a case arises in a particular circuit, three random judges are assigned to that case. When a court of appeals makes a ruling, their decision is also subject to appeal. A party may appeal the decision to the United States Supreme Court for review.
The Supreme Court is unique from the two lower levels of courts. Its existence is required because the Constitution states as much. The number of judges, or justices, currently stands at nine, but the Constitution does not specify the number of justices on the Court. Congress holds the authority to expand or contract the number of justices and they have done so on many occasions. However, the number has been stable at nine for well over a century.
Unlike members of Congress or the president, the Supreme Court justices have no official qualifications written in the Constitution. They receive a lifetime positions through an appointment from the president and confirmation by the Senate. Despite having no official qualifications, justices are often well into their 50s and 60s when appointed to the Court. It takes a great deal of experience as an attorney and judge for a person to receive a nomination for the Supreme Court. Presidents take these nominations very seriously because the justices they choose are often a reflection of their own values and beliefs -- an extension of their own personal legacy.
The Supreme Court has both original and appellate jurisdiction. Though most of its cases come from appeals through lower courts, there are a few types of situations where a case can go directly to the Supreme Court. These cases typically involve controversies between states or when a foreign entity is party to a dispute. It's also important to note that cases can be appealed to the Supreme Court through the federal courts AND through state courts.
The types of cases heard by the Court usually involve some type of controversy that pertain to an interpretation of a provision in the Constitution. The Court has the ability to deny hearing cases appealed to them.
How the Supreme Court Operates
The Supreme Court is a strange entity compared to the rest of the federal government. Their schedule for hearing cases runs from October to June. Their summer months typically only involve announcing their decisions. During their time for hearing cases, the Court typically works in two-week intervals, where they will hear cases during for two weeks and then take off for two weeks to conduct research on legal issues, discuss cases and make decisions.
The Court's physical environment and surroundings are very much oriented to provide a feeling of ceremony and importance. The building that houses the Court is ornate, complete with exterior Corinthian columns that give off a vibe reminiscent of the Parthenon. The interior of the building is replete with marble floors and other complex fashioning. The door to the courtroom chamber is obnoxiously large and the inner courtroom holds a large set of Ionic columns surrounded by red drapes. The justices sit at elevated bench while donning black robes. No video cameras are allowed to cover the proceedings of the Court.
Many attorneys and observers of the Court jokingly (and probably condescendingly) refer to it as "the temple" for its seemingly religious-like ceremonial pomp and circumstances.
Of the Court's nine justices, one is designated as the Chief Justice of the United States. The Constitution does not designate any specific powers or authority to the Chief, however, it is a significant position nonetheless. The power of the Chief is often described as being "first among equals." The Chief is responsible for creating an overall direction of the Court, but the power of the position often comes from the person who holds it.
To have a case heard by the Supreme Court, a party must obtain a writ of certiorari, which is written permission from the Court to hear a case. The Court has no obligation to hear cases appealed up to them. They control their own agenda, which gives them an advantage that neither of the other two branches have. If the public brings an issue to the president or Congress, avoiding the voters is done at their own peril. In instances where the Court declines to hear a case, the lower court's ruling will stand.
To receive a writ of certiorari, the justices use a concept known as the rule of four, where a case will be accepted if any four justices believe it is worthy of hearing before the entire Court. Annually, the Court hears approximately 80 cases, a small workload considering that thousands apply for a writ.
Once a case is schedule to be heard by the Court, attorneys for both parties will send in legal briefs, which are summaries of their arguments. This is done so that justices may familiarize themselves with the various issues at stake, and prepare questions for the attorneys. When a case is heard in front of the Court, both attorneys have precisely 30 minutes to present their argument. During this time span, the justices frequently interrupt to ask questions. Some justices are very active in questioning, such as Chief Justice John Roberts. Others, such as Clarence Thomas, rarely speak during oral arguments.
After the oral arguments of a case have been presented, the justices engage in what's called a conference session, where they will discuss the case and ultimately vote on how they will rule. Even the conferencing of the justices has ceremony involved. The nine members of the Court meet in a special room that has few adornments (except for a portrait of John Marshall). When the justices enter the room, they take part in a tradition where every person shakes hands with all other justices, as a semblance of professionalism and cordiality before they start arguing about the merits of a case. The justices do not record the conference meetings, nor is anyone else permitted into the room.
 |
| The Court's Conference Room |
During conferencing, the justices all have an opportunity to share their thoughts about the case. The Chief Justice speaks before anyone else, and then each justice speaks in order of seniority on the Court. The newest member of the Court always speaks last (this justice is also responsible for answering the door). Of course, by the time the last justice speaks, most of the significant aspects of the case have already been discussed.
Once each justice has had the chance to share their thoughts on the case, the justices then take a vote. The newest justice casts the first vote, and then the justices cast votes in ascending order of seniority, with the Chief Justice voting last. One of the perks of being the Chief is having the final say in a case, which is particularly important when a case is divided 4-4.
When the justices arrive at a decision in their voting, one of them will write an official opinion of the court. This is a written explanation as to why the majority of the Court arrived at their decision. An official opinion is written in every case. If the Chief Justices is in the majority, he will assign the task of writing the opinion to one of the justices. Opinion writing is an important task because the author is essentially writing the legal standards and precedents for the future. It affects the entire nation and for that particular justice, it's a part of their personal legacy.
Some Chief Justices, such as John Marshall, frequently assigned the opinion to themselves. Others, such as current Chief Justice John Robert, make a priority to make certain every justice as an opportunity to write a majority opinion before any other justice is assigned a second one. When the Chief Justice is not in the majority, the senior most justice will assign the opinion.
When any justice does not vote with the majority, they are free to write a dissenting opinion, which is an explanation as to why they believe the case should have been decided differently. Dissenting opinions are often written with the hope of providing some form of legal basis for future generations to possibly overturn a particular ruling.
A justice is also permitted to write what's called a concurring opinion, where they voted with the majority of the Court, but for different legal reasons than the official opinion.
When justices vote and make their decisions on cases, they are typically guided by precedent -- how similar cases in the past have been decided. This concept is also referred to as stare decisis, which is a Latin phrase meaning "let the decision stand." Using this basis for deciding cases helps create a level of stability for the interpretation of laws in the nation.
Though precedent serves as a guidepost for how cases should be decided, the Court will sometimes overturn, or change precedent. But how does the Court know when to do this? The Court tends to overrule itself, or alter precedent, when something about society has significantly changed. There must be a change in the facts of an issue or a perception of those facts. The Court also takes into account how much the public has relied on a particular law.
An instance where the Court overturned a significant precedent came in Brown v. Board of Education (1954), when they ruled that the legal concept of "separate but equal" was unconstitutional. This negated the decision in Plessy v. Ferguson (1896), where the Court ruled racial segregation was acceptable, provided public accommodations were equal. What changed in the nearly 50 years between these two decisions? Prejudices that were once thought to be based on fact were disproven, and attitudes of Americans changed. Thus, the Court corrected what they believed to be a grievous mistake.
Another key component in the work of the Supreme Court is the role of the Solicitor General. This individual is responsible for representing the federal government in any case where the United States is a party. Because of the frequency with which the Solicitor General appears in the Court, this person is often referred to as the "10th Justice." The Solicitor General also has the discretion to determine which cases the United States will actually appeal to the Supreme Court.
Checks on the Court
The Supreme Court is a large part of the federal government and was meant to have protection from the inflamed opinions of the public, but that doesn't mean the Court doesn't have restraints that prevent wild decision making on their part.
One of the most profound checks against the Supreme Court was foreseen by the founders and mentioned in Federalist #78, where Alexander Hamilton wrote, "... It may truly be said to have neither force nor will, but merely judgment." Congress has the "power of the purse," the ability to control government spending. The president holds the "power of the sword," which allows control of the armed forces. The Supreme Court holds no weapon. The biggest problem of the Court is that they do not have the ability to enforce their decisions. They must rely on the executive branch for enforcement.
Can you answer: What would happen to the authority of the Supreme Court if the president refused to enforce their decision?
Can you answer: What are the other ways in which the Supreme Court's decision making can be restrained by Congress and the president?
Protection from the Other Branches
Though the Supreme Court is not all powerful in their decision making, they do have a great amount of freedom in ruling on controversies based on the law rather than outside influence from the public or the other two branches of government.
Some of the factors that prevent outside influence of the Court:
- Federal judges' salaries cannot be reduced
- Justices receive a lifetime appointment
- Justices are appointed, not elected
- Justices control their own agenda
- Justices do not allow camera coverage during oral arguments
The Politics of the Judicial appointments
Despite the best efforts of the Framers to limit the amount of political interference from the other branches and the public, it hasn't been completely eliminated. The process of appointing and confirming federal judges and Supreme Court justices is highly politicized.
When the president makes choices about whom to appoint to judiciary positions, there are multiple factors to consider.
One of the ways in which a president will determine his choices for a federal judgeship is to seek the opinion of the American Bar Association (ABA), a professional group for those in the legal profession. The ABA prepares a list of those in the legal profession whom they believe would be good candidates for a vacancy on the Supreme Court and other openings in the federal courts. The president has no mandate to choose based on the ABA's recommendations, but most presidents have believed it to be the prudent thing to do.
When appointing judges to federal district courts or to circuit courts, a president also employs what's known as a senatorial courtesy. Before a president officially grants an appointment for a role as a judge, he will consult the senators of that state to see if they have any objections to that particular individual serving in their home state.
When appointing judges at lower courts or the Supreme Court (especially), presidents consider many other factors. One of these is the race of a potential nominee. While a president would never admit it, the race of a person is a significant factor. Why? Presidents consider their legacy when making these appointments because it looks good for their record to appoint a qualified minority. President Obama can lay claim to the fact that he appointed the first Hispanic justice in Supreme Court history.
Also, presidents look at race to appeal to voting blocs. When President Obama appointed Sonia Sotomayor to the Court, it surely helped him gain a number of votes in the Hispanic community, which was essential since he wanted to be re-elected in 2012.
Gender is another important determinant in appointing a judge or justice to the Court. Like minorities, women have not held many spots on the nation's highest court (or lower courts for that matter). Women make up just over half of the nation's population, but only four have ever served on the Supreme Court. Currently, three women hold positions as justices, the highest the level has ever been at one time.
Presidents also look to secure voting blocs by appointing women to positions of power, and Obama's appointment of Sotomayor, and later Elena Kagan most likely helped secure more of women's votes in the Election of 2012.
Keep in mind that even when presidents attempt to include minorities or women in appointments to the judiciary, the appointees must be people who are well-qualified for the job. The notion of appointing someone only because of their race or gender can blow up in a president's face.
This was the case in 2005, when President George W. Bush appointed Harriet Miers to fill a vacancy on the Supreme Court. Miers had served as White House Legal Counsel and part of Bush's administrative team in Texas, but was not exemplary in her time as a corporate attorney and she had never served as a judge at any level. The level of criticism from all groups was so high, that Miers willingly withdrew her name from consideration.
The age of a potential nominee to the judiciary or the Supreme Court is also taken into account. When most people hear that age is a consideration for selection, they tend to think that a president would pick a more seasoned individual who has more years under their belt. However, this isn't necessarily true. Presidents want to pick a person who is relatively young, particularly when that person will serve on the Supreme Court. Why? Because that younger individual is more likely to be in that position for a very long time, which means the president's ideas will be reflected for a long time to come.
Consider the fact that Antonin Scalia is still on the Supreme Court, nearly 30 years after his appointment! He was placed on the Court by President Ronald Reagan, a very conservative leader whose policies and ideas are no doubt still apparent in Scalia's work today.
Presidents also examine the political ideology and the party affiliation of a particular candidate. It only stands to reason that a president would want a like-minded individual in a position of power. That's one of the perks of being president. However, most presidents realize that their judicial selection must be confirmed by the Senate, so they avoid the more radical elements of their party.
Though it's somewhat connected to ideology, presidents must take into consideration the judicial philosophy of a nominee. Judges tend to come from two schools of thought: judicial activism and judicial restraint.
 |
| Activist judges use the Court as a means of influencing policy as they see fit ... |
Judges who operate under the principle of judicial restraint believe a court should be guided by precedents and the law itself. Judges should strive to remove their own feelings and opinions from the cases they hear. Those who adhere to the idea of judicial restraint are often believers in the idea of strict constructionism, where they interpret the Constitution based on its original meaning.
The Senate's Role ...
Once a president has made his choice for a judicial nominee, the Senate has the important task of determining whether or not to confirm that individual. Before the Senate votes as an entire body on the nominee, the Judiciary Committee will hold hearings to question that person about their experiences in the legal field. It's an opportunity to determine if the person is truly qualified for the position.
In the past, the role of the Senate was more of a formality in appointment of judges. However, the increased importance of the courts has seen the Senate become far more critical of any judge appointed by a president.
During the hearings for a Supreme Court nominee, the Judiciary Committee investigates and questions the individual with great scrutiny. They also attempt to apply what are known as "litmus test" questions. These questions pertain to a particularly controversial issue such as abortion or same-sex marriage. The responses to these hot-button issues often determine whether or not a senator will vote to confirm a nominee.
After a thorough round of questioning, the Judiciary Committee offers its recommendation to the entire Senate as to how they believe the body should vote on the nominee. At that point, senators have a few options.
If the minority party objects strongly a nominee, they can attempt to filibuster a Supreme Court nominee to prevent a vote from ever occurring. However, Senate rules do not allow filibusters to occur for the nominations of district court judges or circuit court judges.
If no filibuster occurs, then the entire Senate will vote on whether to confirm or deny a judicial appointment. A majority vote of present senators is all that is needed to confirm an appointment.
No comments:
Post a Comment