CHAPTER 12 Federal Courts OUTLINE The Role of the Courts Settling Disputes Judicial Policymaking Political History of the Supreme Court The Federal Court System District Courts Courts of Appeal Supreme Court Power, Politics, and the Courts Conclusion: Policymaking and the Courts OUTLINE & SUMMARIES Case Study: Affirmative Action Under what conditions does termination from employment result from discrimination? In a case involving two women teachers, one white, the other black, both were considered equal. But the school board of Piscataway Township in New Jersey laid off the white teacher in order to diversify the faculty members of the business department; all the other members of the department were white: The white teacher, Sharon Taxman, sued the school board under the Civil Rights Act of 1964, claiming that she was terminated on the basis of race, which the law prohibits. The school board responded that its termination of Taxman was justified by the goal of having a diverse faculty. Ultimately, the lawsuit reached the United States Supreme Court, which agreed to hear the case on appeal. But it never got the chance. Under the advice of their attorneys and because of pressure from civil rights groups, the school board agreed to settle the case for significant monetary damages. The concern of the civil rights groups was that the case would serve as a vehicle for the Supreme Court to limit the use of affirmative action in the workplace. The Role of the Courts Resolving conflicts is the primary role of the courts in the U.S. political system. These conflicts involve disputes which occur between two opposing sides. The conflicts involve criminal law violations or civil law disputes.
Settling Disputes A criminal case is a legal dispute dealing with an alleged violation of a penal law (either felony or misdemeanor, depending on the severity of the offense). A civil case is conflict between two parties. These parties may be individuals, groups of people, business corporations, or government agencies. Judicial Policymaking The most important policymaking power of the courts stems from their authority to interpret and apply the Constitution and other laws. Although many important judicial decisions are made in the original trials, the most far-reaching applications often occur on appeal. As interpreters of the Constitution, judges and courts exercise the power of judicial review, which is the power of the judicial branch to declare unconstitutional the actions of the other two branches or their individual units. There is controversy, though, over the leeway that courts should have in exercising their rights of constitutional interpretation. Strict construction holds that the document should be interpreted narrowly. The opposing doctrine of loose construction holds that the Constitution can be interpreted broadly. Political History of the Supreme Court In its first decade, the Supreme Court was relatively unimportant. Since then, though, the nation s highest court has often been an active participant in many of the country s most significant public policy debates. After John Marshall was named chief justice, the Court s role in the policy process started to take shape. Under his active leadership, the Supreme Court claimed the power of judicial review (Marbury v. Madison, 1803) and also assumed the authority to review the decisions of state-level courts on questions involving federal laws (Martin v. Hunter s Lessee, 1816). Under Marshall s successor, Chief Justice Roger Taney (1836-1864), the Supreme Court moved away from support for a strong national government toward a states rights position. After the Civil War and Reconstruction, the Supreme Court turned its attention to the protection of property rights by reviewing government efforts to regulate business activity. While the Court protected the rights of business corporations, it ignored the civil rights of African Americans and other minorities. In establishing the separate-but-equal doctrine (Plessy v. Ferguson, 1896), the Supreme Court upheld and institutionalized racial segregation in the United States. In 1937, the Court changed course so that it would no longer always side with business in protecting against government regulation. Since that turning point, the agenda of the U.S. Supreme Court has dealt primarily with civil liberties and civil rights. The Federal Court System District Courts
At the trial court level, Congress has created 95 U.S. District Courts, with at least one court in every state. The original jurisdiction of the district courts includes both civil and criminal cases. Appointment of judges to lifetime terms is by the president, subject to majority confirmation by the U.S. Senate. Presidents and senators usually favor judges from their own political party. Jurisdiction Selection of Judges Courts of Appeal The U.S. Courts of Appeal are the primary intermediate-level appellate courts in the federal system. There are 13 courts of appeal, including one for each of the 11 judicial regions (circuits), one for the District of Columbia, and one nationwide circuit called the U.S. Court of Appeals for the Federal Circuit. The courts of appeal have only appellate jurisdiction, usually hearing cases in panels of three judges. The White House generally takes more care with nominations to the courts of appeal than it does with district court selections. Jurisdiction Selection of Judges Supreme Court The Supreme Court of the United States is the highest court in the country. The Constitution says nothing about the size of the Supreme Court, leaving the number of justices to the discretion of Congress. The current Court included a chief justice and eight associate justices. Jurisdiction The Court's appellate jurisdiction is set by law, and, through the years, Congress has made the Supreme Court of the United States the nation's highest appellate court for both the federal and state judicial systems. Congress can reduce the jurisdiction of the Supreme Court if it chooses. Selection of Judges Supreme Court justices come to the bench from a variety of backgrounds, but most are not strangers to politics. Nominations are thoroughly examined and receive considerably more publicity than lower federal court appointments. Deciding to Decide
The Supreme Court makes policy from the cases which the justices themselves choose to hear and decide. The legal requirement that the Supreme Court can only rule when formally presented a case gives interest groups an incentive to promote and finance test cases, which are lawsuits initiated to assess the consti-tutionality of an executive or legislative act. The Court decides which cases to hear based on the Rule of Four, which holds that the Court will hear a case if four of the nine justices agree to the review. Deciding the Case The Supreme Court usually deals with the cases it chooses to hear in one of two ways. It decides some cases without oral arguments, issuing a ruling accompanied by an unsigned written opinion called a per curiam opinion. For all other cases, full treatment is given to those cases that the Court accepts. Signed opinions are written for these remaining cases, with authority to designate assignments being the most important official tool that the chief justice has to influence the Court s policy direction. While one justice is assigned to prepare the majority opinion, other justices may be writing concurring or dissenting opinions. The Decision Eventually, the positions of the judges harden or coalesce, and the Supreme Court is ready to announce its decision. The announcement takes place in open court, and the final versions of the justices' opinions majority, concurring, and dissenting are published in the United States Reports [referred to as 'Supreme Court Reports on previous page]. The stronger the majority in a decision the greater the strength of the opinion and the less likely it will be overturned later. Implementation Political scientists Charles Johnson and Bradley Canon divide the judicial policymaking process into three stages. First, higher courts, especially the U. S. Supreme Court, develop policies. Second, lower courts interpret higher-court rulings. The third stage is the implementation of court decisions by relevant government agencies and private parties. Impact Supreme Court decisions have their greatest impact when the Court issues a clear decision in a well-publicized case and its position enjoys strong support from other branches and units of government, interest groups, and public opinion. Power, Politics, and the Courts How much influence do federal courts have in the policymaking process? How responsive are they to public concerns? Political scientists who study the judicial branch identify a number of restrictions on the federal courts. Both the Constitution and the law check judicial power. If Congress and the president believe that judicial rulings are wrong, they can undo the Court's work by changing the law
or the Constitution. Because courts cannot enforce their own rulings, they must depend on the cooperation and compliance of other units of government and private parties to implement their decisions. Conclusion: The Courts and Public Policy TEACHING SUGGESTIONS 1. Bring to class a recent volume of Supreme Court Reports to acquaint students with the format of Supreme Court decisions. You may wish to show them a decision with which they are familiar, such as Roe v. Wade. 2. Students frequently confuse the federal and state court systems. You may find it helpful to diagram your state s court system in addition to showing students a diagram of the federal system. You can explain the sorts of cases that are dealt with by courts in the different systems. 3. The Supreme Court based its decision in Roe v. Wade on a constitutional right of privacy. Ask students to identify the provision(s) in the Bill of Rights in which a right to privacy is contained. (Insightful students will note that although the Constitution does not explicitly mention a right to privacy, certain provisions imply that the framers valued privacy. These provisions include the protection against being forced to quarter troops in one s home and the protection against unreasonable searches and seizures.) This exercise is a good introduction to a broader discussion about the role of the Supreme Court as interpreter of the Constitution. 4. The ABA Journal previews legal disputes pending before the Supreme Court. Check recent issues to find descriptions of cases before the Court that raise issues about which students may have some interest. Ask the students to predict the Court s ruling on the case based on their knowledge of the political inclinations of the justices. With a little luck, the Court will announce its ruling before the semester ends and you can compare the prediction of the class with the actual vote on the Court. 5. Identify for your students the toughest concepts they will have to master in this chapter. I have found the following to be some of the toughest for students who are new to the study of politics and government: When the Supreme Court makes a decision to actually hear the appeal of a case from a lower court we say that the case has been granted certiorari (cert). Certiorari indicates the relative importance of a case to the U.S. Supreme Court. For the Supreme Court to grant certiorari means that a case heard by a lower court and appealed to the Supreme Court will actually be considered by the nation s top judicial body. The decision process by which the Supreme Court determines which cases to consider on appeal (culminating in the granting of certiorari) is called the Rule of Four. This means that the Court will hear a case if four of the nine justices agree to the review of an appealed case. It is important to
note, though, that the four (or more) justices will not necessarily be in agreement when the case is eventually decided. Their reasons for agreeing to the review and why they consider the issues important may be totally different. In a criminal case, the individual (defendant) has allegedly violated a rule of the government, i.e., the person is charged with committing a crime. A crime is a nonaccidental action that violates criminal law. Unless some specific law is violated, no crime can occur, regardless of how unfair or harmful somebody s actions are. Once charged with a crime, the defendant is entitled to constitutionally guaranteed due process protections. One of the major roles that judges and courts play in our judicial system is interpretation of the U.S. Constitution. Judicial review is the power of the courts to decide whether state and federal laws or executive actions should be declared null and void because they conflict with the Constitution. In our hierarchical system of laws, the U.S. Constitution is the supreme law of the land and, as such, supersedes and overrides lower forms of law. This power to declare lesser laws unconstitutional can only be used when there is a legal conflict (involving opposing rights, laws, or powers) which has been brought to the Court by other parties for resolution. Judicial review has become an important tool in the system of checks and balances that exists in the three branches of government (legislative, executive, and judicial). A majority opinion is the official written statement of the Supreme Court that explains and justifies its ruling and serves as a guideline for lower courts when similar legal issues arise in the future. A justice in the voting majority is assigned to write this opinion which explains their decision. If the chief justice is in the majority, the chief justice decides who will write the majority opinion, maybe even designating himself. Otherwise, the senior associate justice (voting with the majority) writes the opinion. The other members of the majority make suggestions to the writer of the opinion. Negotiation, haggling, and compromise are necessary in order to achieve agreement. Since the majority opinion guides the lower courts and affects future court cases, its content is very important. A precedent is a court ruling that sets a basis for deciding similar cases in the future. Consequently, precedent serves as a very powerful determinant of judicial decisions. Precedent means that past decisions in similar cases should serve as a guide for judges in making their current decisions. This reliance on precedent is not, however, absolute. Precedents can become outdated or irrelevant, and conflicts among precedents may require the establishment of new guidelines. A test case is a lawsuit or other court action that is initiated to assess the constitutionality of a legislative or executive act. It is pursued to determine how the courts will interpret a law or other government action. Since most courts (including all federal courts) will deal only with actual cases, any groups or individuals who want to know how the courts will respond must find a case that involves the relevant issues and laws. For example, if Congress passes a law which you believe is unconstitutional and you hope to get
a court ruling to that effect, you have to locate someone who has allegedly violated this law (or deliberately violate it yourself) and then ensure that this violation is brought to trial. Test cases are frequently sponsored by interest groups that have a stake in the issues. When using a court proceeding (that is already in progress) as a test case, amicus curiae briefs may be filed. Amicus curiae is a Latin legal term meaning friend of the court, and an amicus curiae brief is a set of arguments or materials given to the court by individuals or groups not directly involved in a case, but who do have a strong interest in the outcome. The NAACP, Martin Luther King, Jr., and other civil rights groups made effective use of test cases in abolishing segregation in the South and getting other laws of discrimination overturned by the courts. 6. Coaching Tips: Encourage students to rent movies that deal with constitutional issues. There are both comedies and dramas that depict the court system in response to these issues. Ask students which freedoms they would give up and why. LEARNING SUGGESTIONS 1. Take care to ensure that students are able to distinguish between the federal courts and state courts. Present them with examples of disputes and ask whether each case would be heard in federal or state court. 2. It might be helpful to invite a prosecuting attorney or a defense lawyer to class to discuss judicial procedures. It seems students always have many specific questions about the law and the courts. 3. I believe that it is important to emphasize the political nature of judicial decisions. It might be useful to go over a number of important judicial rulings and then ask your students to identify the political winners and losers in each case. 4. Ask students to use a recent edition of Who s Who or some other source of biographical information to prepare short reports on the personal backgrounds of each of the members of the Supreme Court, assigning different students the names of different justices. Once the reports are finished, the entire class can discuss what characteristics the justices have in common. 5. Ask students to check the local telephone book (government pages) and note the different types of courts (local, state, and federal) listed. ASSESSMENT SUGGESTIONS
Discussion Questions 1. In what way does the election of a president affect the judicial branch of government? 2. What is the difference between criminal and civil cases? 3. What is the difference between felony and misdemeanor offenses? 4. What types of law are used in American courts? 5. What sorts of disputes are settled in federal courts? What sorts of disputes are handled by state courts? 6. What is the difference between a trial and an appeal? 7. If most legal disputes aren t settled by trials, how are they settled? 8. Do courts make policy? Explain. 9. What is the difference between strict and loose construction? 10. What role has the Supreme Court played in the nation s policymaking process throughout its history? (Discuss the role of the Court during different historical periods.) 11. What is the significance of the following cases: Marbury v. Madison, Martin v. Hunter's Lessee, Dartmouth College, McCulloch v. Maryland, Gibbons v. Ogden, Dred Scott v. Sanford, Plessy v. Ferguson, Brown v. Board of Education of Topeka, Mapp v. Ohio, Miranda v. Arizona, Swann v. Charlotte-Mecklenburg Board of Education, Roe v. Wade, City of Richmond v. J. A. Croson Co., Shaw v. Reno, and Bush v. Gore 12. What is the jurisdiction of district courts? 13. How are district court judges chosen? 14. What is the jurisdiction of the courts of appeal? 15. How are appeals court judges selected? 16. How many justices serve on the Supreme Court? 17. What is the jurisdiction of the Supreme Court? 18. On what basis does the president select justices for the Supreme Court?
19. What factors influence the likelihood that the Senate will confirm a Supreme Court nominee? 20. Do the backgrounds of justices affect their behavior on the bench? 21. What factors determine which cases the Supreme Court will choose to decide? 22. What procedures does the Court follow in deciding a case? 23. What factors influence the strength of a Supreme Court decision? 24. In what types of cases do Supreme Court decisions have their greatest impact? 25. How much influence do federal courts have in the policymaking process? True/False Questions 1. Misdemeanors are less serious criminal offenses than felonies. 2. The concept of certiorari is that judges do what is fair regardless of the law and regardless of precedent. 3. Most legal disputes are handled by state courts rather than the federal court system. 4. Under the leadership of Chief Justice Earl Warren, the Supreme Court adopted liberal policy positions on a number of civil-liberties and civil-rights issues. 5. Presidents generally appoint individuals to the federal judiciary who share their political party affiliation. 6. The Constitution sets the size of the Supreme Court at one chief justice and eight associate justices. 7. With good behavior, federal judges may serve for life. 8. Under the rules of procedure of the Supreme Court, only the actual litigants in a case may submit briefs for the Court s consideration. 9. A justice who disagrees with the decision of the Supreme Court may write a concurring opinion. 10. The Supreme Court must depend on other branches of government to enforce its rulings.
Multiple Choice Questions 1. Which of the following is an example of a criminal case? a) A man who was injured in an automobile accident files suit against the driver of the other vehicle to pay medical bills. b) A woman sues her former husband to force him to pay child support. c) Family members go to court to determine the distribution of a deceased relative s estate. d) None of the above. 2. Which of the following is an example of a misdemeanor? a) A homeowner sues a building contractor over a faulty roof repair job. b) A robber shoots and kills a convenience store clerk. c) A student receives a ticket for parking illegally. d) A man goes to court to win the custody of his children from his former wife. 3. An individual who is accused of murder would be charged with which of the following types of offenses? a) a felony b) a misdemeanor c) a tort d) a probate case 4. Which of the following is an example of a civil case? a) theft b) burglary c) robbery d) none of the above 5. Which of the following forms of law is written by a legislative body, such as Congress? a) common law b) statutory law c) equity d) administrative law 6. Which form of law takes precedence over all other forms of law? a) common law b) statutory law c) administrative law d) constitutional law 7. Which of the following legal disputes would most likely be tried in a federal court?
a) A person is charged with burglarizing a home. b) A person is charged with using the U.S. mail to commit fraud. c) A person is charged with robbing a grocery store. d) A person is charged with murder. 8. Which of the following developments could not occur during a trial? a) the admission of some documents as evidence b) testimony by a witness c) a jury deliberating on a verdict d) a panel of judges ruling on the case s outcome 9. The power of courts to declare unconstitutional the actions of the other branches and units of government is known as which of the following? a) stare decisis b) strict construction of the Constitution c) judicial review d) equity 10. What is the significance of the case of Marbury v. Madison? a) It is the first case in which the U.S. Supreme Court ruled an act of Congress unconstitutional. b) In this case the Supreme Court ruled that states must provide attorneys to criminal defendants unable to hire their own lawyers. c) It is the case that established the principle of separate-but-equal. d) The Supreme Court ruled that racially segregated schools violated the Constitution. 11. Someone who believes that judges should stick close to the literal meaning of the words in the Constitution is an advocate of which of the following? a) loose construction of the Constitution b) strict construction of the Constitution c) judicial reformism d) judicial activism 12. The doctrine of constitutional interpretation holding that the Constitution should be interpreted broadly is known as which of the following?
a) judicial restraint b) stare decisis c) strict construction of the Constitution d) loose construction of the Constitution 13. The Supreme Court claimed the power of judicial review in which of the following cases? a) McCulloch v. Maryland b) Marbury v. Madison c) Brown v. Board of Education of Topeka d) Plessy v. Ferguson 14. Since 1937, the U.S. Supreme Court has focused primarily on which of the following issue areas? a) civil liberties and civil rights b) government regulation of business c) foreign policy d) relations between the states and the national government 15. Which of the following federal courts is exclusively a trial court? a) district court b) court of appeal c) Supreme Court d) none of the above 16. Senatorial courtesy refers to which of the following? a) the cordiality with which senators normally treat one another b) the custom that senators from the president s party have a veto on district court appointments from their states c) the legislative custom whereby the House usually accepts amendments added by the Senate to legislation initially passed by the House d) none of the above 17. Senatorial courtesy is most important in the appointment of judges to which of the following courts? a) district courts
b) courts of appeal c) Supreme Court d) It is equally important in all three courts. 18. Which of the following would you expect to be the main difference between federal judges appointed by President Bush and judges appointed by President Clinton? a) The Bush appointees would be Republicans while Clinton would appoint Democrats. b) The Bush appointees would be older on average than the Clinton appointees. c) The Bush appointees would be better qualified than the Clinton appointees. d) The Bush appointees would be more liberal than the Clinton appointees. 19. What is the term of office of Supreme Court justices? a) They serve four-year terms. b) They serve until a new president takes office. c) They serve until age 70 when they must retire. d) They serve for life. 20. According to the Constitution, the Supreme Court includes how many justices? a) six b) nine c) ten d) The Constitution does not indicate the number of justices to serve on the Court. 21. A lawsuit initiated to assess the constitutionality of a legislative or executive act is known as which of the following? a) a friend of the court brief b) an amicus brief c) an appeal d) a test case 22. If the Supreme Court grants certiorari, what has the Court done? a) ruled in favor of the plaintiff in a case b) agreed to hear arguments and rule on a case appealed to it c) refused to hear a case appealed to it d) allowed an indigent defendant to file an appeal without paying full fees 23. How many members of the Supreme Court must agree before the Court will accept a case for review?
a) four b) five c) six d) nine 24. The justices of the Supreme Court vote unanimously to decide a case. Who decides who writes the majority opinion? a) The chief justice decides. b) The justice with the most seniority on the Court decides. c) The justices decide by majority vote. d) It is decided by lot. 25. The Supreme Court votes six to three to decide a case. Justice A is a member of the majority, but disagrees with the reasoning presented in the majority opinion. What action might Justice A take? a) Justice A might write a concurring opinion. b) Justice A might write a dissenting opinion. c) Justice A might write a per curiam opinion d) Justice A might write an opinion in forma pauperis. 26. Assuming that the Supreme Court is fully staffed and that every member participates, how many justices must agree for the Court to reach a decision? a) four b) five c) six d) nine 27. The U.S. Supreme Court rules that an act of Congress is unconstitutional. How might that decision be overturned? a) It cannot be reversed. b) Congress could pass the law again by majority vote. c) Congress could pass the law again by two-thirds vote. d) Congress and the states could amend the Constitution. 28. In which of the following issue areas has the Supreme Court had the greatest impact on policymaking? a) economic policy b) regulatory policy c) foreign and defense policy d) civil liberties and civil rights Short Answer Questions
1. What is the difference between a civil and a criminal case? Give an example of each type of case. 2. What is the difference between a trial and an appeal? 3. What is judicial review? On what legal basis do courts exercise the power of judicial review? 4. Congress passes a law outlawing the burning of the American flag. Critics of the law believe that it violates First Amendment guarantees of freedom of expression. You are a justice on the Supreme Court and you believe firmly in the principle of judicial restraint. Would you rule the anti flag-burning law constitutional or unconstitutional? Why? 5. You are a senator from Florida and a member of the president s political party. What influence do you have on the judicial selection process? (Be sure to explain fully whether you have influence over all judicial appointments or just over certain appointments.) 6. Does the chief justice of the United States enjoy more authority than the eight associate justices? If so, what particular power does the chief justice have? 7. Who decides which cases the Supreme Court will decide? How is that decision made? 8. Congress passes a law outlawing the burning of the American flag. You belong to an interest group that believes the law violates the First Amendment guarantee of freedom of expression. What action could your group take to challenge the constitutionality of the law? 9. Suppose the Supreme Court refuses to grant certiorari to a case appealed from a court of appeals. What is the status of that case? 10. You are a member of the U.S. Supreme Court and you want to accept a particular case for review. How many other justices must agree with you before the Court will review the case and make a ruling? 11. What are amicus curiae or friend of the court briefs? What role do they play in the judicial policymaking process? 12. You are a federal court of appeals justice. You are called on to decide a case raising issues similar to those dealt with in the case of Roe v. Wade. In making your decision, would you pay closest attention to the majority opinion in Roe, the concurring opinions, or the dissenting opinions? Why? 13. Suppose the U.S. Supreme Court issues a ruling in which it interprets the Civil Rights Act of 1964 (a law passed by Congress). The ruling is quite controversial. How might the Court s ruling be reversed?
Essay Questions 1. Should the Constitution be interpreted using strict or loose construction? Write an essay in which you describe each of these approaches to interpreting the Constitution. Examine the arguments supporting each position. Conclude with your assessment of the appropriate approach to constitutional interpretation. 2. Nominating individuals for the Supreme Court is one of the president s most important responsibilities. Write an essay discussing the selection process for Supreme Court justices and the criteria the president uses in making selections. Also, discuss the factors that influence the likelihood that a nominee will be confirmed by the Senate. Illustrate your points with examples from recent administrations. 3. The judiciary is the only branch of American national government whose members are not elected. Moreover, federal judges enjoy life tenure and their pay may not be reduced. This does not mean, however, that there are no checks on the judicial branch. Write an essay in which you consider the checks and balances that exist on the power of the federal courts. 4. One piece of evidence that the courts are political as well as legal institutions is that they are the targets of interest group activity. Write an essay outlining and discussing the ways interest groups attempt to influence judicial decision-making. Use examples to illustrate your points. 5. Write an essay discussing the role of the courts in the policymaking process. Your essay should consider the following topics: 1) Discuss how ordinary cases can become instruments for policy decisions whose importance far transcends the particulars of the case involved, giving at least one specific example; 2) Identify the types of issues on which the courts today have the greatest influence; and 3) Identify the factors that affect the relative influence of the courts on policy at any one time and on any particular issue. Role Play Take Home Test Question Have students role-play as judges deciding a case taken from current events, or a hypothetical case you create for them. Let them determine innocence or guilt in a criminal setting, as well as admissibility of evidence. Or in a civil case, let them determine which side prevails.