LEARNING OBJECTIVES

 

 

After students have read and studied this chapter they should be able to:

·         Explain such major concepts of the American legal system as the common law tradition, precedent, jurisdiction, and stare decisis.

·         Outline the federal court system and explain the major function of each court:

o        District Court (trial court)

o        U.S. Court of Appeals (appellate court)

o        U.S. Supreme Court (ultimate appellate court with small original jurisdiction)

·         Identify and explain the different types of opinions that are delivered by justices of the Supreme Court.

o        Unanimous opinion.

o        Majority opinion.

o        Concurring opinion.

o        Dissenting opinion.

·         Summarize the presidential appointment process for all levels of federal courts including nominating candidates, their common qualifications, the role of senatorial courtesy, and how ideology has played an important role in the politics of appointments.

·         Define activist and restraintist philosophies, and strict versus broad construction.

·         Describe the Rehnquist court, including its ideology and the types of cases it chooses to hear.

·         Explain the policymaking function of the courts.

                                               

                                                                                                                                          CHAPTER OUTLINE

I.         The Common Law Tradition

             Law in the United States is based primarily on the English legal system because of our colonial heritage. Once the colonies became independent from England, they did not establish a new legal system. With few modifications, the old English legal system was kept intact and states began to operate their courts based on these traditions. Unlike many other countries, English law is based on common law. Common law is judge-made law based initially on the prevailing custom and eventually on legal precedent. Common law is based on stare decisis, which means to stand on decided cases. If a legal situation occurs that has previously been decided, the decision in the initial case is binding on the current situation. The major advantages to this type of system are efficiency and stability.

 

II.       Sources of American Law

A.            Constitutions. The U.S. Constitution is the supreme law of the land. It outlines the basic structure of our government, and also sets forth the powers of the branches of government. The Constitution also lists some of the important rights held by individuals and limitations on the government. State constitutions are another important source of American law. They provide the structure of state governments and are the guiding documents within the specific states.

B.         Statutes and Administrative Regulations. Statutes are an important source of law. Statutes are laws made by legislatures, including the Congress, state legislatures, and also county legislatures and local councils. These laws often delineate the rights (or responsibilities) of individuals. Administrative regulations are another source of law in the United States. Administrative regulations are rules issued by administrative agencies. Courts often are called upon to interpret administrative regulations.

C.       Case Law. How statutes and constitutions are interpreted by the courts is essential. The rules and principles announced in court decisions constitute a source of American law. In American case law, the doctrine of stare decisis is important. This means that U.S. case law is based on precedent.

 

III.     The Federal Court System

The United States has a dual court system, comprised of both federal and state courts.

A.      Basic Judicial Requirements.

1.       Jurisdiction. This is the authority to hear and decide cases. The Constitution says that the federal courts have jurisdiction in cases that meet one of the following criteria:

·   The case involves a federal question. A federal question is a legal question that is based, in whole or in part, on the U.S. Constitution, a treaty, or federal law. An example of a case asking a federal question would be one in which a plaintiff asserted his or her civil rights as guaranteed in the Bill of Rights (to free speech, or the free exercise of religion, for example).

·  The case involves diversity of citizenship. Diversity of citizenship means that the parties to a lawsuit are from different states, or that one pf the parties is a citizen or government of another country. These cases require a minimum of $75,000 in controversy.

2.       Standing to Sue. Another important criteria is that the party bringing a lawsuit must have “standing to sue.” That is, the party must have suffered harm, or be in danger of suffering harm, and there must be a justiciable a (real, not hypothetical) controversy.

B.       Types of Federal Courts. The federal court system is a three-tiered model.

1.       U.S. District Courts. These are trial courts with general jurisdiction. Each state has at least one federal district court, and there are now a total of 94 districts.

2.       U.S. Courts of Appeals. These are appellate courts that hear appeals of decisions of the U.S. District Courts located within their circuits. The Thirteenth Circuit (the Federal Circuit) has national appellate jurisdiction for cases involving the U.S. government. In appellate cases, the cases are not re-tried. Rather, a panel of judges reviews the transcript of the trial and the decision, and they decide if a mistake was made. The decisions of the appellate panels are nearly always final, the rare exception being when the U.S. Supreme Court opts to hear an appeal.

3.       The United States Supreme Court. This is the highest court in the country. It has jurisdiction to hear both original and appellate cases. Nearly all of its cases are appellate cases, with the original jurisdiction being either the U.S. District Courts or the highest state courts (it will exercise this prerogative only if federal jurisdiction is appropriate).

C.      Specialized Federal Courts and the War on Terrorism.

1.       The FISA Court. This is a secret court created under the Foreign Intelligence Surveillance Act (FISA) of 1978. It was established to issue warrants in espionage cases. After 9/11, the Bush administration extended the powers of this court to cover some criminal cases. Using FISA warrants, law enforcement can conduct secret searches.

2.       Alien “Removal Courts.” The Anti-Terrorism and Effective Death Penalty Act of 1996 created a alien “removal court” to hear evidence against suspected “alien terrorists.” The court is closed to the public. Judges rule on whether there is probable cause for deportation. The defendant cannot see the evidence that the prosecution used to secure the hearing.

D.      Parties to Lawsuits. Key terms: Plaintiff, the person or organization that initiates a lawsuit. Defendant, the person or organization against whom the lawsuit is brought. Litigate, to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit. Amicus Curiae brief, a brief (a document containing a legal argument supporting a desired outcome in a particular case) filed by a third party, or amicus curiae (Latin for “friend of the court”), who is not directly involved in the litigation but who has an interest in the outcome of the case. Class-action suit, a lawsuit seeking damages for “all persons similarly situated.”

E.       Procedural Rules. The parties must comply with procedural rules and orders given by the judge. When a party does not follow a court’s order, the court can cite him or her for contempt. Civil contempt is failing to comply with a court’s order for the benefit of another party. Criminal contempt is obstructing the administration of justice or bringing the court into disrespect.

 

IV.    The Supreme Court at Work

The Supreme Court begins the first Monday in October and usually adjourns in late June.  The nine justices must decide which cases to accept during the term, schedule oral arguments, read the legal briefs from all parties in the case, meet in conference to discuss the issues involved in each case, draft opinions of the Court for each case, and finally write the final opinions for each case. The cases that the Supreme Court has heard and their subsequent decisions have impacted our lives considerably. Their decisions have also had important policy outcomes. In the past several years, the Supreme Court has heard cases regarding states’ rights, capital punishment, abortion, privacy rights, civil rights for minorities, and free speech issues.

A.      Which Cases Reach the Supreme Court? Chief Justice William Rehnquist has observed that the selection of Supreme Court cases is somewhat subjective.

1.       Factors that Bear on the Decision. There are conditions that increase a case’s chance of being heard by the Supreme Court. These include:

·  When two lower courts are in disagreement.

·  When a lower court’s ruling conflicts with an existing Supreme Court ruling.

·  When a case has broad significance (as in desegregation or abortion decisions).

·  When a state court has decided a substantial federal question.

·  When the highest state court holds a federal law invalid, or upholds a state law that has been challenged as violating a federal law.

·  When a federal court holds an act of Congress unconstitutional.

·  When the solicitor general is pressuring the Court to hear a case. The solicitor general represents the executive branch of the government before the Court.

2.       Granting Petitions for Review. Review is granted by a writ of certiorari. To issue a writ, a minimum of four justices must agree that the case should be heard by the Supreme Court (the “rule of four”). This does not mean that all four justices are in agreement as to the outcome of the case in question. Rather they are in agreement this is an important case worthy of the attention of the Supreme Court.

          B.       Deciding Cases. Once the Court has decided to accept a case, both parties in the case will submit legal briefs and (usually) make oral arguments.

          C.       Decisions and Opinions. If the Court is unanimous in the ruling, one justice will be assigned to write the opinion of the Court. If the justices are divided on

                    the  reasoning of the outcome, there will be a majority opinion and dissenting opinions. Dissenting opinions are important because they typically form the

                    basis for reversal arguments. On occasion there will be a concurring opinion by a justice. This opinion states a differing point of view on a legal issue, but

                    supports a ruling in agreement with the majority of the Court.

 

V.      The Selection of Federal Judges

A.      Judicial Appointments. After the president has nominated a candidate for any federal judicial position, the United States Senate must consider the candidate. If a majority of the Senate approves the candidate, the president will then appoint the judge to serve for life. Senatorial courtesy is a constraint on the president’s freedom to appoint federal district judges. Senatorial courtesy allows a senator to veto a judicial appointment in her or his state.

1.       Federal District Court Judgeship Nominations. Until President Jimmy Carter (1977–1981) the nomination of federal district court judges actually originated with a senator or senators of the president’s party from the state in which there was a vacancy. In effect, judicial appointments were a form of political patronage. Since Ronald Reagan (1981–1989), the president has established complete control of nominations. Beginning in 2002, the Republicans have revoked the extension of senatorial courtesy to the opposition party.

2.       Federal Courts of Appeals Appointments. At the Court of Appeals level candidates are reviewed in more detail. It is not unusual for those positions to be a stepping-stone to the Supreme Court. 

3.       Supreme Court Appointments. Nominations to the Supreme Court are carefully considered by the president. Acetate CT-3 demonstrates the significant differences in the demographic attribute of federal judges during four presidential administrations. Only two members of the Court have been African American and only two have been female. 

            B.      Partisanship and Judicial Appointments. In selecting a candidate the president may take into account many factors but two factors in particular stand

                      out:  the party affiliation of the candidate and the political philosophy of the individual.

            C.     The Senate’s Role. If the president nominates a candidate that is considered to be significantly to the left or right of the political spectrum, the candidate

                     may face opposition in the Senate. The impact of ideology also can be witnessed in the confirmation process. Since the presidency of Andrew Jackson, the

                     Senate has often failed to confirm presidential judicial appointments. During the Reagan administration, there was acrimonious debate over the

                    nomination of Robert Bork, whom the Senate rejected. During the George H. W. Bush administration, the nomination of Clarence Thomas was also

                    contentious, though Thomas was confirmed. President Clinton succeeded in getting both of his Supreme Court nominees, Ruth Bader Ginsburg and

                    Stephen Breyer confirmed.

 

VI.    Policymaking and the Courts

A reason for the vigor of the debates concerning judicial appointments is that the courts play a large role in determining policy throughout the country. One of the important ways for the judiciary to influence policy is through judicial review.

A.      Judicial Review. The power of the courts to determine whether a law or action by the other branches of government is constitutional is known as the power of judicial review. Supreme Court decisions in this regard are important because of the Court’s national jurisdiction. When a state law is ruled unconstitutional by the Supreme Court, it is then likely that other states’ laws will be held invalid as well.

B.       Judicial Activism and Judicial Restraint. To some extent the ability of the courts to act as policymakers depends on the activism or the restraint of the courts. If the Court assumes an activist role, it will take a broad view of the Constitution and use its powers to check the activities of governmental bodies when those bodies can be said to exceed their authority. If the Court assumes the role of judicial restraint, the Court will use the power of judicial review sparingly and limit judicial action in the political process. Since the end of Word War II the Court has been much more activist than before, especially on social issues such as civil rights. Activism is sometimes associated with political liberalism and restraint with conservatism, but the reverse is also possible.

C.      Strict versus Broad Construction. Key concepts: Strict construction, a judicial philosophy that looks to the “letter of the law” when interpreting the Constitution or a particular statute. Broad construction, a judicial philosophy that looks to the context and purpose of a law when making an interpretation. As with activism and restraint, broad construction may be associated with liberalism and narrow construction with conservatism. Again, though, these associations can be reversed.

D.      Ideology and the Rehnquist Court. The ideology of the justices determines the kinds of policy that the courts will make. Under the leadership of Chief Justice Rehnquist, the Court has been considered conservative, reflecting the philosophical views of the Republican presidents who selected most of the justices on the Court. Today, three of the justices (William Rehnquist, Antonin Scalia, and Clarence Thomas) are notably conservative. Four (John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer) hold liberal-to-moderate views. Two moderate-to-conservative justices, Sandra Day O’Connor and Anthony Kennedy, now occupy the middle of the Court. These two usually provide the “swing votes” on the Court.

1.       Federalism. The Rehnquist Court has attempted, to a limited degree, to restore states’ rights. Notably, the Court has limited the rights of citizens to sue their own states in federal courts.

2.       Civil Rights. The Court has been relatively cautious on civil rights issues, for example ruling that affirmative action is acceptable but within strict limits. One striking ruling in support of the civil rights of gay men and lesbians, however, was the abolition of anti-sodomy laws in 2003 through Lawrence v. Texas.

 

VII.  What Checks Our Courts?

Although the founding fathers considered the judiciary the branch with the least power, the actual power the federal courts can exert on society is quite great. What protection do the people have from the federal judiciary?

A.      Executive Checks. The president has several important methods of checking the judiciary. The president has the power to enforce judicial decisions through the use of the bureaucracy. In rare cases a president may refuse to implement a decision. More frequently, presidents use their power of appointment to check the judiciary. When vacancies occur within the judiciary the president can select judges who are more inclined to view the laws and Constitution from the perspective of the president. As indicated earlier. this power can assist the president in accomplishing goals long after he is no longer in office.

B.       Legislative Checks.

1.       Congress can propose a Constitutional amendment if it opposes the Supreme Court’s interpretation of the Constitution.

2.       When the courts make a ruling on a particular law, the legislature can revise the law if the interpretation by a federal court is not what the legislature intended.

C.      Public Opinion. Although the public does not have a direct influence on the selection of members of the judiciary, it does have an indirect influence through the selection of the president. Also, the Court does not operate in a vacuum and is reluctant to make rulings that might be very unpopular.

D.      Judicial Traditions and Doctrines. To a certain extent, the courts also check themselves.

1.       Hypothetical and Political Questions. The tradition of refusing to adjudicate hypothetical questions serves as one check. The doctrine that many issues (political questions) ought to be resolved by the elected branches of government is also a restraint.

2.       The Impact of the Lower Courts. If lower courts dislike a Supreme Court ruling, they cannot overturn it but can seek to apply it in as limited a fashion as possible.

 

VIII.       Features

A.      At Issue: Is the Process of Confirming Judicial Nominees Too Political?

Political disputes over judicial confirmations have become more common since the rejection of Republican Robert Bork’s nomination to the Supreme Court in 1987. Democrat Bill Clinton had great difficulty in getting his nominations confirmed and Republican George W. Bush has had problems as well.