10 Key Courts Objectives
1. Explain what the Constitution says about the Supreme Court. Discuss the evolution of the federal judiciary overtime.
How things have changed. At the time our constitution was ratified Alexander Hamilton, in Federalist 78, referred to the United States judiciary and its Supreme Court as “the least dangerous branch.” It did not take long before Alexis de Tocqueville recognized that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Today the federal judiciary led by the United States Supreme Court resolve our most vexing political quandaries. Our least dangerous branch has evolved into our most potent political player.
The weapon that propelled the federal judiciary into the political limelight is judicial review. The precedent of judicial review was established in the courts case Marbury v. Madison (1803). Chief Justice John Marshall wrote famously, “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” In other words, the court would be the final arbiter in all-constitutional matters. The federal judiciary has the authority to rule on the constitutionality of all government activity on a case-by-case basis. This gives the federal judiciary tremendous power.
The Court’s power has also evolved over time due to certain key landmark precedents. In addition to the Marbury, McCulloch v. Maryland (1819) established national supremacy. In the Fulton steamboat monopoly case, Gibbons v. Ogden (1824), the court reinforced national supremacy by ruling broadly on the Constitution’s commerce clause.
Today the most notable issues facing the court revolve around civil liberties and civil rights. Nevertheless there are many other important issues that our court faces.
Few Americans bother to know much about the court. Read on and learn about the American judiciary.
2. Discuss the importance of stare decisis in judicial decision-making. Explain how it is similar to common law?
The bedrock of the American legal system is justice for all. Throughout our history we have committed to equality under the law. An important pillar of this system is the use of legal precedence.
Precedent simply means that once a court acts in a certain way there is an expectation that all who face similar circumstances will therefore be treated accordingly. In Latin this is referred to as “stare decisis.” This literally means “let the the decision stand.” Rooted in fairness, the practice of stare decisis assures that every citizen, regardless of race or class, is treated the same. Much of this is borrowed from English common law. In this way our law lives organically. As courts rule in individual cases our law and its protections also grow.
This is another way in which our judicial system, through informal means, continues to grow in its authority and importance.
3. Discuss the difference between district, appellate and Supreme courts. Explain the difference between appellate and original jurisdiction.
The American judiciary is characterized as a dual court system. There are national courts and state courts. This is due to federalism. Our emphasis here will be the national courts. There are also two types of law in this country, criminal law and civil law. Criminal law is law between the state and an individual. An example of criminal law would be an individual breaking the law by robbing a bank. Civil law is between two people. An example of civil law would be one person sues another person for violating a contract. It can be said that we live in a litigious society. We litigate, take people to court, for just about everything.
There are 94 District courts in the national or federal judiciary. District courts are the lowest trial courts. District courts have what is called original jurisdiction. They hear a case for the first time. It should be noted that most civil and criminal cases do not even make it to court. Most cases in our judicial system end in a settlement or plea bargain. A plea bargain is a deal made between the plaintiff and the defendant in order to bypass the need for a formal trial. In civil suits this involves an adequate financial settlement. In criminal cases this usually involves pleading guilty to a lesser charge.
In addition there are 12 Appellate Courts. Appellate Courts, often called circuit courts, hear federal appeals. If you lose in the District courts you can ask a higher court, an appellate court, to consider whether or not your trial followed the law correctly. If you lose in an Appellate Court you can appeal to the highest court in the land the United States Supreme Court. The only court mandated in the Constitution is the Supreme Court. The U.S. Congress has the authority to create courts and to determine the number of justices on the Supreme Court. In the U.S. Supreme Court, like all appellate courts, it is not a trial determining guilt or innocence. At stake is the constitutionality of law.
4. Explain the difference between criminal and civil law.
Just as there is a dual court system we have a dual legal system as well. We divide our law into two different types. We have both criminal and civil law. Though one might imagine from watching movies and television that criminal law predominates one should be aware that civil law is far more prevalent.
Civil law involves settling disputes between persons. Often it involves litigating these disputes in court. We are a litigious people. We bring lawsuits for just about anything. These disputes might involve personal injury, violations of contracts, divorce and a myriad of other quarrels. The vast majority of time our legal system is taken up by civil law.
Criminal law involves the statutory regulation of human behavior. A crime is when you violate a law established by the state. When you break a law and are found guilty you spend time in jail. You are a criminal. It should be noted, however, that our criminal justice system often faces overcrowding. The State often plea bargains to reduce the number of trials at given time. A plea bargain is when the accused are offered a lesser sentence if they confess to a lesser charge. In this way they bypass the legal system and go directly to sentencing and jail. Whether or not this is justice delayed and therefore justice denied is a matter of debate.
5. Explain the significance of the key players in the federal judiciary: Judges, Attorney General, Solicitor General. Discuss the selection process.
Like any important team, the roster tells it all. So it is when looking at the Federal Judiciary. There are many important but quite different players.
The stars, of course, are the federal judges themselves. Appointed for life by the president, the prestigious post of federal judge serve as our Platonic guardians. When law is unclear, it is a federal judge’s duty to make it plain. With more and more laws this duty makes federal judges far more important than once thought. But there are other important players in our federal judiciary.
One important player is the United States Attorney General. The Attorney General is in charge of the Department of Justice. The president directly appoints them.
Another player often forgotten about is the United States Solicitor General. The Solicitor General is the lead attorney for the U.S. government when arguing cases before the Supreme Court. The president directly appoints them.
The constitutional process on paper seems simple enough. The president of the United States appoints and the Senate confirms. Yet rarely is it this simple, especially when the president and the Senate majority are from different political parties.
Presidents attempt to pack the court with judges who share his/her political bent. This usually involves prospective judges passing a president’s litmus test. Every president typically has an issue or two that defines their respective political party. For Republicans a litmus test issue might be holding a pro-life position. Democratic presidents might demand prospective judges to hold broad commerce clause opinions. In either case the opposing party always complains. The opposition reminds the American people that justice is supposed to be blind. The Court is not supposed to reflect our political arena. It is for this reason that our founders gave our Supreme Court judges life terms. They are appointed and not elected.
6. Discuss contemporary jurisprudence and it effects. Explain judicial activism and judicial restraint.How do Courts make their decisions? How do judges go about making their decisions?
The process of making a judicial decision is called jurisprudence. Ideally, we all wish to believe that “justice is blind.” We hope that judges base their opinions upon what the law says and not on personal bias. There are two primary schools of jurisprudence.
One school of jurisprudence is called judicial restraint. These strict constructionists attempt to reserve their judgments to the original intent of the law. They often defer to the other branches and try to avoid making politically explosive decisions. Today conservatives tend to consider themselves practicing judicial restraint.
Another school of jurisprudence is called judicial activism. Activist judges see themselves as the last resort for the powerless. They are not afraid to see the constitution as living document. Furthermore when Congress writes vague laws it is the Court, they say, that needs to clearly define the government’s intent. Today liberals tend to support judicial activism.
Regardless of one’s jurisprudence, there is an expectation that the Court follows stare decisis. This is a Latin phrase that means, “let the decision stand.” In our legal system court precedent is the basis by which other like-minded cases are decided. In this way we all receive equal justice.
When the court does deviate from precedent it can be accused of becoming a policy-making institution. Here again we see why the court is no longer “the least dangerous branch.” The Court has evolved into an important political force. It is for this reason that court appointments have become major political battlegrounds.
7. Discuss the various checks and balances on the judicial branch. How effective are they?
With all of this newfound power what checks the Court? One significant check on the Supreme Court is its lack of enforcement. If court decisions deviate too far from national consensus the American public will simply not follow the opinion. Impeachment is another check but rarely used and never used successfully on a Supreme Court judge. Perhaps the most significant check on the Supreme Court is public opinion. The court is apprehensive to lose its prestige by ruling in ways that dismiss what broad majorities hold. In this way the Court is held in check.
Judicial review has empowered the court far beyond what the original constitution had intended. Used rarely at first, judicial review is now used quite frequently. Some might think this activism would stir public opinion against the court. On the contrary more and more Americans are not bothered by judicial activism. A powerful court is no longer feared.
Former Chief Justice Charles Evans Hughes wrote, “We are under a Constitution, but the Constitution is what the judges say it is.” This kind of court confidence might have surprised Alexander Hamilton but it does not seem to bother you and I. The federal judiciary is no longer “the least dangerous branch.” It may be the most dangerous. As we learn more about the dysfunctions of our political institutions perhaps a powerful court is just what we need.
8. Explain the process by which the U.S. Supreme Court makes its decisions. How do cases end up before the U.S. Supreme Court?
Cases that are heard in the U.S. Supreme Court must first show standing. Standing means that there is a constitutional question at stake. The legal process also takes substantial resources. Money is often a hurdle to overcome when considering an expensive appeal.
There are thousands of appeals made every year from Appellate Courts to the U.S. Supreme Court. Yet each year the Supreme Court docket, or calendar, only provides time to review about 80 cases. The odds are not good for your case being heard. The odds of your appeal being heard are improved if two lower court decisions contradict. If the Supreme Court agrees to hear your appeal they grant a Writ of Certiorari. This is a Latin term means “to make certain.” It takes four of the nine justices to grant a writ of certiorari. With only four justices required to accept an appeal, we see another example of how our government protects the rights of minority viewpoints. When the Supreme Court decides there is no further appeal. The decision is final.
Once your case has been granted certiorari the Supreme Court studies the critical briefs. These are the critical arguments that were made in the previous court hearings. Here the increased power of the law clerks is felt most. Each of the nine Supreme Court justices has at least two clerks who help weed through the complex legal arguments. Each case is given time for an oral argument. Before all nine justices lawyers are given 30-minutes to make their case. When the U.S. government is involved the Solicitor General makes the formal arguments. Many think this stage is purely cathartic. The most important arguments are found in the legal briefs and in the amicus briefs including law review articles. Supreme Court justices are influenced by legal elites. “Friends of the court” write Amicus briefs. These are affected parties who are not formally connected to the case. After oral arguments the Court meets to discuss the case. The Chief Justice guides the debate. In the end the Court votes. All that is required is a simple majority to decided. The most frequent vote tally in most Court terms is 5-4. If there is a tie vote in the Supreme Court the previous court decision prevails.
A simple vote is enough. Once the Court has decided the outcome it is essential for the justices to write their rationale in a formal opinion.
9. Why do justices issue written opinions? Identify the types of opinions issued by the Court.
There are four types of Court opinions:
Majority Opinion: This opinion, often called the Court opinion, establishes the rationale of the final Court decision and represents the opinion of most of the judges.
Concurring Opinion: A judge writes this opinion from within the majority who holds a different legal position. This judge agrees with the outcome but for different reasons.
Minority Opinion: This opinion, often called a dissenting opinion, is written to oppose the majority decision. These judges disagree with the outcome of this case.
Per Curiam: This type of opinion is unsigned. Rarely used, a per curiam opinion is written when there is overwhelming unanimity and no single judge wants to be highlighted as its author.
10. Discuss the relationship between the Supreme Court and public opinion. Discuss the role politics now plays in the federal judiciary. Do Courts follow election returns?
The often hyperbolized hubris of the courts has been supplanted by the stark reality that democratic self-governance is jeopardized by the judicial usurpation of politics. In other words, the court has hesitatingly entered the political thicket and is not turning back.
So much so that we now unabashedly say “the Supreme Court follows election returns.” The court has become quite sensitive to the political atmosphere that surrounds its decisions. It acts accordingly.
Supreme Court Justice Sandra D. O’Connor wrote of this in the Planned Parenthood (1992) opinion:
“The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands… Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
When studying the court today one notices political blocs. Conservatives and liberals begin to act quite predictably. It is for this reason that presidential appointments to the federal courts have become so politically charged. American justice is not the only principle at stake. Also at stake is our political partiality for years to come.
Source: citizenu.org
How things have changed. At the time our constitution was ratified Alexander Hamilton, in Federalist 78, referred to the United States judiciary and its Supreme Court as “the least dangerous branch.” It did not take long before Alexis de Tocqueville recognized that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Today the federal judiciary led by the United States Supreme Court resolve our most vexing political quandaries. Our least dangerous branch has evolved into our most potent political player.
The weapon that propelled the federal judiciary into the political limelight is judicial review. The precedent of judicial review was established in the courts case Marbury v. Madison (1803). Chief Justice John Marshall wrote famously, “It is emphatically the province and duty of the Judicial Department [the judicial branch] to say what the law is.” In other words, the court would be the final arbiter in all-constitutional matters. The federal judiciary has the authority to rule on the constitutionality of all government activity on a case-by-case basis. This gives the federal judiciary tremendous power.
The Court’s power has also evolved over time due to certain key landmark precedents. In addition to the Marbury, McCulloch v. Maryland (1819) established national supremacy. In the Fulton steamboat monopoly case, Gibbons v. Ogden (1824), the court reinforced national supremacy by ruling broadly on the Constitution’s commerce clause.
Today the most notable issues facing the court revolve around civil liberties and civil rights. Nevertheless there are many other important issues that our court faces.
Few Americans bother to know much about the court. Read on and learn about the American judiciary.
2. Discuss the importance of stare decisis in judicial decision-making. Explain how it is similar to common law?
The bedrock of the American legal system is justice for all. Throughout our history we have committed to equality under the law. An important pillar of this system is the use of legal precedence.
Precedent simply means that once a court acts in a certain way there is an expectation that all who face similar circumstances will therefore be treated accordingly. In Latin this is referred to as “stare decisis.” This literally means “let the the decision stand.” Rooted in fairness, the practice of stare decisis assures that every citizen, regardless of race or class, is treated the same. Much of this is borrowed from English common law. In this way our law lives organically. As courts rule in individual cases our law and its protections also grow.
This is another way in which our judicial system, through informal means, continues to grow in its authority and importance.
3. Discuss the difference between district, appellate and Supreme courts. Explain the difference between appellate and original jurisdiction.
The American judiciary is characterized as a dual court system. There are national courts and state courts. This is due to federalism. Our emphasis here will be the national courts. There are also two types of law in this country, criminal law and civil law. Criminal law is law between the state and an individual. An example of criminal law would be an individual breaking the law by robbing a bank. Civil law is between two people. An example of civil law would be one person sues another person for violating a contract. It can be said that we live in a litigious society. We litigate, take people to court, for just about everything.
There are 94 District courts in the national or federal judiciary. District courts are the lowest trial courts. District courts have what is called original jurisdiction. They hear a case for the first time. It should be noted that most civil and criminal cases do not even make it to court. Most cases in our judicial system end in a settlement or plea bargain. A plea bargain is a deal made between the plaintiff and the defendant in order to bypass the need for a formal trial. In civil suits this involves an adequate financial settlement. In criminal cases this usually involves pleading guilty to a lesser charge.
In addition there are 12 Appellate Courts. Appellate Courts, often called circuit courts, hear federal appeals. If you lose in the District courts you can ask a higher court, an appellate court, to consider whether or not your trial followed the law correctly. If you lose in an Appellate Court you can appeal to the highest court in the land the United States Supreme Court. The only court mandated in the Constitution is the Supreme Court. The U.S. Congress has the authority to create courts and to determine the number of justices on the Supreme Court. In the U.S. Supreme Court, like all appellate courts, it is not a trial determining guilt or innocence. At stake is the constitutionality of law.
4. Explain the difference between criminal and civil law.
Just as there is a dual court system we have a dual legal system as well. We divide our law into two different types. We have both criminal and civil law. Though one might imagine from watching movies and television that criminal law predominates one should be aware that civil law is far more prevalent.
Civil law involves settling disputes between persons. Often it involves litigating these disputes in court. We are a litigious people. We bring lawsuits for just about anything. These disputes might involve personal injury, violations of contracts, divorce and a myriad of other quarrels. The vast majority of time our legal system is taken up by civil law.
Criminal law involves the statutory regulation of human behavior. A crime is when you violate a law established by the state. When you break a law and are found guilty you spend time in jail. You are a criminal. It should be noted, however, that our criminal justice system often faces overcrowding. The State often plea bargains to reduce the number of trials at given time. A plea bargain is when the accused are offered a lesser sentence if they confess to a lesser charge. In this way they bypass the legal system and go directly to sentencing and jail. Whether or not this is justice delayed and therefore justice denied is a matter of debate.
5. Explain the significance of the key players in the federal judiciary: Judges, Attorney General, Solicitor General. Discuss the selection process.
Like any important team, the roster tells it all. So it is when looking at the Federal Judiciary. There are many important but quite different players.
The stars, of course, are the federal judges themselves. Appointed for life by the president, the prestigious post of federal judge serve as our Platonic guardians. When law is unclear, it is a federal judge’s duty to make it plain. With more and more laws this duty makes federal judges far more important than once thought. But there are other important players in our federal judiciary.
One important player is the United States Attorney General. The Attorney General is in charge of the Department of Justice. The president directly appoints them.
Another player often forgotten about is the United States Solicitor General. The Solicitor General is the lead attorney for the U.S. government when arguing cases before the Supreme Court. The president directly appoints them.
The constitutional process on paper seems simple enough. The president of the United States appoints and the Senate confirms. Yet rarely is it this simple, especially when the president and the Senate majority are from different political parties.
Presidents attempt to pack the court with judges who share his/her political bent. This usually involves prospective judges passing a president’s litmus test. Every president typically has an issue or two that defines their respective political party. For Republicans a litmus test issue might be holding a pro-life position. Democratic presidents might demand prospective judges to hold broad commerce clause opinions. In either case the opposing party always complains. The opposition reminds the American people that justice is supposed to be blind. The Court is not supposed to reflect our political arena. It is for this reason that our founders gave our Supreme Court judges life terms. They are appointed and not elected.
6. Discuss contemporary jurisprudence and it effects. Explain judicial activism and judicial restraint.How do Courts make their decisions? How do judges go about making their decisions?
The process of making a judicial decision is called jurisprudence. Ideally, we all wish to believe that “justice is blind.” We hope that judges base their opinions upon what the law says and not on personal bias. There are two primary schools of jurisprudence.
One school of jurisprudence is called judicial restraint. These strict constructionists attempt to reserve their judgments to the original intent of the law. They often defer to the other branches and try to avoid making politically explosive decisions. Today conservatives tend to consider themselves practicing judicial restraint.
Another school of jurisprudence is called judicial activism. Activist judges see themselves as the last resort for the powerless. They are not afraid to see the constitution as living document. Furthermore when Congress writes vague laws it is the Court, they say, that needs to clearly define the government’s intent. Today liberals tend to support judicial activism.
Regardless of one’s jurisprudence, there is an expectation that the Court follows stare decisis. This is a Latin phrase that means, “let the decision stand.” In our legal system court precedent is the basis by which other like-minded cases are decided. In this way we all receive equal justice.
When the court does deviate from precedent it can be accused of becoming a policy-making institution. Here again we see why the court is no longer “the least dangerous branch.” The Court has evolved into an important political force. It is for this reason that court appointments have become major political battlegrounds.
7. Discuss the various checks and balances on the judicial branch. How effective are they?
With all of this newfound power what checks the Court? One significant check on the Supreme Court is its lack of enforcement. If court decisions deviate too far from national consensus the American public will simply not follow the opinion. Impeachment is another check but rarely used and never used successfully on a Supreme Court judge. Perhaps the most significant check on the Supreme Court is public opinion. The court is apprehensive to lose its prestige by ruling in ways that dismiss what broad majorities hold. In this way the Court is held in check.
Judicial review has empowered the court far beyond what the original constitution had intended. Used rarely at first, judicial review is now used quite frequently. Some might think this activism would stir public opinion against the court. On the contrary more and more Americans are not bothered by judicial activism. A powerful court is no longer feared.
Former Chief Justice Charles Evans Hughes wrote, “We are under a Constitution, but the Constitution is what the judges say it is.” This kind of court confidence might have surprised Alexander Hamilton but it does not seem to bother you and I. The federal judiciary is no longer “the least dangerous branch.” It may be the most dangerous. As we learn more about the dysfunctions of our political institutions perhaps a powerful court is just what we need.
8. Explain the process by which the U.S. Supreme Court makes its decisions. How do cases end up before the U.S. Supreme Court?
Cases that are heard in the U.S. Supreme Court must first show standing. Standing means that there is a constitutional question at stake. The legal process also takes substantial resources. Money is often a hurdle to overcome when considering an expensive appeal.
There are thousands of appeals made every year from Appellate Courts to the U.S. Supreme Court. Yet each year the Supreme Court docket, or calendar, only provides time to review about 80 cases. The odds are not good for your case being heard. The odds of your appeal being heard are improved if two lower court decisions contradict. If the Supreme Court agrees to hear your appeal they grant a Writ of Certiorari. This is a Latin term means “to make certain.” It takes four of the nine justices to grant a writ of certiorari. With only four justices required to accept an appeal, we see another example of how our government protects the rights of minority viewpoints. When the Supreme Court decides there is no further appeal. The decision is final.
Once your case has been granted certiorari the Supreme Court studies the critical briefs. These are the critical arguments that were made in the previous court hearings. Here the increased power of the law clerks is felt most. Each of the nine Supreme Court justices has at least two clerks who help weed through the complex legal arguments. Each case is given time for an oral argument. Before all nine justices lawyers are given 30-minutes to make their case. When the U.S. government is involved the Solicitor General makes the formal arguments. Many think this stage is purely cathartic. The most important arguments are found in the legal briefs and in the amicus briefs including law review articles. Supreme Court justices are influenced by legal elites. “Friends of the court” write Amicus briefs. These are affected parties who are not formally connected to the case. After oral arguments the Court meets to discuss the case. The Chief Justice guides the debate. In the end the Court votes. All that is required is a simple majority to decided. The most frequent vote tally in most Court terms is 5-4. If there is a tie vote in the Supreme Court the previous court decision prevails.
A simple vote is enough. Once the Court has decided the outcome it is essential for the justices to write their rationale in a formal opinion.
9. Why do justices issue written opinions? Identify the types of opinions issued by the Court.
There are four types of Court opinions:
Majority Opinion: This opinion, often called the Court opinion, establishes the rationale of the final Court decision and represents the opinion of most of the judges.
Concurring Opinion: A judge writes this opinion from within the majority who holds a different legal position. This judge agrees with the outcome but for different reasons.
Minority Opinion: This opinion, often called a dissenting opinion, is written to oppose the majority decision. These judges disagree with the outcome of this case.
Per Curiam: This type of opinion is unsigned. Rarely used, a per curiam opinion is written when there is overwhelming unanimity and no single judge wants to be highlighted as its author.
10. Discuss the relationship between the Supreme Court and public opinion. Discuss the role politics now plays in the federal judiciary. Do Courts follow election returns?
The often hyperbolized hubris of the courts has been supplanted by the stark reality that democratic self-governance is jeopardized by the judicial usurpation of politics. In other words, the court has hesitatingly entered the political thicket and is not turning back.
So much so that we now unabashedly say “the Supreme Court follows election returns.” The court has become quite sensitive to the political atmosphere that surrounds its decisions. It acts accordingly.
Supreme Court Justice Sandra D. O’Connor wrote of this in the Planned Parenthood (1992) opinion:
“The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands… Thus, the Court’s legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation.”
When studying the court today one notices political blocs. Conservatives and liberals begin to act quite predictably. It is for this reason that presidential appointments to the federal courts have become so politically charged. American justice is not the only principle at stake. Also at stake is our political partiality for years to come.
Source: citizenu.org
