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. In the United States, the Supreme Court has extraordinary power to shape the nation s policies through the practice of judicial review, which was first explicated by Justice Marshall in the Marbury v. Madison case in 1803. I. 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. D. Judicial Review Judicial review is the process for deciding whether a law is contrary to the mandates of the Constitution. This power is not mentioned in the Constitution. Rather, it was established in the case of Marbury v. Madison. In that case, Chief Justice Marshall ruled that the Supreme Court had the power to decide that a law passed by Congress violated the Constitution. The Supreme Court has ruled parts or all of acts of Congress to be unconstitutional less than 200 times in its
history. State laws, however, have been declared unconstitutional by the court more than a 1000 times. II. THE FEDERAL COURT SYSTEM The United States has a dual court system, comprised of both federal and state courts. The federal court derives its power from the U.S. Constitution, Article III, Section 1 and is organized according to Congressional legislation. State courts draw their authority from state constitutions and laws. Court cases that originate in state court systems reach the Supreme Court only after they have been appealed to the highest possible state court. A. Basic Judicial Requirements 1. Jurisdiction. Jurisdiction 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/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 of 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 criterion is that the party bringing a lawsuit must have standing to sue; i.e., the party must have suffered harm, or be in danger of suffering harm, and there must be a justiciable (real, not hypothetical) controversy. B. Types of Federal Courts The federal court system is basically a three tiered model: (1) U.S. district courts and specialized federal courts, (2) intermediate U.S. courts of appeals, and (3) the U. S. Supreme Court. In addition, the U.S. military has its own system of courts, which are established under the Uniform Code of Military Justice. 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 actions and decisions of the lower court and decides whether 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 U. S. Supreme Court. This is the highest court in the country. It has jurisdiction to hear both original and appellate cases, although nearly all of its cases are appellate cases. C. Specialized Federal Courts and the War on Terrorism These two secret courts were created in response to terrorist attacks and thus embody the tension between national security interests and the protection of individual rights to due process. Several actions by the George W. Bush administration were ultimately overturned by the U.S. Supreme Court. Enemy combatants held at Guantanamo Bay, Cuba, pose unique challenges and many remain unresolved. 1. The FISA Court. This is a secret court of seven judges (who are also federal district judges from across the country) 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 an 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: The plaintiff is the person or organization that initiates a lawsuit. The defendant is the person or organization against whom the lawsuit is brought. To litigate is to engage in a legal proceeding or seek relief in a court of law; to carry on a lawsuit. Amicus curiae brief is 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. An example is a 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. III. 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 decided 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? Former 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 the issue could have significance beyond the parties to the dispute; and 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 that 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 engage in oral arguments. The Court normally does not hear evidence, as is true with all appeals courts. The Court s consideration of a case is based on the abstracts, the record, and the briefs. Unlike the practice in most
courts, lawyers addressing the Supreme Court can be (and often are) questioned by the justices during oral argument. The justices then meet in conference to discuss and vote on cases. 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. Some have complained that the Court reviews too few cases each term, thus giving the lower courts less guidance on important issues. Indeed, the number of opinions issued by the Court has dwindled notably since the 1980s, from 151 to roughly 80 100 per term. Some scholars suggest that one of the reasons the Court hears fewer cases today is the growing conservatism of the judges sitting on lower courts. As a result, the government loses fewer cases in the lower courts, which lessens the need for the government to appeal the rulings. IV. THE SELECTION OF FEDERAL JUDGES A. Judicial Appointments After the president has nominated a candidate for any federal judicial position, the U. S. 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 from the nominee s state to veto a judicial appointment by way of a blue slip. 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. 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. In fact, every member of the current Supreme Court served on a federal circuit court of appeals.
3. Supreme Court Appointments. Nominations to the Supreme Court are carefully considered by the president. Only two members of the Court have been African American and only four have been female. 4. The Special Role of the Chief Justice. The chief justice not only heads the Supreme Court, but also serves as the chief executive officer of the large bureaucracy within the federal judicial system. 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. Certainly this was the case with George W. Bush s selection of John Roberts and Samuel Alito to become members of the Court. However, it must be noted that as members sit on the Court they have a tendency to modify their ideological positions and some have been bitter disappointments to the presidents who nominated them. 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. George W. Bush was forced to withdraw his nomination of Harriet Miers when Republicans in the Senate questioned her qualifications. Presidents Obama s two nominations, Sonia Sotomayor and Elena Kagan, although seen as too liberal by some senators, were eminently qualified for the court and were approved by the Senate with little incident. V. 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. Although most people have come to accept the concept of judicial review, bear in mind that this power is not specifically articulated in the Constitution. Rather, Article III speaks in terms of the judicial power being given to the Supreme Court, although some commentators argue that the Framers understood judicial review to be encompassed by the concept of judicial power. The idea of judicial review was formally claimed by the Supreme Court in the landmark case of Marbury v. Madison (1803) in a decision written by Chief Justice John Marshall. 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 Roberts Court demonstrates that the reverse is also possible. C. Strict versus Broad Construction Key concepts: Strict construction is a judicial philosophy that looks to the letter of the law when interpreting the Constitution or a particular statute. Broad construction is 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 had been considered conservative, reflecting the philosophical views of the Republican presidents who selected most of the justices on the Court. With the retirement of Sandra Day O Connor and the death of William Rehnquist, the Court stands ideologically divided. Today, two of the justices, Antonin Scalia and Clarence Thomas, are notably conservative. The two new Bush appointees, Chief Justice John Roberts and Samuel Alito, are expected to join Scalia and Thomas to form a four judge conservative wing. Four members of the Court, John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer, line up on the liberal wing of the Court. Justice Anthony Kennedy stands in the center and his decisions control, to a great extent, the direction of the Court.
E. The Roberts Court In 2006, John Roberts was appointed to be the new Chief Justice. During Roberts first term as chief justice (2005 2006), the Court ruled on several important issues, but no clear pattern was discernible in the decisions. In the years following his appointment, Roberts was more likely to vote with the conservative justices than with the moderate to liberal bloc. Thus a number of important decisions were handed down with close votes. VI. WHAT CHECKS OUR COURTS? Although our judicial system is one of the most independent in the world, the courts do not have absolute independence. Political checks limit the extent to which courts can exercise judicial review and engage in activist policy. These checks are exercised by the executive branch, the legislature, the public, and, finally, the 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 has left office. B. Legislative Checks Courts may make rulings, but often the legislatures at local, state, and federal levels are required to appropriate funds to carry out the courts rulings. When such funds are not appropriated, the court that made the ruling, in effect, has been checked. 1. Constitutional Amendments. Congress can propose a constitutional amendment if it opposes the Supreme Court s interpretation of the Constitution. 2. Rewriting Laws. 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.