FEDERAL COURT SYSTEM
On the Supreme Court building is the inscription “Equal Justice Under Law”
The Supreme Court, like the Bureaucracy, gets to take the general, sometimes vague
language of Federal laws and the US Constitution, and apply it in specific cases and
situations
But even more so than the Bureaucracy, Courts are expected to be unbiased and
impartial---this is the reason for the lifetime tenure, with impeachment being the only
legal method of removal
Differences between Courts and other Branches of Govt.
1.) More respect, deference, secrecy, job security
2.) Reactive rather than proactive
3.) Deal with specific situations, apply general principles—but sometimes courts
go well beyond the questions they are asked to resolve
4.) Detailed justifications for decisions, that are followed by others in
implementing decisions
5.) Constrained by previous court decisions in similar cases
Note the way that judges, particularly justices of the US Supreme Court, are shown
respect in ways that other politicians are not
Supreme Court justices rarely do as many interviews and public appearances as members
of Congress or Cabinet members---the process by which they make decisions is
extremely private and behind closed doors
Judges in general are shown more respect and honor than other public officials: think
about the fact that everyone must stand when a judge enters the room, that judges wear
priestly robes (and in England they still wear those ridiculous wigs) and that if you
disrespect a judge you can be severely penalized (including jail time) for “contempt of
court”
Courts are react
The Court system, like the rest of the government, is divided into Federal and State levels
Although each state’s court system is different (some states have specialized courts for
family law and drug law, others don’t), most states have three levels of court: trial courts
(where most cases originate), appellate courts that hear appeals from the trial courts, and
a state supreme court
Trial courts are the ones you see on TV; usually have juries, witnesses, and opposing
attorneys making arguments before a judge
Appellate courts are much less publicized; their primary job is to correct possible errors
in the application or interpretation of law that were made at the trial court level
An appellate court is supposed to take the facts as given; in other words, it is expected to
respect the trial court’s findings about what actually happened, who did what to whom
The appellate court is only supposed to review questions of law—that means there will
usually be no witnesses and less emphasis on oral arguments, more emphasis on written
briefs
I know a lawyer in town who specializes in appellate cases; she does most of her work in
her office, and rarely goes into a courtroom or addresses a judge personally
A state supreme court is the FINAL authority on state law and state constitution
And if there’s a FEDERAL law or part of the FEDERAL Constitution involved in a state
case, it will usually have to be decided upon by the state supreme court before it can go to
the US Supreme Court
At the Federal level, we have the following:
1.) Federal District Courts: there are a little less than 100 of these, which are the
Federal trial courts
Any case involving a violation of Federal law begins in a Federal district court
Tuscaloosa has one; it takes Federal cases from all over West Alabama (there’s a
separate district court in Birmingham)
2.) Federal Circuit Court of Appeals: there are 13 of these, in different regions
across the country
They are the first place that appeals from the District Courts go
If you are convicted of a Federal crime, you have an automatic right of appeal to a
Federal Circuit Court of Appeals---we are in the 11th Circuit, along with Georgia and
Florida
3.) The US Supreme Court: is the final authority on both state and Federal cases
In the overwhelming majority of cases, there is no automatic right of appeal to the US
Supreme Court---since the 1920s, the Supreme Court has had almost complete control
over its caseload
In 2001, the Supreme Court received over 5300 requests for review, but only decided
86 cases
When the Supreme Court decides to hear a case appealed from a state supreme court
or from a US Circuit Court of Appeals, it issues a writ of certiorari: this is a legal
order asking that the records of the case from the lower court be sent up to them
Writ of certiorari is called “cert” for short
So someone who is trying to appeal a case to the US Supreme Court is said to be
“petitioning for cert” (remember, Clarence Gideon, the Florida prisoner who insisted
that he had a right to legal representation, hand-wrote his own petititon for cert
When the Supreme Court agrees to hear a case, it is said to be “granting cert”
Note: if a case involves only state law and the state constitution, the Supreme Court
will not agree to hear it, no matter how important or high-profile it is, and no matter
how influential or highly paid the lawyers are
For example, Scott Peterson has no automatic right of appeal to the US Supreme
Court; the only way the US Supreme Court might hear his appeal is he’s arguing his
arrest or conviction somehow involved a violation of his rights under the US
Constitution or Federal law
In other words, a case must involve a “Federal question” if it is going to make the
jump from the state court system to the US Supreme Court---what might be some
Federal questions that Peterson’s lawyers might want to raise?
--whether the California death penalty is cruel and/or unusual
--whether there was evidence seized from his house in violation of the 4th
Amendment
--whether he was fully informed of his rights, or forced into testifying against
himself, in violation of the 5th Amendment
So there are two tracks to the US Supreme Court, but the state court track is only
available if the case involves issues of Federal law and the US Constitution, AND if
the plaintiff has exhausted all of his or her remedies at the state level
Let’s pause briefly to make the distinction between a civil case and a criminal case
A civil case is essentially a private legal dispute between two parties---both the
plaintiff (person or company bringing the suit) and the defendant (person or company
being sued) are private parties who violated no actual law, but may have violated a
contract or legal agreement among themselves
A criminal case is a case of “the people against the defendant”---the person bringing
the suit is the state or Federal government
Basically a crime is an act that, even though it may only harm one or two individuals,
is considered so bad and so needful of prevention and pre-emption that it is
considered a harm to the entire society
So the entire society, in a sense, is bringing suit against the perpetrator
A criminal case involves some specific violation of a criminal code---each state, and
the Federal government, has a pretty comperehensive criminal code outlining in detail
what the prohibited acts are (and often what the permissible punishments will be)
In major criminal cases, an indictment is usually required before the case can be
brought to court
In other words, the government has to make its case to a Grand Jury before it can
formally charge the defendant; the Grand Jury does not decide guilt or innocence, it
simply decides whether there is sufficient evidence to formally charge the defendant
with a crime
APPOINTMENT OF FEDERAL JUDGES
All Federal judgeships are for life, and impeachment is pretty much the only (and rarely
used) method of removal
Note that this means that it is somewhat unpredictable when Federal judgeships are going
to come open; it’s not like every new President can come in and clean house and appoint
a whole new slate of Federal judges
This may be why the political fights over Federal judgeships are getting more an more
intense---if a Republican president appoints overwhelmingly Republicans, particularly
relatively young ones, the Republicans can continue to dominate the judiciary even if the
elected branches of government go back to being Democratic!
At the level of Federal district court judges, there is a tradition called “senatorial
courtesy”: if there is a Senator of the same party as the president in the state where the
judicial vacancy takes place, he or she has a veto power over the choice and is carefully
consulted about who the nominee should be
Since Alabama has two Republican Senators, Richard Shelby and Jeff Sessions, that
means they both would have a considerable say over who got appointed to any Alabama
vacancy (and since they’re both lawyers and Jeff Sessions is a former Attorney General,
that gives them even more clout)
It used to be that the Senate would confirm lower-level Federal court appointees without
too much trouble
But as the Supreme Court justices live longer and stay on the Court longer, and Supreme
Court vacancies get rarer and rarer, both Democrats and Republicans have begun to vent
their partisan frustrations, delaying and sometimes forcing the withdrawal of Federal
District Court and Circuit Court of Appeals nominations
Republicans in the Senate delayed action on many of Clinton’s second-term appointees,
claiming that they were dangerously liberal, Democrats have done the same with many of
W’s appointees (including former Alabama Attorney General Bill Pryor-----finally,
President Bush used his little-known power to make ‘recess appointments’ without
Senate confirmation to put Pryor temporarily on the Federal bench)
In recent years, appointments to the Supreme Court have met with a great deal of
Senatorial scrutiny (remember, the House does not get a vote on any appointees)
A string of relatively tough Supreme Court confirmation battles stretching from the late
1960s through the 1990s began with the rejection of Lyndon Johnson’s choice for Chief
Justice after Earl Warren retired; Abe Fortas was rejected (even though he was already
on the Court; when the Chief Justice dies or resigns, the President has the option of
replacing him or her with another member of the Court, or with a brand new person who
would come in as Chief Justice) because he was considered too close to the President
Some thought that the real reason was Fortas’ liberal views, and there were some shady
business dealings
It was also the last year of Johnson’s term, so Republicans thought if they stalled long
enough they might be able to elect a Republican president.
Nixon had two of his nominees rejected for allegations of incompetence, racism, and/or
corruption (one of his appointees had been overturned by higher courts more often than
any other judge)
In 1987, Reagan attempted to appoint a brilliant but highly conservative legal scholar,
Robert Bork, to the Supreme Court (this was Reagan’s third appointment); for the first
time, the Senate rejected a presidential nominee not because of corruption or credentials
(everyone agreed that in terms of knowledge and experience, Bork was one of the best
appointees in decades) but purely because of ideology
Ever since then, ideological extremism has been considered a legitimate excuse for
rejecting an otherwise qualified nominee
When liberal justice Thurgood Marshall retired (Marshall had been the NAACP lawyer
who had argued and won the Brown v. Board case, he was replaced by a very
conservative African-American judge Clarence Thomas
Although Democrats did not like Thomas’ views on abortion and affirmative action, they
found it awkward to oppose only the second African-American ever nominated
However, when allegations arose that Thomas had sexually harassed a former employee,
the confirmation hearings were opened and the nation was treated to a week of live “he
said, she said” drama involving both sex and race----Thomas was confirmed by a very
narrow margin, and sits on the court to this day
ROLES OF THE US SUPREME COURT---in being the Supreme and final interpreter of
Federal law, the Supreme Court gets the following types of recurring issues:
1.) Act as referee between state and Federal governments---remember that the John
Marshall Court was key in the assertion of Federal superiority over state and local
governments, although in recent years the pendulum has begun to swing the other
way
2.) Act as referee between the Federal executive and legislative and judicial
branches---although the Supreme Court has avoided declaring any presidentially
initiated wars as unconstitutional, it has struck down abuses of both executive and
legislative power
US v. Nixon (1974) -- dealt with the question of executive privilege
For example, during the Korean War, there was the threat of a shutdown in the steel
industry due to a strike----to keep vital steel production up, President Truman ordered the
takeover of the steel mills by the Federal government
The Supreme Court nullified that executive order, saying that it violated the will of
Congress and was an overextension of presidential power
LINE ITEM VETO
Clinton v. New York (1998)
‘
3.) Act as referee between governments of all types and individual civil liberties:
particulary when it comes to rights of the accused, discrimination against
minorities, and government intervention into the economy
Whereas the pre-Civil War Marshall court was more concerned about defining
federalism, for the past 100 years the Court has mainly concerned itself with trying to
draw the line between public power and private power, on everything from
environmental regulation, to homosexual activity between consenting adults, to the
Feds’ ability to control firearms on school grounds, to prayer in schools
The most controversial and dramatic exercise of the Federal Courts’ power comes
when they strike down laws passed by Congress and signed by the President as
unconstitutional---this is also known as the power of judicial review
Even though we are accustomed to learning about judicial review as being one of the
essential elements of checks and balances---it is the judiciary’s primary check on the
legislative and executive branch---students are surprised to learn that it is not
actually written in the Constitution, and some dispute whether the Founders meant
for the Supreme Court to have this power
Most of the Founders would have agreed that the Supreme Court had the right to
strike down state laws, because of the supremacy clause
Because of this, it is worth looking in some detail into how and why the Supreme
Court came to enjoy this power
The case was Marbury vs. Madison (decided in 1803, fifteen years or so after the
Constitutiton was ratified); here was the situation: the election of 1800 marked the
first transition in power between two political parties in the Presidency
Although GW was officially nonpartisan, he leaned toward the Federalist views; and
his successor, John Adams, was certainly and openly a Federalist
The Federalists were defeated in the Presidential election of 1800
Remember, back then there was no civil service, so the President was responsible for
filling nearly all administrative positions----right before it was time to leave office,
Adams made a whole bunch of “midnight appointments”; hurriedly filling vacancies
in the bureaucracy so as to pack the Federal government with as many Federalists as
possible before the other party, the Democratic-Republicans, took over
Although Adams had made the appointments, it was the job of the new DemocraticRepublican Secretary of State, James Madison, to finish the job by giving these newly
hired employees their “commissions” that would allow them to begin work
Needless to say, Madison was less than enthusiastic about giving all these political
opponents of his their jobs, and he dragged his feet in doing so
Impatient to get his commission as a US Marshal, Mr. Marbury sued the government
(personified by Secretary of State Madison), and tried to get the Supreme Court to
order Madison to do his duty
(The Supreme Court had been given the power to issue such an order---called a writ
of mandamus---by the Judiciary Act of 1789, passed by Congress and signed by
President Washington)
Now, Chief Justice Marshall was in a difficult spot;
If he did as Marbury requested and commanded Madison to give Marbury his job
(this would have been Marshall’s preference, since Marshall was a Federalist), what if
Madison had refused? The Supreme Court was still very new and weak, and had no
power to enforce its own decisions (then, as now, the Supreme Court has neither the
purse nor the sword)
If he did as Madison preferred and refused to order Madison to issue the commission,
he was basically telling the new administration it was OK to ignore their legal
obligations (and the D-Rs would have scored a political victory)
Neither alternative seemed very appealing---but Marshall seized upon a third
alternative: the Supreme Court boldly declared that the Judiciary Act of 1789 was
unconstitutional, that Congress had unconstitutionally added to the powers of the
Supreme Court in a way that the founders did not intend
So, the Supreme Court said that it believed that Madison should be forced to give
Marbury his job, but unfortunately the Court lacked the authority to force them since
the law giving them that power was constitutionally invalid
The Democratic-Republicans---Madison and his boss, the new President Jefferson,
were now the ones in the tough spot; they hated the idea that the Supreme Court had
the power to strike down Federal laws for being unconstitutional, but they liked the
idea that they did not have to give the Federalists all these jobs---so they did nothing
to challenge or question the Court’s decision
In the meantime, with a single decision the Supreem Court had made itself an equal
player with the Presidency and Congress
How often has the Supreme Court exercised this power? Not real often
Not a single Federal law was struck down following Marbury until the 1857 Dred Scott
decision, which struck down the Missouri Compromise and the Compromise of 1850
In recent years, the Supreme Court has been more aggressive at striking down Federal
laws they disagree with –
We mentioned the line-item veto
--Sup. Court has struck down campaign finance reforms designed to limit candidate
spending, as violations of the First Amendment
---Sup. Court struck down the Religious Freedom Restoration Act for violating the
Establishment Clause
----Sup. Court has struck down restrictions on internet porn
Some have described the Court as anti-majoritarian—the defender of unpopular
minorities against majorities
THE DECISIONMAKING PROCESS
The discuss list; the Supreme Court’s clerks prepare a list of the cases they think are
worthy of serious consideration by the Court, and these lists are distributed to all the
justices, who meet weekly to discuss which cases they want to hear
Before you think that this is giving the clerks an awful lot of power, keep in mind that the
clerks know the law pretty well (they know which lower court cases are very similar to
previous cases and which ones cover new territory; the Supreme Court sees its mission
as providing guidance to the lower Federal courts and the state Supreme Courts, so they
want to hear the cases where precedent is LEAST clear)
One type of case that the Court is especially going to want to hear is one where different
Federal circuit courts of appeal have made different rulings
For example, the California Circuit is known for having extremely liberal judges; that is
where the words “under God” in the Pledge of Allegiance were ruled unconstitutional,
but it is doubtful that cases in other parts of the country would get the same result
The Supreme Court sees itself as a referee in cases like this
Then, going down the discuss list, the nine justices vote on which cases they think the
Court should hear
It takes the votes of four judges---not a majority of the Court---to agree to hear a case
Generally speaking, if a Justice is satisfied with the decision that the lower court made,
he will refuse to take the case (because automatically, when the Supreme Court refuses to
hear a case, the decision of the next highest Court stands)
But occasionally, if he or she is REALLY enthusiastic about the decision that the lower
court made, and he feels that a majority of the Supreme Court agrees with him or her
about this, he might vote to hear the case anyway---he may feel that the decision carries
more weight with the Supreme Court’s weight behind it
Usually, if a Justice is unhappy with the lower court ruling, he or she will vote to hear the
case
However, if he is unhappy with the lower court ruling, but he feels that a majority of his
colleagues ARE happy with it, his worst outcome would be to have the Court hear the
case and vote to support the lower Court
So to avoid that, he may not vote for the Court to review the case
Let me put this in terms of a concrete example---suppose the Justices vote on whether or
not to hear the Terry Schiavo case
Suppose I disagree with the Federal judge who ruled that the feeding tube should not be
reinserted (I want the feeding tube put back in)
But, I believe that most of my colleagues on the Court do not feel the same way I do, they
feel she SHOULD be allowed to die
So my worst outcome would be that we vote to hear the case, and then the majority of the
Court rules that she should be allowed to die
So I should vote not to hear the case at all
She’s going to die either way, but if the Supreme Court makes a decision that she should
be allowed to die that carries more weight than just a Florida district court’s decision that
she should be allowed to die----it is more likely to set a precedent
The justices will discuss the case among themselves and vote
The vote can only have two outcomes----for the plaintiff (the party bringing the case) or
the respondent
The most junior justice votes first; the Chief often votes last
How do Supreme Court justices decide how to vote?
Despite their saying that they are not politicians, many of them do have strong ideologies
that guide their decisionmaking, just like congressmen and presidents do
There are only a couple of the current Supreme Court justices who are genuinely
unpredictable in their voting patterns
There is a conservative bloc of Roberts, Alito, Thomas, and Scalia
And a liberal bloc of Souter, Stevens, and Breyer, and Ginsberg
The “swing vote” would be Kennedy
Although no one is allowed to lobby the Supreme Court, interest groups are allowed to
have a voice
An interest group that is not directly involved in a case but has a strong opinion about it
can file something called an amicus curiae brief (friend of the Court brief)
Amicus brief presents legal arguments in favor of the interest group’s side---they used
not only to try to persuade justices not only how to vote on a case, but also whether or not
to TAKE the case to begin with
(Studies have shown that cases with lots of amicus curiae briefs ARE more likely to be
heard by the Supreme Court)
The Supreme Court’s function of providing PRECEDENT for lower courts to follow
requires it to publish detailed explanations of what it did, and did not, find, and
justifications for its decisions
And, like all courts, the Supreme Court tries to base its decisions on previous decisions
by the Court --- this provides order, continuity, and stability, which is a good thing to
have for a legal system (although it does mean that change takes a long time)
The term stare decisis is the legal term for the principle that the Supreme Court, and all
courts, must respect the decisions of past courts as much as possible
In no other branch of government is there such respect paid to decisions of the past---quite the opposite, sometimes, Presidents come in eager to do everything differently from
their predecessors
So people who are scared about the awesome power of courts----literally, life or death for
human beings, and the validity of laws passed by Congress and signed by the president--are reassured by the fact that the Supreme Court has so much respect for stare decisis
But there are cases where the Supreme Court, deliberately and knowingly, reverses the
trend of previous decisions----most dramatic example was Brown v. Board of Education
Anyway, the Supreme Court’s desire to explain its decisions, show how they are
consistent with precedent, and to set a clear precedent for other courts, leads it to write
lengthy “opinions” for nearly every decision it makes
If the Chief Justice is on the winning side in a particular case, he (someday she) will
decide who gets to write the “opinion of the court”---sometimes he appoints himself
IN the past, some Chief Justices have deliberately voted with the majority so that they
could determine how the opinion would be written
All of the justices who voted in the majority get to have input on the opinion; drafts are
circulated repeatedly until there is a single document that everyone’s happy with
But not everyone who votes with the majority is completely happy with even the final
draft---so sometimes justices who vote in the majority will write a “concurring opinion,”
an opinion that agrees with the general direction that the Court took, but which gives
different arguments or even disagrees with some of the majority’s arguments
Those justices who voted in the minority will usually work on a “dissenting opinion,”
sometimes just called a “dissent”
Now let’s be clear: the only opinion that lower courts are obligated to follow is the
majority opinion; that is what is called “the Opinion of the Court”
But legal observers are always interested in the concurring and dissenting opinions,
because it gives us a glimpse as to the debates going on within the Court
And sometimes, when the Court does change direction, it will cite arguments from a
previous dissenting opinion
For example, when the Court issued Brown v. Board of Education, it cited some of the
arguments that had been made in the dissenting opinion of those who voted against
Plessy vs. Ferguson sixty years later