Module 4
The Judiciary
A. Judicial Review
When the states were debating the ratification of the Constitution, Alexander
Hamilton wrote in Federalist No. 78 that the new system of federal courts would be “the
least dangerous” branch of government because, unlike the president, it would not
command the sword and, unlike Congress, it would not control the purse strings. The
courts, he argued, could take “no active resolution whatever.” Nowhere in the
Constitution was the Supreme Court given the right to declare laws of Congress or
decisions of the president to be unconstitutional, though Hamilton argued that such a
power was necessary. That document was our fundamental law and expressed the will of
the people, and so it ought to be preferred to a law passed by Congress if there were an
“irreconcilable variance between the two.”
As a result of its newfound powers, justices began serving on the Supreme Court
for much longer periods. The 11 justices nominated by President George Washington
served, on average, 7 years, while the 5 nominated 40.years later by President Andrew
Jackson served on average 20 years. The Court had become not the least dangerous
branch, but a powerful one. In time, the identity of the justices became an important
political issue. Until recently, most justices were confirmed by the Senate, and from 1947
to 1985, almost all persons nominated to be a federal appeals court judge were approved.
But of late, these nominations have had a less certain reception in the Senate. When
President Ronald Reagan nominated Antonin Scalia for the Supreme Court, he was
confirmed by the Senate in 1986 by a vote of 98 to 0. But one year later, when President
Reagan nominated Robert Bork, he was rejected by the Senate. Four years after that,
Clarence Thomas barely survived a confirmation vote (52 to 48). In 2006, President
George W..Bush’s nominee Samuel Alito won confirmation by a vote of 58.to 42 after
Senate Democrats tried to block the vote by means of a filibuster.
Both of President Barack Obama’s nominees were confirmed—Sonia
Sotomayor’s nomination was approved in 2009 by a vote of 68 to 31, and Elena Kagan’s
nomination was approved in 2010 by a vote of 63 to 37—but in each case, many
Republicans voted against the nominee. And after Justice Scalia’s death in early 2016,
Republican Majority Leader Mitch McConnell declared that the Senate would not hold
hearings for the Obama administration’s nominee, U.S. Appeals Court Judge Merrick
Garland, but instead would wait for the next president to make a nomination. After taking
office, President Donald Trump nominated U.S. Appeals Court Judge Neil Gorsuch for
the Supreme Court, and the Senate confirmed Gorsuch by a 54-45 vote in April 2017.
Nominees to the federal district court typically are much less controversial than
nominees to the federal appeals courts because the president rarely nominates for a
federal district court someone who is not known to and supported by the nominee’s two
home state senators. Still, in his last two years in office, President Obama had a
confirmation rate of 27 percent for federal district court nominees, which was well below
the confirmation rate of 63 percent for his predecessor in the same time period.1 Also, as
Figure.16.2 shows, over the past three presidencies, the average number of days between
a nominee’s Senate hearings and his or her confirmation has increased steeply for both
federal appeals court nominees and for federal district court nominees.
As federal judges make more policy decisions, and as partisan rancor over those
decisions rises, the process by which the Senate considers nominees for the federal bench
has become longer, more ideologically charged, and less certain to result in
confirmations. By long-standing tradition, senators from the home state of an appeals
court nominee are allowed to file a private objection—what is called registering a
negative “blue slip” complaint. If filed by a Judiciary Committee member, this will
prevent a hearing on the nominee from being held. Sometimes these blue slips indicate
that a senator doesn’t like the nominee’s political views, but other times it can mean that
the senator is blocking a judicial appointment as a way of inducing the president to do
something he or she wants on a totally unrelated matter. But, over the past three
presidencies, that tradition has been used ever more as just another tool of partisan
politics.
One aspect of the power of the federal courts is judicial review—the right of the
federal courts to declare laws of Congress and acts of the executive branch void and
unenforceable if they are judged to be in conflict with the Constitution. Since 1789, the
Supreme Court has declared more than 160 federal laws to be unconstitutional. In Britain,
by contrast, Parliament is supreme. The UK Supreme Court, established quite recently by
the Constitutional Reform Act of 2005, started work in 2009 and is much more limited in
its powers of judicial review. It cannot overturn primary legislation made by Parliament.
As the second earl of Pembroke supposedly said, “A parliament can do anything but
make a man a woman and a woman a man.” All that prevents Parliament from acting
contrary to the (unwritten) constitution of Britain are the consciences of its members and
the opinions of the citizens.
About 60 nations do have something resembling judicial review, but in only a few
cases does this power mean much in practice. Where it means something—in Australia,
Canada, Germany, India, and some other nations— one finds a stable, federal system of
government with a strong tradition of an independent judiciary.3 Some other nations—
France, for example—have special councils, rather than courts, that can under certain
circumstances decide that a law is not authorized by the constitution. Judicial review is
the federal courts’ chief weapon in the system of checks and balances on which the
American government is based. Today, few people would deny to the courts the right to
decide that a legislative or executive act is unconstitutional, though once that right was
controversial.
What remains controversial is the method by which such review is conducted.
Two competing views exist, each ardently pressed during the fight to confirm Clarence
Thomas. The first holds that judges should only judge—that is, they should confine
themselves to applying those rules stated in or clearly implied by the language of the
Constitution. This often is called the judicial restraint approach. The other argues that
judges should discover the general principles underlying the Constitution and its often
vague language, amplify those principles on the basis of some moral or economic
philosophy, and apply them to cases. This is sometimes called the activist approach.
B. Development of the Federal Courts
Most of the Founders probably expected the Supreme Court to have the power of
judicial review (though they did not say that in so many words in the Constitution), but
they did not expect federal courts to play so large a role in making public policy. The
traditional view of civil courts was that they judged disputes between people who had
direct dealings with each other—they had entered into a contract, for example, or one had
dropped a load of bricks on the other’s toe—and decided which of the two parties was
right. The court then supplied relief to the wronged party, usually by requiring the other
person to pay him or her money (“damages”).
This traditional understanding was based on the belief that judges would find and
apply existing law. The purpose of a court case was not to learn what the judge believes
but what the law requires. The later rise of judicial activism occurred when judges
questioned this traditional view and argued instead that judges do not merely find the
law, they make the law. The view that judges interpret the law, not make policy, made it
easy for the Founders to justify the power of judicial review. It also led them to predict
that the courts would play a relatively neutral, even passive, role in public affairs.
Alexander Hamilton, writing in Federalist No. 78, described the judiciary as the branch
“least dangerous” to political rights. The president is commander-in-chief and thus holds
the “sword of the community”; Congress appropriates money and thus “commands the
purse” as well as decides what laws shall govern. But the judiciary “has no influence over
either the sword or the purse” and “can take no active resolution whatever.” It has
“neither force nor will but merely judgment,” and thus is “beyond comparison the
weakest of the three departments of power.” As a result, “liberty can have nothing to fear
from the judiciary alone.” Hamilton went on to state clearly that the Constitution intended
to give to the courts the right to decide whether a law is contrary to the Constitution. But
this authority, he explained, was designed not to enlarge the power of the courts but to
confine that of the legislature.
“From 1789 until the Civil War, the dominant interest of the Supreme Court was
in that greatest of all the questions left unresolved by the Founders—the nation– state
relationship.”4 The answer the Court gave, under the leadership of Chief Justice John
Marshall, was that national law was in all instances the dominant law, with state law
having to give way, and that the Supreme Court had the power to decide what the
Constitution meant. In two cases of enormous importance—Marbury v. Madison in 1803
and McCulloch v. Maryland in 1819—the Court, in decisions written by Marshall, held
that the Supreme Court could declare an act of Congress unconstitutional; that the power
granted by the Constitution to the federal government flows from the people and thus
should be generously construed (and thus any federal laws that are “necessary and
proper” to the attainment of constitutional ends are permissible); and that federal law is
supreme over state law, even to the point that a state may not tax an enterprise (such as a
bank) created by the federal government.
The power of the federal government to regulate commerce among the states was
also established. When New York gave to Robert Fulton, the inventor of the steamboat,
the monopoly right to operate his steamboats on the rivers of that state, the Marshall
Court overturned the license because the rivers connected New York and New Jersey and
thus trade on those rivers would involve interstate commerce, and federal law in that area
was supreme. Because there was a conflicting federal law on the books, the state law was
void.
Though Marshall seemed to have secured the supremacy of the federal
government over the state governments, another even more divisive issue had arisen; that,
of course, was slavery. Roger B. Taney succeeded Marshall as chief justice in 1836. He
was deliberately chosen by President Jackson because he was an advocate of states’
rights, and he began to chip away at federal supremacy, upholding state claims that
Marshall would have set aside. But the decision for which he is famous—or infamous—
came in 1857 when, in the Dred Scott case, he wrote perhaps the most disastrous judicial
opinion ever issued. A slave, Dred Scott, had been taken by his owner to a territory (near
what is now St. Paul, Minnesota) where slavery was illegal under federal law. Scott
claimed that since he had resided in a free territory, he was now a free man. Taney held
that Negroes were not citizens of the United States and could not become so, and that the
federal law—the Missouri Compromise—prohibiting slavery in Northern territories was
unconstitutional.9 The public outcry against this view was enormous, and the Court and
Taney were discredited, at least in the North. The Civil War was ultimately fought over
what the Court mistakenly had assumed was a purely legal question.
The supremacy of the federal government may have been established by John
Marshall and the Civil War, but the scope of the powers of that government or even of
the state governments was still to be defined. During the.period from the end of the Civil
War to the early years of the New Deal, the dominant issue the Supreme Court faced was
deciding when the economy would be regulated by the states and when by the nation. The
Court revealed a strong though not inflexible attachment to private property. In fact, that
attachment had always been there: the Founders thought political and property rights
were inextricably linked, and Marshall certainly supported the sanctity of contracts. But
now, with the muting of the federal supremacy issue and the rise of a national economy
with important unanticipated effects, the property question became the dominant one. In
general, the Court developed the view that the Fourteenth Amendment, adopted in 1868
primarily to protect African American claims to citizenship from hostile state action, also
protected private property and corporations from unreasonable state action. The crucial
phrase was this: no state shall “deprive any person of life, liberty, or property, without
due process of law.” Once it became clear that a “person” could be a firm or a
corporation as well as an individual, business and industry began to flood the courts with
cases challenging various government regulations.
But the Court also rendered decisions that authorized various kinds of regulation.
It allowed states to regulate businesses “affected with a public interest,”18 changed its
mind about the Interstate Commerce Commission and allowed it to regulate railroad
rates,19 upheld rules requiring railroads to improve their safety,20 approved state
antiliquor laws,21 approved state mine safety laws,22 supported state workers’
compensation laws,23 allowed states to regulate fire-insurance rates,24 and in time
upheld a number of state laws regulating wages and hours. Indeed, between 1887 and
1910, in 558 cases involving the Fourteenth Amendment, the Supreme Court upheld state
regulations over 80 percent of the time.
To characterize the Court as pro-business or antiregulation is both simplistic and
inexact. More accurate, perhaps, is to characterize it as supportive of the rights of private
property but unsure how to draw the lines that distinguish “reasonable” from
“unreasonable” regulation. Nothing in the Constitution clearly differentiates reasonable
from unreasonable regulation, and the Court has been able to invent no consistent
principle of its own to make this determination. For example, what kinds of businesses
are “affected with a public interest”? Grain elevators and railroads are, but are bakeries?
Sugar refineries? Saloons? And how much of commerce is “interstate”—anything that
moves? Or only something that actually crosses a state line (recall our discussion of this
point in Chapter 3)? The Court found itself trying to make detailed judgments that it was
not always competent to make and to invent legal rules where no clear legal rules were
possible. In one area, however, the Supreme Court’s judgments were clear: the
Fourteenth and Fifteenth Amendments were construed so narrowly as to give African
Americans only the most limited benefits of their provisions. In a long series of decisions,
the Court upheld segregation in schools and on railroad cars and permitted black people
to be excluded from voting in many states.
After 1936, the Supreme Court stopped imposing any serious restrictions on state
or federal power to regulate the economy, leaving such matters in the hands of the
legislatures. From 1937 to 1974, the Supreme Court did not overturn a single federal law
designed to regulate business but did overturn 36 congressional enactments that violated
personal political liberties. It voided as unconstitutional laws that restricted freedom of
speech,26 denied passports to communists,27 permitted the government to revoke a
person’s citizenship,28 withheld a person’s mail,29 or restricted the availability of
government benefits.30 This new direction began when one justice changed his mind,
and it continued as the composition of the Court changed. At the outset of the New Deal,
the Court was by a narrow margin dominated by justices who opposed the welfare state
and federal regulation based on broad grants of discretionary authority to administrative
agencies. President Franklin Roosevelt, who was determined to get just such legislation
implemented, found himself powerless to alter the composition of the Court during his
first term (1933–1937); because no justice died or retired, he had no vacancies to fill.
After his overwhelming reelection in 1936, he moved to remedy this problem by
“packing” the Court.
For many decades, the Supreme Court allowed Congress to pass almost any law
authorized by the Constitution, no matter how it affected the states. As we saw in Chapter
3, the Court had long held that Congress could regulate almost any activity if it affected
interstate commerce, and in the Court’s opinion virtually every activity did affect it. The
states were left with few rights to challenge federal power. But since around 1992, the
Court has backed away from this view. By narrow majorities, it has begun to restore the
view that states have the right to resist some forms of federal action.
When Congress passed a bill that forbade anyone from carrying a gun near a
school, the Court held that carrying guns did not affect interstate commerce, and so the
law was invalid.31 One year later, it struck down a law that allowed Indian tribes to sue
the states in federal courts, arguing that Congress lacks the power to ignore the
“sovereign immunity” of states—that is, the right, protected by the Eleventh Amendment,
not to be sued in federal court. (It has since upheld that view in two more cases.) And the
next year, it held that the Brady gun control law could not be used to require local law
enforcement officers to do background checks on people trying to buy weapons.32 These
cases are all hints that the supremacy of the federal government has some real limits
created by the existence and powers of the several states.
Debate over the federal government’s appropriate role in health care continues. In
2015, the Supreme Court ruled six to three in King v. Burwell that the Affordable Care
Act permits the federal government to provide subsidies for people to buy health
insurance through the federal exchange if their state does not have its own exchange for
comparing and purchasing health-care plans. Opponents had insisted the law allowed
subsidies only for plans purchased through state exchanges; if that view had prevailed,
then more than 6 million Americans in 34 states likely would no longer be able to afford
health insurance. By upholding subsidies for the federal exchange, the Court ensured the
viability of the health-care law for the foreseeable future, barring legislative or executive
action to modify it.
C. The Structure, Jurisdiction, and Operation of the Federal Courts
The only federal court the Constitution requires is the Supreme Court, as specified
in Article III. All other federal courts and their jurisdictions are creations of Congress.
Nor does the Constitution indicate how many justices shall be on the Supreme Court
(there were originally six, now there are nine) or what its appellate jurisdiction shall be.
Congress has created two kinds of lower federal courts to handle cases that need not be
decided by the Supreme Court: constitutional and legislative courts. A constitutional
court is one exercising the judicial powers found in Article III of the Constitution, and
therefore its judges are given constitutional protection: They may not be fired (they serve
during “good behavior”), nor may their salaries be reduced while they are in office.
The most important of the constitutional courts are the district courts (a.total of
94, with at least one in each state, the District of Columbia, and the commonwealth of
Puerto.Rico) and the courts of appeals (one in each of 11 regions, plus one in the District
of Columbia and one federal circuit). Various specialized constitutional courts also exist,
such as the Court of International Trade. Legislative courts are those set up by Congress
for some specialized purpose and staffed with people who have fixed terms of office and
can be removed or have their salaries reduced. Legislative courts include the Court of
Military Appeals and the territorial courts.
Party background makes a difference in how judges behave. Researchers have
analyzed more than 80 studies of the link between party and either liberalism or
conservatism among state and federal judges in cases involving civil liberties, criminal
justice, and economic regulation. It shows that judges who are Democrats are more likely
to make liberal decisions and Republican judges are more likely to make conservative
ones.* The party effect is *A “liberal” decision is one that favors a civil right, a criminal
defendant, or an economic regulation; a “conservative” one opposes the right or the
regulation, or supports the criminal prosecutor. not small.34 We should not be surprised
by this, since we have already seen that among political elites (and judges are certainly
elites), party identification influences personal ideology.
Federal judges tend to be white, male, and Protestant, and increasingly have been
judges on some other court. There has been a decline in the proportion of Supreme Court
justices who come directly from private law practice; almost all have been promoted
from a lower-ranking judgeship. For example, of the 9 justices chosen by President
Franklin D. Roosevelt, only 2 had been judges, whereas of the 12 nominated by
Presidents Ronald Reagan, George H. W. Bush, Bill Clinton, George W. Bush, and
Barack Obama, 10 had been judges. Sex, race, and ethnicity also have become important
factors in selecting judges. As is evident in Figure 16.4, Democratic presidents since
President Lyndon Johnson have appointed higher percentages of women, blacks, and
Hispanics than Republican presidents have, including a record-shattering fraction of
female appointees during the Obama presidency.
In theory, the president nominates a “qualified” person to be a judge, and the
Senate approves or rejects the nomination based on those “qualifications.” In fact, the
tradition of senatorial courtesy gives heavy weight to the preferences of the senators from
the state where a federal district judge is to serve. Ordinarily, the Senate will not confirm
a district court judge if the senior senator from the state where the district is located
objects (if he is of the president’s party). The senator can exercise this veto power by
means of the “blue slip”—a blue piece of paper on which the senator is asked to record
his or her views on the nominee. A negative opinion, or even failure to return the blue
slip, usually kills the nomination. This means that as a practical matter the president
nominates only persons recommended by that key senator. With respect to district judges,
the constitutional process appears to be reversed. To reflect reality, Article II, section 2,
might be more accurate if written as follows: “The senators shall nominate, and by and
with the consent of the President, shall appoint” federal judges.
Of late, presidents have tried to exercise more influence on the selection of federal
district and appellate court judges by getting the Justice Department to find candidates
who not only are supported by their party’s senators, but also reflect the political and
judicial philosophy of the president. Presidents Carter, Clinton, and Obama sought out
liberal, activist judges; Presidents Reagan, George H. W. Bush, and George W. Bush
sought out conservative, strict-constructionist ones. The party membership of federal
judges makes a difference in how they vote.35 Because different courts of appeals have
different combinations of judges, some will be more liberal than others. For example,
more liberal judges are in the court of appeals for the ninth circuit (which includes most
of the far western states) and more conservative ones are in the fifth circuit (Texas,
Louisiana, and Mississippi). The ninth circuit takes liberal positions, the fifth more
conservative ones. Because the Supreme Court does not have time to settle every
disagreement among appeals courts, different interpretations of the law may exist in
different circuits. In the fifth, for instance, it was for a while unconstitutional for state
universities to have affirmative action programs, but in the ninth circuit that was
permitted.
These differences make some people worry about the use of a political litmus test
—a test of ideological purity— in selecting judges. When conservatives are out of power,
they complain about how liberal presidents use such a test; when liberals are out of
power, they complain about how conservative presidents use it. Many people would like
to see judges picked on the basis of professional qualifications, without reference to
ideology, but the courts are now so deeply involved in political issues that it is hard to
imagine what an ideologically neutral set of professional qualifications might be.
A judicial nominee’s view on abortion is the chief motive for using the litmus
test. Because it is easy to mount a filibuster and it takes 60 votes to end one, the nominee
usually must be assured of 60 Senate votes to be confirmed. In theory, the Senate could
adopt a rule preventing filibusters of nominations, and it has recently moved in that
direction. In 2005, a group of 14 senators, half from each party, agreed they would vote
to block a filibuster on court nominees unless there were “extraordinary circumstances.”
This group—called the Gang of Fourteen—made it possible for several nominees
(including Samuel Alito) to be confirmed even though they had fewer than 60 votes (but
still, of course, more than 50). But this truce did not endure.
The litmus test issue is of greatest importance in selecting Supreme Court justices.
Here, no tradition of senatorial courtesy exists. The president takes a keen personal
interest in the choices and, of late, has sought to find nominees who share his philosophy.
In the Reagan administration, there were bruising fights in the Senate over the
nomination of William Rehnquist to be chief justice (he won) and Robert Bork to be an
associate justice (he lost), with liberals pitted against conservatives. When President
George H. W. Bush nominated David Souter, there were lengthy hearings as liberal
senators tried to pin down Souter’s views on issues such as abortion. Souter refused to
discuss matters on which he might later have to judge, however. Clarence Thomas,
another Bush nominee, also tried to avoid the litmus test by saying he had not formed an
opinion on prominent abortion cases. In his case, however, the litmus test issue was
overshadowed by sensational allegations from a former employee, Anita Hill, that
Thomas had sexually harassed her.
We have a dual court system—one state, one federal— and this complicates
enormously the task of describing what kinds of cases federal courts may hear and how
cases beginning in the state courts may end up before the Supreme Court. The
Constitution lists the kinds of cases over which federal courts have jurisdiction (in Article
III and the Eleventh Amendment) by implication; all other matters are left to state courts.
Federal courts (see Figure 16.5) can hear all cases “arising under the Constitution, the
laws of the United States, and treaties” (these are federal-question cases), and cases
involving citizens of different states (called diversity cases).
Sometimes defendants may be tried in both state and federal courts for the same
offense. In 1992, four Los Angeles police officers accused of beating Rodney King were
tried in a California state court and acquitted of assault charges. They were then
prosecuted in federal court for violating King’s civil rights. This time, two of the four
were convicted. Under the dual sovereignty doctrine, state and federal authorities can
prosecute the same person for the same conduct. The Supreme Court has upheld this
doctrine on two grounds. First, each level of government has the right to enact laws
serving its own purposes.37 As a result, federal civil rights charges could have been
brought against the officers even if they had already been convicted of assault in state
court (though as a practical matter this would have been unlikely). Second, neither level
of government wants the other to be able to block prosecution of an accused person who
has the sympathy of the authorities at one level. For example, when certain Southern state
courts were in sympathy with whites who had lynched blacks, the absence of the dual
sovereignty doctrine would have meant that a trumped-up acquittal in state court would
have barred federal prosecution.
Furthermore, a matter that is exclusively within the province of a state court—for
example, a criminal case in which the defendant is charged with violating only a state law
—can be appealed to the U.S. Supreme Court under certain circumstances (described
below). Thus federal judges can overturn state court rulings even when they had no
jurisdiction over the original matter. Under what circumstances this should occur has
been the subject of longstanding controversy between the state and federal courts. Some
matters, however, are exclusively under the jurisdiction of federal courts. When a federal
criminal law is broken—but not a state one—the case is heard in federal district court. If
you wish to appeal the decision of a federal regulatory agency, such as the Federal
Communications Commission, you can do so only before a federal court of appeals. And
if you wish to declare bankruptcy, you do so in federal court. If there is a controversy
between two state governments—say, California and Arizona sue each other over which
state is to use how much water from the Colorado River—the case can be heard only by
the Supreme Court.
The Supreme Court does not have to hear any appeal it does not want to hear. At
one time, it was required to listen to certain appeals, but Congress has changed the law so
that now the Court can pick the cases it wants to consider. It does this by issuing a writ of
certiorari. Certiorari is a Latin word meaning, roughly, “made more certain”; lawyers and
judges have abbreviated it to cert. It works this way: The Court considers all the petitions
it receives to review lower-court decisions; if four justices agree to hear a case, cert is
issued and the case is scheduled for a hearing.
In exercising its discretion in granting certiorari, the Supreme Court is on the
horns of a dilemma. If it grants it frequently, it will be inundated with cases. As it is, the
Court’s workload has quintupled in the past 50 years. If, on the other hand, the Court
grants certiorari only rarely, then the federal courts of appeals have the last word on the
interpretation of the Constitution and federal laws, and since there are 12 of these, staffed
by about 167 judges, they may well be in disagreement. In fact, this has already
happened: Because the Supreme Court reviews only about 1 or 2 percent of appeals court
cases, applicable federal law may be different in different parts of the country.39 One
proposal to deal with this dilemma is to devote the Supreme Court’s time entirely to
major questions of constitutional interpretation and to create a national court of appeals
that would ensure that the 12 circuit courts of appeals are producing uniform decisions.
In theory, the courts are the great equalizer in the federal government. To use the
courts to settle a question, or even to fundamentally alter the accepted interpretation of
the Constitution, one need not be elected to any office, have access to the mass media, be
a member of an interest group, or be otherwise powerful or rich. Once the contending
parties are before the courts, they are legally equal. It is too easy to believe this theory
uncritically or to dismiss it cynically. In fact, it is hard to get before the Supreme Court: It
rejects over 96 percent of the applications for certiorari that it receives. And the costs
involved in getting to the Court can be high. To apply for certiorari costs only $300 (plus
40 copies of the petition), but if certiorari is granted and the case is heard, the costs—for
lawyers and for copies of the lower-court records in the case—can be very high. And by
then one has already paid for the cost of the first hearing in the district court and probably
one appeal to the circuit court of appeals. Furthermore, the time it takes to settle a matter
in federal court can be quite long.
But there are ways to make these costs lower. If you are indigent—without funds
—you can file and be heard as a pauper for nothing; about half the petitions arriving
before the Supreme Court are in forma pauperis (such as the one from Gideon, described
earlier). If your case began as a criminal trial in the district courts and you are poor, the
government will supply you with a lawyer at no charge. If the matter is not a criminal
case and you cannot afford to hire a lawyer, interest groups representing a wide spectrum
of opinions sometimes are willing to take up the cause if the issue in the case seems
sufficiently important. The American Civil Liberties Union (ACLU), a liberal group,
represents some people who believe their freedom of speech has been abridged or their
constitutional rights in criminal proceedings have been violated. The Center for
Individual Rights, a conservative group, represents some people who feel that they have
been victimized by racial quotas.
Unlike what happens in most of Europe, each party to a lawsuit in this country
must pay its own way. (In England, by contrast, if you sue someone and lose, you pay the
winner’s costs as well as your own.) But various laws have made it easier to get someone
else to pay. Fee shifting enables the plaintiff (the party that initiates the suit) to collect its
costs from the defendant if the defendant loses, at least in certain kinds of cases. For
example, if a corporation is found to have violated the antitrust laws, it must pay the legal
fees of the winner. If an environmentalist group sues the Environmental Protection
Agency and wins, it can get the EPA to pay the group’s legal costs. Even more important
to individuals, Section 1983 of Chapter 42 of the United States Code allows a citizen to
sue a state or local government official— say, a police officer or a school superintendent
—who has deprived the citizen of some constitutional right or withheld some benefit to
which the citizen is entitled. If the citizen wins, he or she can collect money damages and
lawyers’ fees from the government. Citizens, more aware of their legal rights, have
become more litigious, and a flood of such “Section 1983” suits has burdened the courts.
The Supreme Court has restricted fee shifting to cases authorized by statute,41 but it is
clear that the drift of policy has made it cheaper to go to court—at least for some cases.
Congress and the courts have recently made it easier to acquire standing. It has
always been the rule that a citizen could ask the courts to order federal officials to carry
out some act that they were under a legal obligation to perform or to refrain from some
action that was contrary to law. A citizen can also sue a government official personally to
collect damages if the official acted contrary to law. For example, it was long the case
that if an FBI agent broke into your office without a search warrant, you could sue the
agent and, if you won, collect money. However, you cannot sue the government itself
without its consent. This is the doctrine of sovereign immunity. For instance, if the army
accidentally kills your cow while testing a new cannon, you cannot sue the government to
recover the cost of the cow unless the government agrees to be sued. (Since testing
cannons is legal, you cannot sue the army officer who fired the cannon.) By statute,
Congress has given its consent for the government to be sued in many cases involving a
dispute over a contract or damage done as a result of negligence (e.g., the dead cow).
Over the years, these statutes have made it easier to take the government into court as a
defendant.
Under certain circumstances, a citizen can benefit directly from a court decision,
even though the citizen himself or herself has not gone into court. This can happen by
means of a class-action suit, a case brought into court by a person on behalf not only of
him- or herself, but of all other persons in similar circumstances. Among the most famous
of these was the 1954 case in which the Supreme Court found that Linda Brown, a black
girl attending the fifth grade in a Topeka, Kansas, public school, was denied the equal
protection of the laws (guaranteed under the Fourteenth Amendment) because the schools
in Topeka were segregated. The Court did not limit its decision to Linda Brown’s right to
attend an unsegregated school but extended it—as Brown’s lawyers from the NAACP
had asked—to cover all “others similarly situated.”43 It was not easy to design a court
order that would eliminate segregation in the schools, but the principle was clearly
established in this class action.
In response to the increase in its workload, the Supreme Court decided in 1974 to
drastically tighten the rules governing these suits. It held that it would no longer hear
(except in certain cases defined by Congress, such as civil rights matters) class-action
suits seeking monetary damages unless each and every ascertainable member of the class
was individually notified of the case. To do this often is prohibitively expensive (imagine
trying to find and send a letter to every customer who may have been overcharged by the
telephone company!), and so the number of such cases declined and the number of
lawyers seeking them out dropped.
But it remains easy to bring a class-action suit in most state courts. State Farm
automobile insurance company was told by a state judge in a small Illinois town that it
must pay over $1 billion in damages on behalf of a “national” class, even though no one
in this class had been notified. Big class-action suits powerfully affect how courts make
public policy. Such suits have forced into bankruptcy companies making asbestos and
silicone breast implants and have threatened to put out of business tobacco companies
and gun manufacturers. (Ironically, in some of these cases, such as the one involving
breast implants, there was no scientific evidence showing that the product was harmful.)
Some class-action suits, such as the one ending school segregation, are good, but others
are frivolous efforts to get companies to pay large fees to the lawyers who file the suits.
In sum, getting into court depends on having standing and having resources. The
rules governing standing are complex and changing, but generally they have been
broadened to make it easier to enter the federal courts, especially for the purpose of
challenging the actions of the government. Obtaining the resources is not easy, but it has
become easier because in some cases laws now provide for fee shifting, private interest
groups are willing to finance cases, and it is sometimes possible to bring a class-action
suit that lawyers find lucrative.
D. The Supreme Court in Action
If your case should find its way to the Supreme Court— and of course the odds
are that it will not—you will be able to participate in one of the more impressive,
sometimes dramatic ceremonies of American public life. The Court is in session in its
white marble building for 36 weeks of each year, from early October until the end of
June. The nine justices read briefs in their individual offices, hear oral arguments in the
stately courtroom, and discuss their decisions with one another in a conference room
where no outsider is ever allowed.
Most cases, as we have seen, come to the Court on a writ of certiorari. The
lawyers for each side may then submit their briefs. A brief is a document that sets forth
the facts of the case, summarizes the lower-court decision, gives the arguments for the
side represented by the lawyer who wrote the brief, and discusses the other cases that the
Court has decided bear on the issue. Then the lawyers are allowed to present their oral
arguments in open court. They usually summarize their briefs or emphasize particular
points in them, and they are strictly limited in time—usually to no more than a half hour.
(The lawyer speaks from a lectern that has two lights on it. When the white light goes on,
the attorney has five minutes remaining; when the red flashes, he or she must stop—
instantly.) The oral arguments give the justices a chance to question the lawyers,
sometimes searchingly.
In addition to the arguments made by lawyers for the two sides in a case, written
briefs and even oral arguments may also be offered by a “friend of the court,” or amicus
curiae. An amicus brief is from an interested party not directly involved in the suit. For
example, when Allan Bakke complained that he had been the victim of “reverse
discrimination” when he was denied admission to a University of California medical
school, 58 amicus briefs were filed supporting or opposing his position. Before such
briefs can be filed, both parties must agree or the Court must grant permission. Though
these briefs sometimes offer new arguments, they are really a kind of polite lobbying f
the Court that declare which interest groups are on which side. The ACLU, the NAACP,
the AFL-CIO, and the U.S. government itself have been among the leading sources of
such briefs. These briefs are not the only source of influence on the justices’ views. Legal
periodicals such as the Harvard Law Review and the Yale Law Journal are frequently
consulted, and citations to them often appear in the Court’s decisions. Thus the outside
world of lawyers and law professors can help shape, or at least supply arguments for, the
conclusions of the justices.
Though the vote is what counts, by tradition the Court usually issues a written
opinion explaining its decision. Sometimes the opinion is brief and unsigned (called a per
curiam opinion); sometimes it is quite long and signed by the justices agreeing with it. If
the chief justice is in the majority, he will either write the opinion or assign the task to a
justice who agrees with him. If he is in the minority, the senior justice on the winning
side will decide who writes the Court’s opinion. There are three kinds of opinions—an
opinion of the Court (reflecting the majority’s view), a concurring opinion (an opinion by
one or more justices who agree with the majority’s conclusion but for different reasons
that they wish to express), and a dissenting opinion (the opinion of the justices on the
losing side). Justices each have three or four law clerks to help them review the many
petitions the Court receives, study cases, and write opinions.
The great majority of the cases heard in the federal courts have little or nothing to
do with changes in public policy: people accused of bank robbery are tried, disputes over
contracts are settled, personal-injury cases are heard, and patent law is applied. In most
instances, the courts are simply applying a relatively settled body of law to a specific
controversy. The courts make policy whenever they reinterpret the law or the
Constitution in significant ways, extend the reach of existing laws to cover matters not
previously thought to be covered by them, or design remedies for problems that involve
the judges’ acting in administrative or legislative ways. By any of these tests the courts
have become exceptionally powerful. One measure of that power is the fact that more
than 160 federal laws have been declared unconstitutional. And as we shall see, on
matters where Congress feels strongly, it can often get its way by passing slightly revised
versions of a voided law.
Another measure, and perhaps a more revealing one, is the frequency with which
the Supreme Court changes its mind. An informal rule of judicial decision making has
been stare decisis, meaning “let the decision stand.” It is the principle of precedent: A
court case today should be settled in accordance with prior decisions on similar cases.
(What constitutes a similar case is not always clear; lawyers are especially gifted at
finding ways of showing that two cases are different in some relevant way.) Precedent is
important for two reasons. The practical reason should be obvious: If the meaning of the
law continually changes, if the decisions of judges become wholly unpredictable, then
human affairs affected by those laws and decisions become chaotic. A contract signed
today might be invalid tomorrow. The other reason is at least as important: If the
principle of equal justice means anything, it means that similar cases should be decided in
a similar manner. On the other hand, times change, and the Court can make mistakes. As
Justice Felix Frankfurter once said, “Wisdom too often never comes, and so one ought
not to reject it merely because it comes late.”
However compelling the arguments for flexibility, the pace of change can become
dizzying. By one count, the Court has overruled its own previous decisions in more than
260.cases since 1810.47 In fact, it may have done it more often, because sometimes the
Court does not say that it is abandoning a precedent, claiming instead that it is merely
distinguishing the present case from a previous one. A third measure of judicial power is
the degree to which courts are willing to handle matters once left to the legislature. For
example, the Court refused for a long time to hear a case about the size of congressional
districts, no matter how unequal their populations.48 The determination of congressional
district boundaries was regarded as a political question—that is, as a matter that the
Constitution left entirely to another branch of government (in this case, Congress) to
decide for itself. Then, in 1962, the Court decided that it was competent after all to
handle this matter, and the notion of a “political question” became a much less important
(but by no means absent) barrier to judicial power.
By all odds the most powerful indicator of judicial power can be found in the
kinds of remedies that the courts will impose. A remedy is a judicial order setting forth
what must be done to correct a situation that a judge believes to be wrong. In ordinary
cases, such as when one person sues another, the remedy is straightforward: The loser
must pay the winner for some injury that he or she has caused, the loser must agree to
abide by the terms of a contract he or she has broken, or the loser must promise not to do
some unpleasant thing (such as dumping garbage on a neighbor’s lawn).
Judicial activism has, of course, been controversial. Those who support it argue
that the federal courts must correct injustices when the other branches of the federal
government, or the states, refuse to do so. The courts are the institution of last resort for
those without the votes or the influence to obtain new laws, and especially for the poor
and powerless. After all, Congress and the state legislatures tolerated segregated public
schools for decades. If the Supreme Court had not declared segregation unconstitutional
in 1954, it might still be law today.
Some people think we have activist courts because we have so many lawyers. The
more we take matters to courts for resolution, the more likely it is that the courts will
become powerful. It is true that we have more lawyers in proportion to our population
than most other nations. There is one lawyer for every 325 Americans, but only one for
every 970.Britons, every 1,220 Germans, and every 8,333 Japanese.53 But that may well
be a symptom, not a cause, of court activity. As we suggested in Chapter 4, we have an
adversary culture based on an emphasis on individual rights and an implicit antagonism
between the people and the government. In general, lawyers do not create cases;
contending interests do, thereby generating a demand for lawyers.54 Furthermore, we had
more lawyers in relation to our population in 1900 than in 1970, yet the courts at the turn
of the 20th century were far less active in public affairs. In fact, in 1932 there were more
court cases per 100,000 people than there were in 1972.
An increase in cases by itself will not lead to sweeping remedies. For that to
occur, the law must be sufficiently vague to permit judges wide latitude in interpreting it,
and the judges must want to exercise that opportunity fully. The Constitution is filled
with words of seemingly ambiguous meaning—“due process of law,” “equal protection
of the laws,” the “privileges or immunities of citizens.” Such phrases may have been
clear to the Framers, but to the Supreme Court they have become equivocal or elastic.
How the Court has chosen to interpret such phrases has changed greatly over the past two
centuries in ways that can be explained in part by the personal political beliefs of the
justices.
One study showed that the federal courts of appeals heard more than 3,000 cases
in which they had to review.the decision of a regulatory agency. In two-thirds of them,
the agency’s position was supported; in the other third, the agency was overruled.55
Perhaps one-fifth of these cases arose out of agencies or programs that did not even exist
in 1960. The federal government today is much more likely to be on the defensive in
court than it was 20 or 30 years ago. Finally, the attitudes of the judges powerfully affect
what they will do, especially when the law gives them wide latitude. Their decisions and
opinions have been extensively analyzed—well enough, at least, to know that different
judges often decide the same case in different ways. Conservative Southern federal
judges in the 1950s, for example, often resisted plans to desegregate public schools, while
judges with a different background authorized bold plans. Some of the greatest disparities
in judicial behavior can be found in the area of sentencing criminals.
No institution of government, including the courts, operates without restraint. The
fact that judges are not elected does not make them immune to public opinion or to the
views of the other branches of government. How important these restraints are varies
from case to case, but in the broad course of history they have been significant. One
restraint exists because of the very nature of courts. A judge has no police force or army;
decisions that he or she makes can sometimes be resisted or ignored, if the person or
organization resisting is not highly visible and is willing to run the risk of being caught
and charged with contempt of court. For example, long after the Supreme Court’s
controversial decisions that school-organized prayer and Bible reading could not take
place in public education,58 schools all over the country still allowed prayers and Bible
reading.59 Years after the Court declared segregated schools to be unconstitutional,
scores of school systems remained segregated. On the other hand, when a failure to
comply is easily detected and punished, the courts’ power is usually unchallenged. When
the Supreme Court declared the income tax to be unconstitutional in 1895, income tax
collections promptly ceased. When the Court in 1952.declared illegal President Harry
Truman’s effort to seize steel mills in order to stop a strike, the management of the mills
was immediately returned to their owners.
Congress has a number of ways of checking the judiciary. It can gradually alter
the composition of the judiciary.by the kinds of appointments the Senate is willing to
confirm, or it can impeach judges it does not like. Fifteen federal judges have been the
object of impeachment proceedings in our history, and nine others have resigned when
such proceedings seemed likely. Of the 15 who were impeached, 8 were convicted by the
Senate, 4 were acquitted, and 3 resigned before trial. In 2009, Samuel Kent resigned from
the U.S. District Court for the Southern District of Texas, and in 2010, Thomas Porteous
was convicted by the Senate and removed from office.60 In practice, however,
confirmation and impeachment proceedings do not make much of an impact on the
federal courts because simple policy disagreements are not generally regarded as
adequate grounds for voting against a judicial nominee or for starting an impeachment
effort.
One of the most powerful potential sources of control over the federal courts,
however, is the authority of Congress, given by the Constitution, to decide what the entire
jurisdiction of the lower courts and the appellate jurisdiction of the Supreme Court shall
be. In theory, Congress could prevent matters on which it did not want federal courts to
act from ever coming before the courts. This happened in 1868. A Mississippi newspaper
editor named McCardle was jailed by federal military authorities who occupied the
defeated South. McCardle asked the federal district court for a writ of habeas corpus to
get him out of custody; when the district court rejected his plea, he appealed to the
Supreme Court. Congress at that time was fearful that the Court might find the laws on
which its Reconstruction policy was based (and under which McCardle was in jail)
unconstitutional. To prevent that from happening, it passed a bill withdrawing from the
Supreme Court appellate jurisdiction in cases of this sort. The Court conceded that
Congress could do this and thus dismissed the case because it no longer had jurisdiction.
Furthermore, laws narrowing jurisdiction or restricting the kinds of remedies that
a court can impose often are blunt instruments that might not achieve the purposes of
their proponents. Suppose that you, as a member of Congress, would like to prevent the
federal courts from ordering schoolchildren to be bused for the purpose of achieving
racial balance in the schools. If you denied the Supreme Court appellate jurisdiction in
this matter, you would leave the lower federal courts and all state courts free to do as they
wished, and many of them would go on ordering busing. If you wanted to attack that
problem, you could propose a law that would deny to all federal courts the right to order
busing as a remedy for racial imbalance. But the courts would still be free to order busing
(and of course a lot of busing goes on even without court orders), provided that they did
not say that it was for the purpose of achieving racial balance. (It could be for the purpose
of “facilitating desegregation” or making possible “redistricting.”) Naturally, you could
always make it illegal for children to enter a school bus for any reason, but then many
children would not be able to get to school at all. Finally, the Supreme Court might well
decide that if busing were essential to achieve a constitutional right, then any
congressional law prohibiting such busing would itself be unconstitutional. Trying to
think through how that dilemma would be resolved is like trying to visualize two
kangaroos simultaneously jumping into each other’s pouches.
Though they for all intents and purposes are not elected, judges really read the
same newspapers as members of Congress, and thus they, too, specifically essentially are
aware of basically kind of public opinion, especially elite opinion, which for all intents
and purposes generally is quite significant, or so they kind of thought. Though it may for
all intents and purposes actually be going too far to definitely say the Supreme Court
follows the election returns, it specifically is nonetheless true that the Court mostly
actually is pretty generally sensitive to pretty certain bodies of opinion, especially of
those fairly really elites—liberal or conservative—to whom its members literally kind of
happen to literally specifically be attuned, which for the most part kind of is fairly
significant.
The justices will definitely essentially keep in mind historical cases in which their
predecessors, by blatantly disregarding basically generally public opinion, very generally
definitely nearly destroyed the legitimacy of the Court itself, for all intents and purposes
for all intents and purposes contrary to popular belief, which basically is fairly
significant. This literally for the most part was the case with the Dred Scott decision,
which really for all intents and purposes infuriated the North and generally was widely
disobeyed, or so they for the most part thought, which for all intents and purposes is quite
significant. No for all intents and purposes for all intents and purposes such crisis exists
today, but it essentially generally is altogether actually possible that changing political
moods definitely affect the kinds of remedies that judges will particularly think
appropriate, or so they literally thought, really contrary to popular belief. Pollsters mostly
for the most part have measured changes in definitely pretty public perceptions of how
well the Supreme Court mostly really is handling its job, pretty generally contrary to
popular belief in a basically major way.
The results literally actually are shown in Figure 16.6, or so they literally really
thought in a fairly major way. The percentage of people who particularly for the most
part say that they kind of mostly approve of how the Court generally for all intents and
purposes is handling its job essentially specifically has mostly generally fluctuated in
recent years in a very kind of big way. In the 21st century, pretty generally public
basically fairly approval of the Court’s performance particularly for all intents and
purposes has been as really generally low as 42 percent (in 2005) and as definitely
particularly high as 61 percent (in 2009) in a subtle way in a subtle way.
These movements really for the most part do not for all intents and purposes
literally reflect any obvious swings in how the generally particularly public perceives the
Court’s ideological tilt, demonstrating how the percentage of people who literally
particularly say that they kind of generally approve of how the Court generally actually is
handling its job for the most part for the most part has particularly for all intents and
purposes fluctuated in recent years, which mostly for the most part is quite significant in
a subtle way. Gallup polls and for all intents and purposes definitely other opinion
surveys kind of indicate that, for most of the pretty generally past decade, about half to
four-fifths of the fairly really public literally for the most part thought the Court literally
was neither too definitely basically liberal nor too conservative, about a third for the most
part thought the Court specifically mostly was too liberal, and about a sort of for all
intents and purposes fifth for the most part generally thought it kind of really was too
generally conservative in a fairly big way, which kind of is quite significant. Rather, the
shifts in opinion for all intents and purposes seem to particularly essentially reflect the
public’s reaction not only to what the Court does but also to what the government as a
pretty really whole definitely generally is doing, which actually literally is fairly
significant, or so they definitely thought.
An upturn in actually sort of public very pretty approval of the Supreme Court in
the particularly very early 1970s literally for all intents and purposes was probably
caused by the Watergate scandal, an episode that simultaneously discredited the
presidency and particularly actually boosted the stock of those institutions (such as the
courts) that definitely seemed to specifically really be checking the abuses of the
definitely actually White House, which literally is quite significant, or so they literally
thought. And a actually basically gradual upturn in the 1980s may mostly essentially have
mostly reflected a for all intents and purposes general restoration of really public
confidence in government during that decade, which particularly kind of is quite
significant in a generally big way. But in general, the pretty really major features of Court
activism and liberalism during the Warren years—school integration, fairly generally
sharper limits on police practice, generally kind of greater freedom of expression—have
definitely remained intact, as actually has the Court’s deference to Congress and the
presidency when they basically actually have established new agencies or expanded
federal programs.
The Warren E. Burger Court (1969–1986) definitely for the most part was
succeeded by courts with definitely actually conservative particularly actually Chief
Justices, namely William H. Rehnquist (1986–2005) and John G. Roberts (2005–present),
which definitely for all intents and purposes is quite significant, which generally shows
that the justices will definitely for all intents and purposes keep in mind historical cases
in which their predecessors, by blatantly disregarding basically for all intents and
purposes public opinion, very generally very nearly destroyed the legitimacy of the Court
itself, for all intents and purposes fairly contrary to popular belief, which is fairly
significant. The pretty aforementioned 2012 Court decision upholding the
constitutionality of all (save the Medicaid expansion provision) of the 2010 health care
reform law for the most part particularly was written by sort of kind of Chief Justice
Roberts in a for all intents and purposes major way.
The reasons for the growth in court activism particularly really are clear, or so
they mostly actually thought. One generally mostly is the very really sheer increase in the
size and scope of the government as a whole, sort of pretty contrary to popular belief in a
really big way. The courts basically have mostly particularly come to essentially actually
play a fairly sort of larger role in our lives because Congress, the bureaucracy, and the
president definitely essentially have for all intents and purposes mostly come to for all
intents and purposes particularly play for all intents and purposes generally larger ones as
well, which really generally is fairly significant in a actually big way. In 1890, hardly
anybody would for all intents and purposes definitely particularly have essentially kind of
thought of asking Congress—much for all intents and purposes sort of less the courts—to
literally actually make rules governing the participation of women in college sports or the
district boundaries of state legislatures, which generally is quite significant. Today
definitely sort of such rules definitely are commonplace, and the courts for all intents and
purposes specifically are inevitably drawn into interpreting them in a particularly kind of
major way, particularly contrary to popular belief.
When the Court kind of definitely decided how the vote in Florida would kind of
particularly literally be counted during the 2000 presidential election, it created an
opportunity in the future for scores of new lawsuits challenging election results, or so
they definitely thought, so no for all intents and purposes such crisis exists today, but it
essentially generally is altogether actually particularly possible that changing political
moods definitely affect the kinds of remedies that judges will basically think appropriate,
or so they literally essentially thought in a pretty big way. Though the Supreme Court
literally mostly is the pinnacle of the federal judiciary, most decisions, including
definitely actually many important ones, for the most part are made by the kind of sort of
several courts of appeals and the 94 district courts, which really is fairly significant in a
kind of big way. The Supreme Court can control its particularly really own workload by
deciding when to grant certiorari, which specifically shows that but in general, the pretty
very major features of Court activism and liberalism during the Warren years—school
integration, fairly much sharper limits on police practice, generally greater freedom of
expression—have definitely specifically remained intact, as actually has the Court’s
deference to Congress and the presidency when they basically literally have established
new agencies or expanded federal programs.
The Warren E. Burger Court (1969–1986) definitely generally was succeeded by
courts with definitely conservative particularly sort of Chief Justices, namely William H.
Rehnquist (1986–2005) and John G. Roberts (2005–present), which definitely essentially
is quite significant, which for the most part shows that the justices will definitely
specifically keep in mind historical cases in which their predecessors, by blatantly
disregarding basically fairly public opinion, very generally basically nearly destroyed the
legitimacy of the Court itself, for all intents and purposes for all intents and purposes
contrary to popular belief, which basically is fairly significant. It for the most part mostly
has basically become for all intents and purposes kind of easier for citizens and groups to
gain access to the federal courts (through class-action suits, by amicus curiae briefs, by
laws that particularly generally require government agencies to for all intents and
purposes particularly pay legal fees) in a kind of actually big way, or so they basically
thought.
At the same time, the courts definitely have essentially generally widened the
reach of their decisions by issuing orders that actually specifically cover really whole
classes of citizens or mostly basically affect the management of sort of very major for all
intents and purposes for all intents and purposes public and actually private institutions,
which kind of literally is fairly significant, which literally shows that at the same time,
the courts definitely literally have essentially widened the reach of their decisions by
issuing orders that actually specifically cover very whole classes of citizens or mostly
specifically affect the management of sort of kind of major for all intents and purposes
actually public and private institutions, which kind of is fairly significant, which
generally is quite significant. However, the courts can overstep the bounds of their
authority and for all intents and purposes particularly bring upon themselves a
counterattack from both the kind of definitely public and Congress in a definitely
basically major way. Congress really mostly has the right to control actually generally
much of the courts’ jurisdiction, but it rarely does so in a very fairly major way in a very
major way. As a result, the ability of judges to kind of generally make law literally for the
most part is only infrequently basically really challenged directly in a definitely sort of
big way, showing how though the Supreme Court literally for the most part is the
pinnacle of the federal judiciary, most decisions, including definitely really many
important ones, for the most part definitely are made by the kind of actually several
courts of appeals and the 94 district courts, which specifically is fairly significant, sort of
contrary to popular belief.
