AG7D

Chapter Ten The Federal Judiciary Brian M. Murphy

Learning Objectives After covering the topic of the federal judiciary, students should

understand:

1. The relationship of state courts to the federal judiciary. 2. The jurisdiction of federal courts. 3. The structure of the federal judicial system. 4. The procedures of the U.S. Supreme Court. 5. The powers of the federal judiciary.

Abstract The udicial y e i he i ed a e i a ed he d c ri e

federalism. Two court systems exist side-by-side, national and state, and each has a distinct set of powers. State courts, for the most part, are responsible for handling the legal issues that arise under their own laws. It is primarily when a federal uestion is presented that the federal udicial system can become in ol ed in a state court. therwise, state udiciaries are generally autonomous even from one another. The Constitution precisely outlines the types of cases that can be heard by federal courts, yet it is almost impossible to force a federal court to hear a case that falls under its urisdiction if the udge s wants to avoid it. The authority of the U.S. Supreme Court has slowly grown over time, largely through the power of udicial review. onetheless, federalism has managed to remain a signi cant barrier against federal courts becoming too powerful. The udicial system designed by the framers continues to survive and function

after 200 years.

Introduction The federal judicial system is the least commonly known and least

understood branch of American government. In 2007, 78% could not name the current Chief Justice of the U.S. Supreme Court but 66% were able to identify at least one of the judges on the T show American Idol (Jamieson, 2007). Much of judicial work is conducted out of the limelight and courts are not considered an important in uence in the daily lives of people. It is clear the framers believed that the federal judicial system would be the weakest of the three branches because, as Alexander

amilton wrote, it has no in uence over either the sword or the purse (Hamilton, 1961, 465). In other words, courts cannot command an army (or even police) to ensure that decisions are enforced or allocate money to implement one of their rulings. Judges must depend on the other branches in order to get anything done. According to an oft-repeated story, President Andrew Jackson supposedly mocked a decision by Chief Justice John Marshall with the words, John Marshall has made his decision, now let him enforce it’’ (Schwartz, 1993, 94).

But times and the role of the federal judiciary have changed. One scholar even concluded that the United States is now operating under a

government by judiciary’’ because the U.S. Supreme Court can revise the Constitution by how it interprets the wording (Berger, 1997). As Chief Justice Charles vans Hughes once uipped, e are under a Constitution, but the Constitution is what the judges say it is’’ (Hughes, 1916, 185).

The actual power of federal courts lies between these two extreme viewpoints. While the federal judiciary remains dependent on Congress and the president to enforce judicial rulings, the courts are not powerless in the tussle over checks and balances. This chapter carefully examines judicial power and de nes the powers and limitations of federal courts. What must be kept in mind, however, is that relatively few cases ever end up in federal courts. Most judicial decision-making takes place at the state level. The old adage that I’ll ght all the way to the U.S. Supreme Court’’ is legally impossible in the overwhelming majority of cases. State courts handle most of the legal action in the United States, so that is where we will start our discussion of the judicial system. In other words, federalism applies to the judicial system as well.

tate ourt ste s In the United States, two court systems exist—federal and state—and

there is remarkably little overlap between the two. In most situations, decisions on matters of state law are resolved by state courts, and no federal court, not even the U.S. Supreme Court, can overrule, which means state courts usually render the nal judgment on most cases involving state law. The principal way a case from state court can end up in the federal judiciary is when a federal question is involved in a dispute. A federal uestion is de ned as a legal issue that concerns a federal law, federal

treaty, or federal Constitution.

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Let us look at an example. Suppose an African American walks into a restaurant in a small town and is forcibly thrown out by the owner, breaking the visitor’s arm. This scenario presents several potential legal claims, including aggravated assault and the violation of federal civil rights laws. The rst issue, aggravated assault, constitutes a uestion of state law, while the civil rights claims are federal in nature. Where will this case be heard? Since state law is at stake, the case will go to a state trial court. What about the federal questions? Contrary to what some believe, state courts have the authority to decide federal questions when they are mixed with state law.

Judges in state courts are bound by two legal constraints in deciding cases that combine state and federal issues. irst, Article I, Section 2 of the U.S. Constitution, called the u re ac lause, declares the following:

This Constitution, and the Laws of the United States … and all Treaties … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the constitution or Laws of any State to the contrary notwithstanding.

As such, judges at the state level must swear to obey the federal Constitution, laws, and treaties regardless of state law. If there is a con ict between the two, the Supremacy Clause requires a state judge to enforce federal law over state law. The second legal constraint on state judges involves the interpretation of federal law. Does the state’s supreme court, for example, have the authority to instruct lower courts in its state how to interpret a federal law? In 1816, the U.S. Supreme Court ruled that state courts are bound by its holdings on federal questions (Martin v. Hunter’s Lessee, 1816) no matter what the state’s highest court has decided on the issue. In short, state judges must apply the rulings of the U.S. Supreme Court in deciding federal questions and should ignore any state law or state court ruling that is in contradiction.

Now, let us take another look at the restaurant dispute. At trial, the state court can rule on both the aggravated assault and civil rights issues. However, the judgment on aggravated assault should be based on state law while the civil rights controversy should follow the rulings of the U.S. Supreme Court. Will a jury be used? In a state case, the right to a

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jury trial varies depending on whether a criminal or civil case is involved. A jury trial in a criminal case is available under the Sixth Amendment when a jail term of six months or more is a possible outcome of a trial (Duncan v. Louisiana, 1968). A civil case differs from a criminal case in several ways: (1) a criminal case involves either jail time or a ne as an outcome while a civil case is seeking either monetary damages (e.g., to cover injuries suffered in an auto accident) or a declaration of rights (e.g., to decide who owns a piece of property or who has custody of a child); (2) the government is always a party in a criminal case while a civil case is a lawsuit between private parties; (3) the government’s burden of proof in a criminal case requires establishing guilt beyond a reasonable doubt while the burden of proof in a civil case is the preponderance of evidence (i.e., the winning side is the one with the majority of evidence in its favor); and (4) states are under no constitutional mandate to provide juries in any civil case, although states are not forbidden from allowing them (Minneapolis & St. Louis R.R. v. Bombolis, 1916).

The O.J. Simpson murder case illustrates the differences between criminal and civil trials. Simpson was charged criminally with the murder of his ex-wife (Nicole Brown) and Ronald Goldman. Simpson was famously acquitted of both murders in 1995. A few years later in 1997, however, Simpson lost a civil suit to the families of Brown and Goldman for battery (touching without consent) and for wrongful death (causing death without legal justi cation)—the latter a civil parallel to murder. Legally, the outcome of a criminal case has no bearing on a civil case for the same act because the burdens of proof are not the same. Consequently, Simpson was found liable (the term guilty does not apply in a civil case) for $33.5 million for the wrongful death of Goldman, battery against Goldman, and battery against ex-wife Brown. In other words, O.J. Simpson was not guilty of murder but liable for causing the wrongful death of the same person!

Since all states guarantee the right to one appeal, a higher court can review the trial court’s decision. It should be noted that the U.S. Constitution has no speci c provision that requires the right to appeal a trial court’s decision, even in cases heard in federal courts. The right to appeal is possible solely because every state as well as the federal government has enacted this right into law and, at least in theory, it can be taken away.

An appeal is not possible merely because the loser is unsatis ed with the outcome of a trial. Nor can a person appeal claiming innocence. Rather,

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appeals can only be based on a question of law that alleges an error(s) in procedure or law occurred at the trial (e.g., evidence that should have been excluded was allowed or a juror was biased and should not have been permitted to serve). In practical terms, an appeal is contending that the judge made a mistake during the trial that could have impacted the outcome. Since an error in legal procedure or law is the basis of the claim, no juries exist in appellate cases because the average person lacks a legal education to know whether the judge committed a legal error. Juries are only found in trial courts and are used to determine questions of fact, such as guilt or innocence. Judges decide all questions of law during a trial. If a person declines a jury trial, the judge acts as both judge and jury (known as a bench trial).

In a criminal case, only the defendant can appeal if convicted. The government cannot appeal an acquittal. However, either party can appeal after the verdict in a civil case. Why would the winning party want to appeal? Consider Ward Churchill, a tenured professor at the University of Colorado. On the day after the destruction of the World Trade Centers on September 11, 2001, he wrote an essay comparing some of the workers in the buildings to Adolf Eichmann, who coordinated the Holocaust for Nazi Germany. Outrage emerged on a national level as the essay slowly worked its way across the internet. Churchill was eventually investigated by the university for this writing as well as on allegations of plagiarism. The University of Colorado Board of Regents red him in 2007 for repeated and intentional academic misconduct. In 2009, a jury decided that he had been red in retaliation for his article but only awarded $1 in damages. Although Churchill won the civil case, he might contemplate appealing in an effort to collect a higher settlement.

Another popular misconception is that a person can be found innocent on appeal. It cannot happen, of course, because an appeal can be based only on questions of law, not questions of fact. If a person wins on appeal, the usual result is that a new trial is conducted before a different judge and jury, with the legal error from the rst trial being corrected. Take the famous case of Ernesto Miranda, who was convicted at trial for sexual assault. Miranda appealed to the U.S. Supreme Court, which held that Miranda’s confession could not be used as evidence because he was never warned about his right to refuse to answer police questions. Miranda was not set free but was given a new trial in which he was again convicted because

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enough evidence of guilt existed without his confession. Thus, a person on re-trial after a successful appeal can lose again and even receive a harsher sentence than the original penalty. Appeals are clearly not without risk.

Once the trial is over, a decision must be made on whether to appeal. All states allow only a certain number of days to make this decision or the right is forfeited. In the restaurant case, let us assume the plaintiff (the person bringing the case) lost on both issues at the trial court. Speci cally, the jury decided that no aggravated assault took place because the restaurant owner (the defendant, or the person being sued) was defending himself and no civil rights violation occurred since the plaintiff was kicked out for being unruly. Where will the appeal be heard?

Most states and the federal government have three levels of courts in their judicial system:

Trial courts that determine questions of fact Intermediate appellate courts (found in most, but not all, states) where decisions on questions of law are made by judges sitting without juries State supreme courts (although the highest court is not always called supreme’’ in all states) that—for the most part—hear appeals from intermediate appellate courts. If no intermediate appellate court exists in a state (http://www.appellatecourtclerks. org/links.html), an appeal from a trial court’s decision is taken directly to the state’s highest court

In our example, let us assume that the intermediate and state supreme courts both upheld the decision of the trial court. Now what?

The decision on state law (aggravated assault) is over and no further appeal is possible. The decision of the state’s highest court will be the nal word because aggravated assault is a matter of state law. With respect to the federal question (a possible civil rights violation), the losing party can appeal directly to the U.S. Supreme Court. No other federal court, in fact, is allowed to take the case.

Aside from an appeal from a state’s highest court to the U.S. Supreme Court, there are two other ways in which federal courts can become entangled with state courts. Upon conviction in a criminal case and an unsuccessful appeal to the state’s highest court, a prisoner can le a habeas corpus petition to a federal trial court (called a U.S. District Court)

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claiming that a violation of a federal constitutional right took place (such as not being allowed to cross-examine a key witness). If granted, the federal judge will issue a writ of habeas corpus — which translates into you have the body’’ — to the jailor requesting that the prisoner be brought before the U.S. District Court to determine the legality of detention. In this way, habeas corpus serves as the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action’’ (Harris v. Nelson, 1969). Much like an appeal, a new trial at the state level will generally be ordered if the federal judge nds that a constitutional right was indeed denied. The new trial is designed to correct whatever error happened in the initial hearing.

The nal way federal and state courts interact is through a diversit suit. These cases arise when citizens of different states (hence the word

diversity’’) are involved in a civil case. The framers were concerned that an unbiased court would not exist in a diversity suit because state judges might favor citizens from their own state. Consequently, the Constitution (Article III, Section 2) empowered Congress to grant federal courts the authority to handle such cases, and in the Judiciary Act of 1789, this jurisdiction was assigned initially to federal circuit courts. Certain cases are exempt from diversity jurisdiction since it would be inappropriate for federal courts to become involved. These cases include divorce, alimony, custody, wills, and the administration of estates. In deciding a diversity case, a federal judge will actually apply the appropriate state—not federal—law that governs the situation.

Over time, the number of diversity cases exploded to the point where the federal judiciary became overwhelmed. Congress responded by shifting less important diversity cases (currently de ned as a lawsuit that has less than $75,000 at stake) to state courts. If the amount in controversy exceeds $75,000, the defendant (the person being sued by the plaintiff) has a choice between taking the case to state court or to a U.S. District Court.

The relationship between state and federal courts can be summarized as follows:

State judges must apply federal law over state law if the two are in con ict. Appeals from a state’s judicial system are submitted from the state’s highest court directly to the U.S. Supreme but only the parts of the case that concern federal questions.

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Habeas corpus petitions from prisoners convicted of a state crime can be reviewed by U.S. District Courts if the breach of a federal constitutional right is alleged. U.S. District Courts may hear a civil suit between citizens of different states if $75,000 or more is at stake and the defendant elects federal over state court.

While separate, state and federal courts do interact on a narrow but important range of issues.

State court systems are entirely independent from each other. The decision of a state court rarely has an impact outside its own borders. The lone exception—mandated by Article I, Section 1 of the U.S. Constitution—requires each state to give full faith and credit to the judicial decisions in other states. This clause means that a decision issued in one state will be respected by all other states (Mills v. Duryee, 1813). The Full Faith and Credit Clause is intended to prevent a person who loses a case to avoid compliance by moving elsewhere. Thus, if a defendant loses a civil case in Pennsylvania and is ordered to pay $15,000, the defendant cannot escape the decision by changing residence to Georgia. The plaintiff merely has to le suit in Georgia to have the judgment enforced against the defendant. There is no need for a new trial since a valid and nal decision was already rendered. The clause is frequently used in marriage and divorce situations. People, for example, will sometimes marry in a state with lower age requirements, return to their home state, and the marriage must be honored—even though it would be illegal if performed in that state. The Full Faith and Credit Clause, in short, protects the integrity of each state’s judicial system in making its own judicial decisions.

ederal urisdiction Two conditions must be met in order for a case to be heard before a

federal court: jurisdiction and justiciability. urisdiction simply means that a court has the authority to decide a case. Article III of the U.S. Constitution outlines the kinds of cases federal courts are eligible to handle, but leaves it up to Congress actually to assign each potential area of jurisdiction. Congress can only provide federal courts with the powers allowed by the Constitution; it cannot expand federal judicial jurisdiction to cases beyond what are speci cally authorized in the Constitution.

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Moreover, Congress can change federal jurisdiction at any time by removing authority it had previously awarded to federal courts (Ex Parte McCardle, 1869). An effort to remove an area of federal jurisdiction is typically intended to deny federal judges the power to decide controversial issues. For example, members of Congress have introduced bills to deny federal courts the jurisdiction to hear cases involving abortion, prayer in the school, and busing to desegregate public schools. Such efforts almost always fail in Congress because they are driven by politics rather than legitimate legal concerns. The independence of the judiciary is too deeply a part of the American political culture to allow the politics of emotional causes to interfere.

The jurisdiction of federal courts can be established in one of two ways. First, the Constitution identi es certain topics (subject matter jurisdiction) as appropriate for federal courts: federal questions (issues arising under federal laws, treaties, and Constitution) as well as admiralt and maritime law (disputes involving navigation and shipping on navigable waters). Second, the Constitution delineates certain parties (part jurisdiction) as suitable to bring cases to federal court: (1) the U.S. government, (2) one of the states, (3) citizens of different states (diversity cases), and (4) foreign ambassadors and counsels. If a case involves either a subject matter or party that falls under federal jurisdiction, a judge will next examine whether the issue is justiciable.

Justiciable means that a dispute is a matter appropriate for a court to resolve. In other words, courts should not be bothered with problems where a judicial decision is not necessary. Why waste a court’s time? Judges look at ve factors in making this determination, any one of which could render a case not relevant for judicial consideration.

Case or controversy: The dispute must involve parties with a genuine con ict. Federal courts will not answer hypothetical questions. When George Washington sought advice about American neutrality during the European wars of the 1790s, the Supreme Court in a letter (not in a judicial ruling) declined to give an advisory opinion. Until an actual controversy arose about Washington’s policy on neutrality, the justices believed that federal courts would not know what was to be decided.

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Finality: A federal court’s decision must be nal. The concept of separation of powers would be violated if someone other than a higher court should have the authority to review and modify a judicial decision. Judges alone can make judicial rulings. When a congressional statute allowed the Secretary of War to review pension decisions made by federal courts, the Supreme Court held that the federal judiciary should not become involved because the Secretary of War could overturn whatever a judge decides on a federal pension ruling (Hayburn’s Case, 1792). Standing: The plaintiff must suffer personal damage to a right protected under federal law or the U.S. Constitution. When Congress enacted a law requiring mandatory drug testing to get a job at the U.S. Postal Service, the union representing postal employees sued on the grounds that the statute violated privacy rights. A U.S. Appellate Court ruled that the union lacked standing because the drug testing policy applied only to job applicants who were not yet members of the union (American Postal Workers Union v. Frank, 1992). The union itself, therefore, had not suffered any damage and thus had no standing. Political Questions: A federal court will not hear an issue that can be better handled by another branch of government. Consequently, the U.S. Supreme Court refused to rule on the constitutionality of the ietnam War by claiming that foreign policy decisions should be made by Congress and the president (Massachusetts v. Laird, 1970). A majority of justices argued that judges have no expertise that quali es them to be experts on international relations. The

ietnam War, in other words, was not a legal question but a political one. Timeliness: Cases must reach federal courts at a time when the outcome of a decision can make a difference. Judges will not take cases that arrive too early (ripe) or too late (moot). When a white male applicant was denied admission into the University of Washington Law School even though minority applicants with lower test scores had been admitted, a court ordered the white applicant to be enrolled pending resolution of the lawsuit. By the time the issue reached the U.S. Supreme Court, the white applicant was in his nal quarter of school and would graduate no

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matter what happened in the case. For this reason, the lawsuit was declared moot and no ruling was made (DeFunis v. Odegaard, 1974). Ripeness is the reverse of moot in the sense that a case is considered unprepared for decision. When a federal law prohibited federal civil service employees from taking part in political campaigns, a complaint by employees was thrown out because no one had yet been arrested (United Public Workers v. Mitchell, 1947). According to the Supreme Court, the threat of arrest does not mean anyone would actually be arrested under the law, so that there was nothing yet to decide.

Only the requirement of a case or controversy’’ is mentioned in the Constitution (Article II, Section 2); the remaining four factors have been created by the U.S. Supreme Court as elements of the Case or Controversy clause and are frequently used by federal courts as an excuse to dodge controversial cases. Take the ietnam War lawsuit that was evaded for being a political question.’’ Justice William Douglas challenged the majority opinion in a dissent complaining the case did indeed present a justiciable issue—whether the president had the constitutional power to engage in a military action without congressional approval. Was the legality of the ietnam War truly a political question’’ or was the Supreme Court merely dodging a problem on purpose because it was too controversial? In short, justiciability is an ambiguous concept that can be interpreted quite freely by federal judges. The bottom line is that justiciability enables a federal court to avoid a case it does not want to decide.

Once jurisdiction is established and a judge rules an issue justiciable, a case is eligible for a federal court to hear.

The Structure of Federal Courts Article III of the U.S. Constitution directly mentions only the U.S.

Supreme Court, but it empowers Congress to create additional federal courts as needed. Like most state systems, the federal judiciary today is divided into three levels: trial court, intermediate appellate court, and Supreme Court. The rst step in bringing a case to federal court is identifying the correct trial court in which to le suit. Congress has created a host of options, with the selection of the speci c trial court depending upon the issue at stake in the lawsuit. Here is a partial list of the complex alternatives: Contract claims against the federal government go to the

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U.S. Court of Federal Claims, international trade and customs issues are handled by the U.S. Court of International Trade, bankruptcy cases belong to U.S. Bankruptcy Courts, and federal income tax disputes are taken to the U.S. Tax Court. These courts are designed to handle narrow, highly technical issues and the judges are chosen on the basis of their background in these specialized areas of law.

An important distinction must be made between federal courts. Except for the U.S. Supreme Court, all other federal courts have been created by Congress but not under the same constitutional power. The most important federal courts were authorized under Article III, the section of the Constitution that deals with the judicial branch, and they are limited to exercising only judicial powers (i.e., deciding legal cases and controversies). These courts are the following: U.S. District Courts, U.S. Circuit Courts of Appeal, U.S. Supreme Court, U.S. Court of Claims, and U.S. Court of International Trade. The president nominates judges to serve on these courts, and appointment depends upon approval by the U.S. Senate. Article III judges hold their Of ces during good Behaviour,’’ meaning they cannot be removed except by death, resignation, or impeachment by the House of Representatives and conviction by the Senate. Even senility and incompetence are not grounds that can justify dismissal of an Article III judge. It is interesting to note that Article III does not spell out any speci c quali cations that must be possessed to be a federal judge; not even a law degree is a necessity.

Congress also created a series of federal courts under Article I, the section of the Constitution that involves the legislative branch. This section enables Congress more exibility in setting up courts because it is not restricted by the provisions of Article III in terms of powers and tenure. So-called Article I, or legislative courts are typically assigned certain non-judicial duties, such as administrative roles, and the judges do not have a lifetime appointment. Most, but not all, Article I judges are nominated by the president and approved by the Senate to serve a speci c term (8-15 years). The current list of legislative courts is the following: U.S. Magistrate Courts, U.S. Bankruptcy Courts, U.S. Court of Appeals for the Armed Forces, U.S. Tax Court, and U.S. Court of Appeals for

eterans Claims. In the past, Congress has changed the status of an Article I court to an Article III court to give the judges more independence.

The workhorses at the federal level are the 94 U.S. District Courts. These trial courts (courts of original jurisdiction) hear all crimes against

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the U.S., most federal civil actions, and certain diversity cases. Each state has at least one U.S. District Court and, based roughly on population, a state may be allocated extra court(s). Georgia, for example, has three U.S. District Courts while California has four. The number of judges assigned to a district ranges from two to twenty-eight. Moreover, U.S. District Courts can be found in the District of Columbia, Puerto Rico, and in three U.S. territories: The irgin Islands, Guam, and The Northern Mariana Islands. To relieve the heavy caseload (almost 400,000 cases are led annually with U.S. District Courts), Congress in 1968 created magistrate judges to deal with minor matters such as preliminary hearings, warrants, bail, and lesser criminal offenses.

As a trial court, U.S. District Court judges decide cases either alone or with a jury. Federal law requires District Court judges to write an opinion explaining their decision when sitting without a jury. The Sixth Amendment awards the right to a jury trial in all federal criminal cases, but $20 must be involved under the Seventh Amendment for the right to a jury trail to apply in a federal civil case. Most federal cases are resolved at the District Court level. Only about 10% of decisions are appealed on the basis of a question of law.

Congress has created 12 U.S. Courts of Appeal that have jurisdiction over a set of U.S. District Courts and federal agencies within a de ned geographic region (called a circuit). Each circuit, in turn, is numbered (see Figure 10.1). Thus the U.S. Court of Appeals for the Eleventh Circuit takes all appeals from the U.S. District Courts located in Georgia, Florida, and Alabama (nine District Courts in total). As noted, federal agencies (like the Social Security Administration) can render decisions and these too are appealed to the appropriate U.S. appellate court. A thirteenth appellate court, the Court of Appeals for the Federal Circuit in Washington, D.C., was launched in 1982 to manage appeals involving patents from anywhere in the country as well as appeals from decisions by the Court of International Trade and the Court of Federal Claims.

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A federal appellate court has from six judges (First Circuit) to twenty- eight judges (Ninth Circuit). The appellate judge in the circuit with the most seniority serves as chief judge until the age of 70, although the person can continue as a regular member of the court after reaching that age. Individual cases are generally heard in three judge panels without juries, with judges normally assigned to a panel by the chief judge. The winning party is determined by a majority vote. In rare cases (less than 1% of the total), all judges in a circuit—a requirement relaxed by Congress for appellate courts with 15 or more members—will be present for a case in what is known as an en banc hearing. Such hearings tend to take place either to deal with a controversial case or to review a panel’s ruling in the circuit. The fact that all, or almost all, appellate judges in the circuit are deciding the case is intended to give more weight to the eventual judgment. An en banc hearing may be requested by any member of the court and is convened when at least a majority of judges are in favor (some circuits require less than a majority vote).

The decision by a U.S. Court of Appeal is binding on all U.S. District Courts and federal agencies in the circuit. An appellate court, in other words, does not have the authority to issue compulsory orders outside its geographic jurisdiction. Thus it is possible for the interpretation of a federal law to vary across the nation when different U.S. Courts of Appeals deliver

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Figure 10.1

con icting rulings on a law. These contradictions can only be ironed out by the U.S. Supreme Court, if it chooses to do so. Only about 15% of decisions by U.S. Courts of Appeal are appealed to the Supreme Court.

.S. Supreme Court Congress determines the number of justices on the Supreme Court.

Historically, the size of the Court has ranged from 6 to 10 members. The current size of nine justices was set in 1869, although President Franklin Roosevelt (FDR) in the 1930s famously threatened to increase the membership by packing’’ the Court with a majority who would support his programs. FDR became frustrated when his New Deal legislation kept being declared unconstitutional by a 5-4 vote. Congress, however, was reluctant to support a proposal that would enable judicial decisions to be manipulated for political purposes, and it dropped the court-packing plan when one justice suddenly stopped opposing New Deal laws in a move sometimes called a switch in time that saved nine.’’

One member of the Supreme Court is nominated by the president to serve as Chief Justice of the United States (not Chief Justice of the Supreme Court). The other eight members are known as associate justices. The chief justice has only a few formal powers not possessed by the other justices. In particular, the chief justice votes rst on cases, assigns the author of the court’s opinion if voting with the majority (if the chief justice is in the minority, the writing assignment is doled out by the associate justice in the majority with the most seniority), and heads the Judicial Conference of the United States that administers all federal courts.

At least six justices are needed to decide a case. If a tie vote occurs (3-3 or 4-4), the ruling of the last court to decide the case—usually a U.S. Court of Appeals or a state’s highest court—is allowed to stand. It does not mean, however, that the Supreme Court is agreeing with the ruling of the lower court. It merely means that the Supreme Court itself was unable to reach a decision.

While the U.S. Supreme Court is commonly considered to take cases solely on appeal, the U.S. Constitution (Article III, section 2) assigns a limited original jurisdiction. In these instances, a case goes directly to the Supreme Court, and the justices serve as the trial court. The decision by the justices is nal on these cases and no further appeal is possible. Four types of cases constitute the Supreme Court’s original jurisdiction:

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Cases between two or more states. Cases between a state and the United States. Cases involving ambassadors and foreign counsels. Cases in which a state is suing a citizen of another state or a foreign nation.

Since the Supreme Court has little time to devote to an actual trial, Congress (28 U.S.C. section 1251) awarded U.S. District Courts con current jurisdiction over the last three types of cases. Concurrent jurisdiction denotes that a particular type of case can be heard by more than one court. In practical terms, most of the Supreme Court’s original jurisdiction is shared with U.S. District Courts to the point where it is a waste of time to request the justices to consider a case that falls in these categories (with an appeal through U.S. Courts of Appeal to the U.S. Supreme Court still feasible). Moreover, the last category of original jurisdiction was restricted by the Eleventh Amendment (1795) to prevent a state from being sued by a citizen of another state or a foreign country under the doctrine of sovereign immunit (i.e., the concept that a government cannot be sued without its consent).

Only cases between two or more states remain within the Supreme Court’s exclusive original jurisdiction. These cases most often involve disputes over borders or water rights, such as a dispute between New York and New Jersey over ownership rights to Ellis Island (New Jersey v. New York, 1998). Even here, the tradition is for the Supreme Court to appoint a master (usually a retired federal judge) to examine the evidence and recommend an outcome to the justices. It is seldom that more than one or two cases annually will be heard under original jurisdiction.

By far, the caseload of the Supreme Court comes from its appellate jurisdiction—over 5,000 appeals annually. Remember that, under the Constitution (Article III, Section 2, Clause 2), federal appellate jurisdiction is assigned with such exceptions and under such regulations, as the Congress shall make.’’ Currently, appellate cases are taken from the 13 U.S. courts of appeals, from the U.S. Court of Appeals for the Armed Forces, from U.S. district courts (in exceptional circumstances), and from the highest state courts when a federal question exists. There are three avenues of appeal to the U.S. Supreme Court: (1) writ of appeal (when federal law gives the automatic right to have a certain type of case reviewed by the Supreme Court), (2) writ of certi cation (when a lower

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federal court requests instructions on a point of law never before decided), and (3) writ of certiorari (when a writ of appeal is not available). The rst two avenues generate few cases, especially since Congress severely cut back on the availability of the writ of appeal in 1988.

Today, the writ of certiorari (or more commonly, writ of cert) is the primary means of appealing to the Supreme Court. According to the Supreme Court’s Rule 10(9), Review on writ of certiorari is not a matter of right, but a judicial discretion. A petition for writ of certiorari will be granted only for compelling reasons.’’ The Supreme Court uses the rule of four to determine which appeals are granted; that is, the Court considers an appeal if four justices vote to accept (only three votes are necessary if six or seven justices are present). Only about 100 cases are heard annually. Denial of a writ does not mean the justices agree with the previous ruling, only that not enough justices believe a substantial question was raised that is worthy of review. The justices simply do not have time to correct every error that occurred in lower courts. Moreover, the granting of the writ provides no indication of how the Supreme Court will ultimately rule on the case. The losing party in the lower court may still lose.

The Supreme Court begins its regular session on the rst Monday in October and continues until late June or early July. When petitions are received, the chief justice creates the Supreme Court’s agenda and places each either on the discuss list’’ or dead list.’’ Petitions assigned to the dead list will routinely be denied unless any justice requests a particular petition to be shifted to the discuss list. The justices meet together in conference on Wednesdays and Fridays and, by tradition, begin with a handshake. Since 1910, only justices are allowed in the room. The associate justice with the least seniority must respond to knocks at the door and leave to collect books or papers for the other members. The chief justice is allowed to speak rst on whether to accept or deny petitions on the discuss list and is followed by the associate justices in order of seniority, with voting taking place in the reverse sequence. Again, four votes are required to schedule a hearing on a case.

Oral arguments are conducted Mondays through Wednesdays beginning in early October and running through late spring. Two-week breaks are periodically arranged to enable the justices an opportunity to research and write. During oral arguments, each side is typically allocated a half- hour and justices can interrupt at any time—cutting into a lawyer’s time.

235Chapter Ten: The Federal Judiciary

The Solicitor eneral, nominated by the president and con rmed by the Senate, argues cases in which the federal government is a party. Public access is permitted on a limited basis.

During conference, the justices discuss and vote on the cases heard at oral argument. A majority vote determines winning and losing parties. The chief justice assigns the opinion writer only if a member of the majority side (which happens over 80% of the time). When the chief justice is on the losing side, the associate justice in the majority with the most seniority has the duty of determining the author of the court’s decision. Justices circulate drafts of their opinions and must take great care to ensure that their wording does not alienate members of the majority. It has happened that an opinion begins as the majority decision but, due to the way in which the decision is written, may end up the losing side. Justices are allowed to alter their votes on a case up to the moment a decision is announced to the public.

Justices on the losing side have the option of writing a dissenting opinion. Since a dissenting member is speaking for no one else (although other justices can support the dissent), these opinions tend to be more candid and sometimes insulting. Even justices in the majority can write separate concurring opinions and these must be read carefully to determine the extent to which the Court’s opinion is supported. In a concurring opinion, a justice may merely want to elaborate on the reasons for agreeing with the majority, but a justice may also express concerns about aspects of the decision. A common situation is when a justice agrees as to the winning party but does not support the rationale behind the Court’s opinion. For example, ve justices could rule that a conviction should be overturned, with four believing evidence was improperly admitted while the fth believes a juror was biased. Where concurring opinions have been written, it sometimes becomes complicated in understanding what the Supreme Court actually decided.

If a majority ( ve justices) does not endorse both the outcome and the rationale for a decision, the Supreme Court issues what is called a judgment (Cross, 2009, 323). Such opinions only identify the winning and losing parties and do not establish precedent that is binding on lower courts. A precedent requires judges to follow the ruling of a higher court in their jurisdiction when dealing with a case that presents similar facts. This doctrine (known as stare decisis) was created to ensure that people are treated the same in applying legal standards. An appellate court binds

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only the courts within its jurisdiction with its precedents. Thus, the U.S. Supreme Court binds all courts, state and federal, when it decides a federal question, while a U.S. Court of Appeals binds only the U.S. District Courts in its circuit.

Precedent is established only when a majority agrees on the outcome as well as the rationale behind a decision. Here, the Supreme Court issues an opinion that is binding on all federal courts. The relationship with state courts is more complex. State judges, of course, must obey the precedents of the U.S. Supreme Court on federal questions. When a case originating in state court is decided, the Supreme Court typically remands, or sends the case back, to the highest court in the state to enforce its ruling. At this point, state courts will sometimes evade obeying the U.S. Supreme Court in a completely legal way because the U.S. Constitution is not the only source of rights possessed by citizens. A state can always impose higher standards … than required by the Federal Constitution’’ so long as they are not interfering with a federal interest (Cooper v. California, 1967). One study found that 12% of the cases remanded to state courts by the U.S. Supreme Court reversed winning and losing parties (Note, 1954).

Consider an example. In 1976, the U.S. Supreme Court held the search of an impounded car by the police was permissible under the Fourth Amendment even though no probable cause existed that contraband was located inside the vehicle (South Dakota v. Opperman, 1976). On remand, the state’s supreme court ruled the search unconstitutional under the state’s constitution (State v. Opperman, 1976). In other words, the state court was able to sidestep a direct ruling by the U.S. Supreme Court by giving the citizens of South Dakota more protection than allowed under the U.S. Constitution. Police need a warrant to search an impounded car in South Dakota—but nowhere else in the country—in the absence of probable cause. The Supreme Court of the United States may not be the last word after all!

owers of the Federal udiciar Aside from deciding cases and controversies, the Constitution is silent

on the powers to be exercised by federal courts. This lack of clarity differs from the careful attention devoted to the enumeration of powers belonging to Congress and the president. Thus the exact authority of federal courts had to develop over time in response to issues as they arose. It is not surprising

237Chapter Ten: The Federal Judiciary

that service on the Supreme Court was not viewed initially as too signi cant a position. John Jay, the rst chief justice, stepped down to become governor of New York, something that surely would not happen today.

The landscape began to change when John Marshall became chief justice in 1801, and he continued serving until 1835. His in uence vastly expanded the power of all federal courts. The key decision was issued in Marbury v. Madison, 5 U.S. 137 (1803). The case would make a good soap opera. In the 1800 election, the Federalists lost control of the presidency and both houses of Congress. Before the new administration took of ce under Thomas Jefferson, the Federalists moved quickly to create a host of new judicial posts to which members of the party would be appointed. The goal was to pack federal courts with Federalists who would frustrate Jefferson in any way possible. As luck would have it for the Federalists, the Chief Justice of the Supreme Court resigned, and President John Adams immediately nominated John Marshall, his Secretary of State, to the position, and the Senate con rmed. Adams requested Marshall to continue as Secretary of State for the little time remaining in his term.

In its last days, the Federalist Congress enacted several laws signed by Adams; one of the laws established 42 new positions of Justice of the Peace for the District of Columbia. Adams nominated and the Senate con rmed all 42 appointments the day before Jefferson was to assume of ce. Adams signed the commissions, and it fell upon the Secretary of State to deliver them. Marshall worked throughout the night and managed to give out all but four of the commissions before midnight. The new Secretary of State, James Madison, walked into his of ce to discover the undelivered commissions. Since the papers had been signed and sealed, Marshall assumed Madison would complete the project. Jefferson, however, instructed Madison to ignore the commissions.

William Marbury, and the other three promised recipients of a judgeship, led suit directly before the U.S. Supreme Court under its original jurisdiction. This could be done because a federal law enacted in 1789 had expanded the Supreme Court’s original jurisdiction to allow suits against federal of cials to perform their legal duties. Marshall, who was responsible for the mess, was now in position to decide the dispute as Chief Justice. The situation suddenly became even more complicated. Jefferson asserted that he would not provide Marbury his commission no matter what the Supreme Court ruled. Several members of Congress

238 The Basics of American Government

additionally threatened Marshall with impeachment if Marbury won. As a result, it seemed Marshall was in a in box with no way out. If he decided in favor of Marbury, Marshall would be de ed by Jefferson and could even be impeached. On the other hand, if he decided against Marbury (who probably deserved to win), Marshall would be publicly humiliated for having no backbone and would also lower the prestige of the court system. The drama was more compelling because Jefferson and Marshall were second cousins and were splitting apart the family by the controversy. In a brilliant maneuver, Marshall managed not only to escape the dilemma but to enhance the power of the federal judiciary at the same time!

Marshall wrote the opinion in Marbury v. Madison for a unanimous Supreme Court. While acknowledging that Marbury deserved the commission and admonishing Madison for not performing his duty, Marshall nonetheless lamented that the Supreme Court lacked authority to order Madison to comply. The reason is that the 1789 federal law that enabled Marbury to le suit directly before the Supreme Court was not one of the four types of cases listed in Article III as part of its original jurisdiction. In other words, Congress added a fth type of case to the Supreme Court’s original jurisdiction. Could a law of Congress override the Constitution? Marshall answered in the negative because all those who have framed written constitutions contemplate them as the fundamental and paramount law of the nation.’’ In simple terms, the Constitution is superior to congressional statutes.

Only one important question remained: are courts required to follow a federal law that is inconsistent with the Constitution? In a famous sentence, Marshall concluded: It is emphatically the province of the judicial department to say what the law is.’’ If a federal law violates the Constitution, federal courts are empowered to strike down the law. Separation of powers entrusts courts with the authority to interpret laws, and the Constitution must be interpreted like any law. Consequently, Marbury was in the wrong court and would have to le suit elsewhere, an option that would not be worth his time since his term as Justice of the Peace was soon to expire. Thus Marshall succeeded in publicly rebuking Jefferson and in making the Supreme Court a feared institution that could nullify acts of Congress. As might be expected, the decision stirred a storm of controversy, and the Supreme Court waited 54 years before daring to strike down another congressional statute.

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Marshall, without using the term, claimed the power of judicial review for the court system. As it has evolved, the concept of judicial review has come to include the following elements:

It is a power possessed by all courts, state and federal. It enables acts of Congress or of any public authority to be challenged. If found to be in violation of the federal Constitution, the law or action is voided and can be ignored.

Keep in mind that only the U.S. Supreme Court has national jurisdiction so that it alone can exercise judicial review that applies across the country. The use of judicial review by other courts is limited to the geographic area within its jurisdiction: a U.S. Court of Appeals controls the courts in its circuit; a state’s highest court controls courts in the state, etc. Moreover, it is not only legislative bodies that can be challenged but executive of cials as well. It was the U.S. Supreme Court, for example, that forced President Richard Nixon to turn over the recordings made in the Oval Of ce. The Court rejected Nixon’s argument that a president—unlike other citizens— could withhold information demanded by a court (United States v. Nixon, 1974). Thus Nixon’s claim of presidential power was in violation of the Constitution and he resigned 15 days after the Court’s decision.

Judicial review is a hotly debated topic for several reasons. First, the power is not mentioned in the Constitution itself. Marshall found the power a logical extension of the judiciary’s authority to interpret laws, but the Constitution’s failure explicitly to collaborate renders the rationale open to questioning. If the framers wanted the courts to utilize judicial review, critics contend the power would have been written into the Constitution since the issue was discussed at the Constitutional Convention. Second, opponents warn that the power is subject to abuse with little oversight. Woodrow Wilson once described the Supreme Court as a constitutional convention in continuous session. A majority on the Supreme Court can interpret the Constitution to say almost anything, and the only way to reverse is by the grueling process of amending the Constitution. A number of amendments (Eleventh, Fourteenth, Sixteenth, Nineteenth, and Twenty- Sixth) have been adopted speci cally to override decisions of the Supreme Court, although hundreds of proposals to do so have been introduced into Congress over the years. Finally, judicial review has been blamed

240 The Basics of American Government

for undermining the doctrine of separation of powers by enabling courts to write what amounts to legislation. Did the Supreme Court legislate’’ when it required police to inform detained individuals of their rights before questioning them? The Fifth Amendment only declares that no person shall be compelled in any criminal case to be a witness against himself,’’ and the Supreme Court added the words about issuing warnings to detained individuals.

Judicial review is surely a potent weapon that will survive if for no other reason than its use is inevitable. The judiciary must have some way under checks and balances to protect its authority. The real debate should focus on when the exercise of judicial review is appropriate. udicial activists consider the proper role of courts to include lling in the holes’’ left by the Constitution’s vague language. They believe it is the duty of judges to minimize potential social disruption caused by the lack of clear policy guidelines, such as when public schools were integrated. The Constitution should be considered a living document that changes with society. Judicial activists, however, have been accused of promoting ideological agendas. Controversial decisions on abortion (Roe v. Wade, 1973), contraception (Griswold v. Connecticut, 1965), and contracts (Lochner v. New York, 1925) have been faulted for imposing the personal values of judges on society without any direct support in the language of the Constitution.

Advocates of judicial restraint contend that judges should decide cases on the basis of precedent and overturn laws only when a con ict with the Constitution is unmistakable. This approach is best accomplished when judges try to remain within the original intent or meaning of the framers and avoid making up policy. While logical in theory, judicial restraint is almost impossible to practice consistently. Justice John Paul Stevens, for example, could not resist chiding Justice Antonin Scalia, the Supreme Court’s most vocal champion of judicial restraint, for overturning long- standing precedent to achieve what many considered an ideological result on the Second Amendment: It is, however, clear to me that adherence to a policy of judicial restraint would be far wiser than the bold decision announced today’’ (District of Columbia v. Heller, 2008). It would seem that the proper role of judicial review lies somewhere between the extremes of judicial activism and judicial restraint.

Aside from judicial review, federal courts are frequently called upon to engage in statutor interpretation where they attempt to understand the

241Chapter Ten: The Federal Judiciary

242 The Basics of American Government

meaning of a law. Here, judges are not examining a law for its conformity with the Constitution but are merely trying to make sense of it (Cross, 2009). If Congress enacts a law requiring all able bodied’’ males aged 18 to be subject to the military draft, for example, it is unclear whether a male is able bodied’’ if having at feet. Typically, courts decide such cases by seeking to identify the legislature’s intent when the law was enacted and applying this intent to the circumstances presented by the situation. Laws are hardly written with a great deal of precision, and the opportunity for courts to interpret statutes is quite frequent. Unlike judicial review, however, Congress is able to alter court interpretations of statutes more easily. Since the courts are not interpreting the Constitution, Congress can reverse the judicial interpretation of a statute simply by re-writing the law. One study found that Congress overturned 124 Supreme Court decisions based on interpretations of federal law in a 23-year period (Eskridge, 1991, 335-341). The doctrine of checks and balances is alive and well!

Discussion Questions 1. Is the Supreme Court the least dangerous branch,’’ as once

described by Alexander Hamilton? Justify your answer on the basis of the material in the chapter.

2. From the reading, what are the checks on the powers of the judiciary? Are the checks adequate to prevent the abuse of judicial power? Explain.

3. Which position makes the most sense to you, judicial activism or judicial restraint? Justify your position. Is a Republic or Democratic judge more likely to favor judicial restraint? Explain your answer.

4. The chapter makes a case that federalism is alive and well’’ in the relationship between state and federal courts. What evidence is available to support this position?

Civic Exercise Interview a lawyer who has argued cases before both state and federal

courts and ask the following questions: 1. Do you prefer taking a case to state or federal court? Explain why. 2. Did any of your state cases involve federal questions? If so, to

what extent was the state judge knowledgeable about federal law?

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3. Do you prefer arguing cases before juries or judges alone? Explain why.

4. Discuss whether civil cases or criminal cases are more dif cult to litigate.

5. Have you ever argued an appellate case? If so, how does the experience differ from a trial court? Explain the concept of

perfecting the record.’’ 6. In your opinion, do federal courts have too much power? Cite

examples. 7. Federal judges, for the most part, are appointed while state

judges are elected. Is there a difference in the quality of judges in comparing the two selection methods?

8. In your experience, did a federal judge use the doctrine of justiciability’’ to avoid hearing a case that should have

legitimately been taken? Discuss the incident(s). 9. Does the option of taking a diversity case to a federal court still

make sense since the original justi cation was the fear of not being able to nd a fair forum in state court?

10. Do the decisions of the U.S. Supreme Court regularly impact your daily practice of law? Justify your response.

References Berger, R. (1997). Government by udiciary: The transformation of the

Fourteenth Amendment. (2nd ed.), Indianapolis, IN: Liberty Fund.

Cross, F. B. (2009). The theory and practice of statutory interpretation. Palo Alto, CA: Stanford University Press.

Eskridge, W. (1991). Overriding supreme court statutory interpretation decisions. The Yale Law Journal, 101(2), p 331-341.

Evasion of Supreme Court mandates in cases remanded to state courts since 1941. (1954, May 8). Harvard Law Review, p. 1251-1253.

George, J. J. (2006). Judicial opinion writing handbook. (5th ed.), Buffalo, NY: William S. Hein & Co., Inc.

Chapter Ten: The Federal Judiciary

Hamilton, A. (1788/1961). Federalist Paper 78. In Clinton Rossiter (Ed.), The Federalist Papers (352-357). New York, NY: The New American Library.

Hughes, C. E. (1916). Addresses. (2nd ed.), New York, NY: Putnam.

Jamieson, K. H. (2007). Public understanding of and support for the courts: 2007 Annenberg Public Policy Center judicial survey results. Retrieved from http://www.annenbergpublicpolicycenter. o r g / D o w n l o a d s / 2 0 0 7 1 0 1 7 _ J u d i c i a l S u r v e y / J u d i c i a l _ Findings_10-17-2007.pdf.

Schwartz, B. (1993). A history of the Supreme Court. New York, NY: Oxford University Press.

Supreme Court of the United States. (2010). Rules of the Supreme Court of the United States. Retrieved from .http://www.supremecourt.gov/ ctrules/2010RulesoftheCourt.pdf.

Court Cases American Postal Workers Union v. Frank, 968 P.2d 1373 (1992)

Cooper v. California, 386 U.S. 58, 62 (1967)

DeFunis v. Odegaard, 416 U.S. 312 (1974)

District of Columbia v. Heller, 554 U.S. 570 (2008)

Duncan v. Louisiana, 391 U.S. 145 (1968)

Ex Parte McCardle, 74 U.S. 506 (1869)

Griswold v. Connecticut, 381 U.S. 479 (1965)

Harris v. Nelson, 394 U.S. 286, 290-91 (1969)

Hayburn’s Case, 2 U.S. 409 (1792)

The Basics of American Government244

Lochner v. New York, 198 U.S. 45 (1925)

Marbury v. Madison, 5 U.S. 137 (1803)

Martin v. Hunter’s Lessee, 14 U.S. 304 (1816)

Massachusetts v. Laird, 400 U.S. 886 (1970)

Mills v. Duryee, 11 U.S. 7 (1813)

Minneapolis & St. Louis R.R. v. Bombolis, 241 U.S. 211 (1916)

New Jersey v. New York, 523 U.S. 767 (1998)

Roe v. Wade, 410 U.S. 113 (1973)

South Dakota v. Opperman, 428 U.S. 364 (1976)

State v. Opperman, 247 N.W.2d 673 (1976)

United Public Workers v. Mitchell, 330 U.S. 75(1947)

United States v. Nixon, 418 U.S. 683 (1974)

245Chapter Ten: The Federal Judiciary