THE JUDICIAL BRANCH:
STRUCTURE AND PROCESS
Topic #12
Judicial Review as a “Byproduct”
• Because it is exercised by ordinary courts (rather than by a special
“constitutional court”), judicial review in the U.S. does not operate in
the following fashion:
– Congress passes a law,
– the President signs the law,
– the Supreme Court reviews the law [in the manner of a “constitutional
court”], and then (if it is judged to be constitutional)
– the law goes into effect.
• Rather, as was illustrated by the case of Marbury v. Madison, it
operates in the following fashion:
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–
–
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Congress passes a law (e.g., the Judiciary Act),
the President signs the law, and
the law goes into effect.
The law may subsequently produce a legal case (Party A v. Party B)
and, in deciding the case (e.g., whether someone can be convicted for
violating the law), courts may have to decide whether the law is
constitutional.
• So U.S. courts exercise judicial review as a byproduct of deciding
concrete cases that come before them.
– However, it is also true that concrete cases may be contrived
deliberately to test the constitutionality of laws.
The Federal Compromise Produces
a Dual Court System
The Federal Court System
• Not only the size but also the structure of the U.S. court
system (particularly at its intermediate level) has
changed since the original Judiciary Act of 1789,
– as a result of many amendments to the Judiciary Act.
• The size of the Supreme Court has been fixed at nine
since 1869.
• The old Circuit Courts have been replaced by U.S.
Courts of Appeal
– However, the geographical jurisdictions of these intermediate
Courts of Appeal are still referred to as “circuits.”
– In each circuit, appeals Court judges normally sit in panels of
three.
• Larger states now contain several U.S. District Courts,
and
– each District Court has several judges.
– A U.S. Attorney is assigned to each Federal District Court.
The Federal Court System (cont.)
• The allocation of original vs. appellate jurisdiction in
today’s federal courts:
• District courts: 100% original
• Courts of Appeal: 100% appellate
• Supreme Court: ~ 99.9% appellate, ~0.1% original
• State court cases that raise “federal questions” they may
be appealed to the U.S. Supreme Court.
• As previously noted, state court systems typically follow
the same three-tiered structure as the federal system.
The Dual Court System (Resulting from the
Federal Compromise)
Types and Names of Cases
• Original criminal cases (prosecution vs. defendant):
– United States v. John Doe
– The People [State, Commonwealth, etc.] v. John Doe
• Original civil cases (plaintiff vs. defendant)
– Marbury v. Madison
– Maryland v. McCulloch
– Plaintiffs and defendants may be either governments or private
parties
• Cases appealed to higher court (appellant vs. other
party):
– loser v. winner at lower level
– John Doe v. United States (or state)
– McCulloch v. Maryland (Topic #17)
Appealing Cases to Higher Courts
• While the SC is primarily an appeals court, it can review
only a tiny fraction of the cases that it might review.
• Most cases are resolved at the trial (district) court level.
– Most criminal cases are resolved by plea bargain, so there is no
trial and no appeal.
• Most criminal defendants who go to trial are convicted, but often the
case is pretty open-and-shut, so there is little basis for appeal.
• If there is a trial and the defendant is found to be not guilty, the
prosecution cannot appeal.
– Many civil cases are settled out-of-court before trial.
• But if a civil case goes to trial, the loosing party can usually appeal
and often does so.
• Appeals from Federal District Courts to the Court of
Appeals are fairly automatic if requested.
• But appeals from the (federal) Courts of Appeal or from
state Supreme Courts to the SC are rarely automatic.
Two Routes to Review by the SC
• Prior to 1925, many cases could be appealed to the SC,
whose caseload therefore became overwhelming.
• As a result of an amendment to the Judiciary Act in
1925, only a few types of cases now qualify for a (more
or less) automatic review by the SC.
– e.g., when a lower court has declared a federal law to be
unconstitutional.
– Such cases constitute only about 10% of the SC case load (~10
cases a year).
• In other cases, the losing party may petition the SC for a
writ of certiorari, by explaining why the SC should review
the case:
– If the petition is granted, the SC issues the writ to the lower
court, ordering it to send up the case material for review.
– About 7,500 such petitions are filed with the SC each year, but
the SC grants petitions in only about 100 or fewer cases a year.
– Nevertheless, such cases make up about 90% of the SC’s case
load.
The Writ of Certiorari (cont.)
• The SC can use the petition for writ certiorari procedure
to “screen” cases for its consideration and thereby it
can largely control its own agenda, i.e.,
– the SC can pick and choose the cases it will take for review.
• The SC uses the “rule of four” (4/9 rule) in deciding
whether grant “cert.”
– The SC court is especially likely to grant cert
• if the case raises important and/or unresolved legal issues,
or
• if the lower court(s) have ruled in a way that appears to be
contrary to precedent and prior SC decisions, or
• if lower courts are following a SC precedent that members
of the SC now want to reconsider and perhaps overrule.
• Justices who vote to grant cert
– are rather likely to support the appellant and reverse the lower
court decision if SC takes the case, but
– there is no guarantee they will so decide.
Supreme Court Decision Making
• Both parties submit written briefs, stating the legal
arguments that support their positions.
– Amicus curiae (“friend of the court”) briefs may also be submitted
(by the U.S., advocacy groups, etc.).
• Oral argument is scheduled.
– Time is very limited, usually no more than one hour for each
side.
• And justices commonly interrupt the lawyers with questions.
– If the United States is a party in the case, it is usually
represented by the Solicitor-General.
– Oral argument is open to the public and the press.
• But it is not open to radio or television (not even C-SPAN).
• Complete transcripts of oral argument are made available and
recently tape recordings have also been released.
SC Decision Making: The Conference
• Following oral argument, SC members discuss a case
and then vote in the SC Conference.
– Only the justices themselves attend the Conference (no clerks,
etc.)
– Conference proceedings are kept totally secret.
– The conference process remained a mystery until about 40
years ago.
• Justice William Brennan, “How the SC Arrives at Decisions,”
NY Times Magazine
• In its appellate role, SC must either affirm or reverse the
lower court decision.
• The Chief Justice first presents his views and tentative
conclusions, followed by the Associate Justices in order
of seniority.
SC Decision Making: The Conference (cont.)
• Justices then vote in reverse seniority, with the Chief
Justice casting the final vote.
– SC decisions are governed by simple majority rule (5/9).
– In the event of a tie (resulting from a vacancy, illness, or
recusal), the lower court decision is affirmed.
• With a few exceptions (per curium decisions), a SC
decision is accompanied by a SC opinion justifying the
decision is written and signed by one or more of the
justices (e.g., Marbury v. Madison).
– If the Chief votes with the majority, the Chief writes the opinion or
assigns the task to some other justice in the majority.
– If the Chief votes with the minority, the most senior Associate
Justice in the majority writes the opinion or assigns the task to
some other justice in the majority.
• The Chief, who votes last in an open “roll call,” may have a strategic
incentive to vote with the majority (if the vote is other than 4-4), so
as to control the writing of the opinion.
SC Decision Making: The Conference (cont.)
• The draft opinion is circulated among the justices for
comments, criticisms, and suggestions (especially from
the justices in the majority).
– As a result, the draft is usually revised and sometimes
completely rewritten.
– Occasionally Justices may switch their votes, possibly reversing
the previous tentative decision and requiring a new written
opinion.
• When the SC’s opinion is largely complete, justices in
the majority and minority may decide to write concurring
or dissenting opinions, respectively.
– Such opinions do not have the force of law and often are written
in a less legalistic style than the opinion of the Court.
• The SC then announces its decision and releases its
opinions (usually for a number of cases simultaneously).