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The Courts

0Learning Objectives

After reading this chapter, you should be able to

  • Define the key terms at the end of the chapter.

  • Explain the concept of judicial review and how it was established in Marbury v. Madison.

  • Discuss how the U.S. version of judicial review is different from that of other countries.

  • Sketch the basic organization of the federal court system.

  • Explain the role of the federal district courts and federal appeals courts.

  • Describe two ways in which judges exercise a policymaking role.

  • Outline the routes by which cases come to the Supreme Court.

  • Describe the formal procedures at the Supreme Court’s biweekly conferences.

  • Explain ways in which justices, particularly the chief justice, influence court decisions.

  • Describe the process of appointment to the federal judiciary.

  • Evaluate the Supreme Court as an instrument of pluralist or majoritarian democracy.

0The Courts and the Challenge of Democracy

In the American system, the courts interpret the law. Courts are made up of judges, and judges bring their own value systems with them to the job. Each judge will give a different weight to freedom, order, and equality. Since federal judges hold lifetime appointments to insulate them from politics, a president’s judicial appointees will continue to make decisions long after he leaves office. They may do so without regard for the will of the majority. The decision of the Supreme Court in the 1953 landmark case Brown v. Board of Education of Topeka, Kansas, changed American society forever. The Supreme Court justices had to decide which interpretation of the law to value. In turn, their interpretation would translate into what was best for American society.

When judges interpret laws and precedents loosely, in ways that are heavily influenced by their own values, they are said to be judicial activists. When they stick closely to the letter of the law and let their own preferences intrude as little as possible, they are said to exercise judicial restraint. Is judicial activism compatible with democracy? Sometimes it has promoted democratic ends, as in the one person, one vote decisions, for example. But the judiciary itself is the least democratic branch of government. Its members are protected from popular control, because they are appointed, not elected, to serve life terms. Through judicial review, the Supreme Court may, and has, overruled acts of the popularly elected Congress. Democracies are always wary of their court systems, because most judicial officials are appointed, which goes against the right of the people to determine their elected officials.

0Chapter Overview

In American democracy, the court system is involved in many decisions. Yet the courts themselves are largely beyond democratic control. Judges are limited by statutes and precedents, but they still have substantial leeway in deciding how to interpret them. Thus their own values often influence their interpretations, setting the stage for judicial restraint or judicial activism.

0National Judicial Supremacy

The founders could not agree on the details concerning the structure of the federal judiciary. So after creating a single Supreme Court, they left most of the details up to the first Congress. By the Judiciary Act of 1789, that Congress established a system made up of district courts, circuit courts, and the Supreme Court.

Under Chief Justice John Marshall, the Supreme Court developed into a powerful branch of government that could check the power of other branches through its use of judicial review. Judicial review was interpreted from the Marbury v. Madison case, where the Court established itself as the final authority on the meaning of the Constitution.

The implications of the Marbury v. Madison case and the interpretation of judicial review were enormous. Once these precedents were set, the Supreme Court had the ultimate check on the other branches of the federal government and, by extension, the ultimate check over state government. This kind of power, held by unelected officials, who usually kept their position for life, directly contradicted the philosophy behind our democratic society. And yet it is this separation from politics which allows the justices to think critically on their cases and not be swayed by what would politically expedient.

0The Organization of Courts

The U.S. court system is complex. In addition to a national system, there are separate court systems operating in each state. The main entry points for cases into the national judicial system are the ninety-four federal district courts, which hear criminal cases involving violations of federal law, civil cases brought under federal law, cases in which the federal government is the plaintiff or defendant, and civil cases between citizens of different states when more than $75,000 is at issue.

Federal courts handle far fewer cases than state courts do, but the number of cases in federal courts has grown and is generally related to the overall level of social, political, and economic activity in the nation as a whole.

Judges exert a policymaking function by applying rules (precedents) established in prior decisions (common or judge-made law) and by interpreting legislative acts (through a process of statutory construction).

Appeals may be carried from federal district courts to one of the thirteen federal courts of appeals. Judges in the federal appeals courts sit in panels of three. They write and publish opinions on the cases they hear. These opinions establish legal precedents that serve as a basis for continuity and stability, following the principle of stare decisis.

Since relatively few cases are ever brought to the Supreme Court, the decision of a lower court is usually the final word. The decentralization of the system allows for individual judges in various district or circuit courts to interpret laws differently; this lack of uniformity may cause difficulties until discrepancies are resolved by a Supreme Court decision.

0The Supreme Court

The Supreme Court makes national policies; its decisions affect the nation as a whole. The Court’s caseload rarely includes cases that it hears as part of its original jurisdiction under the Constitution, so the vast majority of cases come to the Court on appeal from lower federal courts or state courts.

The Court controls its docket and hears very few cases, less than a hundred a year. Cases usually come to it only after all other avenues have been exhausted and must concern a substantial federal question. Even when these preconditions have been satisfied, four justices must be interested enough to hear the case, or it is not argued before the Court.

In deciding which cases to review, the Court often takes cues from the solicitor general, the Department of Justice official who represents the government before the Court. The solicitor general performs a dual role as an advocate for the president’s policy preferences and as an officer of the Court, defending the institutional interests of the federal government.

Once a case is placed on the Court’s docket, each side is scheduled for thirty minutes of oral arguments before the Court. After a case has been heard, the nine judges meet in conference to discuss their positions. A formal vote decides the outcome and who will write the opinions, both the majority and the minority.

Justices differ markedly in their approach to the cases and the role they are supposed to play. Some may practice judicial restraint, trying to stick closely to the intent of the legislators who made the law and to previous decisions of the courts. Other justices may take on the role of judicial activist, interpreting the law more loosely and in accord with their own policy preferences. In recent history, as a result of many activist judges’ support for liberal ideas, judicial activism has been associated with liberalism. But the decision in the case of Bush v. Gore proves that conservative judges can also become judicial activists. Although justices may agree on what the particular result of a case should be, they may not agree fully on the legal reasons for the decision. In the Supreme Court’s policymaking, both the Court’s decision and the reasons offered for it are important. The opinion, or explanation of reasons for a decision, is critical. Sometimes justices may shift their votes if they do not believe an opinion is based on legal reasoning they are able to support.

Justices will try to win the support of their fellow justices in conference and also through their opinion writing. They may also try to influence the selection of personnel for the Court.

The chief justice is particularly well placed to exercise leadership on the Court. He or she directs the conference and, by tradition, speaks first and votes last in Court deliberations. When voting with the majority, the chief justice assigns the opinion. Astute use of these powers can make the chief justice an intellectual leader, a social leader, and a policy leader, although perhaps only Chief Justice Marshall ever fully filled all three roles.

0Judicial Recruitment

There are no formal constitutional qualifications for federal judgeships, though a set of standards has evolved. By law, judges must be approved by the Senate. Over the years, an informal practice known as senatorial courtesy has given the senior senator of the president’s party a substantial amount of control over judicial appointments in his state, although this power is not as extensive as it once was. In addition, the American Bar Association screens candidates and ranks them as qualified or unqualified for office, though it has come to play a diminished role in the appointment process.

Presidents generally seek to appoint judges who share their ideological orientation. Thus, while President Carter sought judges who mirrored the population in race and gender, President Reagan and President George H. W. Bush looked for judges who valued order and appointed fewer women and minorities to the federal bench. President Clinton, like President Carter, sought greater diversity in his appointments. President George W. Bush appointed the most Hispanic judges ever.

0The Consequences of Judicial Decisions

Only a small percent of federal cases wind up in court. Many civil cases end in out-of-court settlements. In criminal cases, defendants often admit guilt and plea bargain.

Although the courts have the power to make judgments, they do not have the power to implement the policies they make. They must rely on the other branches of government for that. Judicial opinions are not always popular. Courts as institutions may appear to be countermajoritarian. Yet, a study of Supreme Court decisions shows that the Court mirrored public opinion in more than 60 percent of its decisions. (Two major exceptions are the abortion issue, where the public is sharply divided, and school prayer, where the public opposes the Court’s decisions.) The key reasons for this are that the Court tends to defer to the law, and the law tends to mirror public opinion. According to a 2005 Gallup Poll, six out of ten approve of the job the Supreme Court is doing.

0The Courts and Models of Democracy

The major question in evaluating the role of the courts as creators of policy concerns how far judges stray from existing statutes and precedents. Majoritarians want judges to cling closely to the letter of the law, leaving it to the elected legislature to decide how much emphasis to put on equality or order. Pluralists think the values of judges should come into play to advance the values and interests of the population. Several aspects of the judicial system make it conform to the pluralist model. Among these are the decentralized court system, which offers multiple access points to the legal system, and class-action suits, which allow individuals to pool their claims.

0Key Terms

judicial review

criminal cases

civil cases

plea bargain

common or judge-made law

U.S. district courts

U.S. courts of appeals


stare decisis

original jurisdiction

appellate jurisdiction

federal question


rule of four

solicitor general

amicus curiae brief

judicial restraint

judicial activism





senatorial courtesy

class action

0Research and Resources

An excellent starting point for research on the Supreme Court is Congressional Quarterly’s Guide to the U.S. Supreme Court, 4th ed. (Washington, DC: Congressional Quarterly Press, 2004). This hefty volume contains a brief (sixty-page) overview of the origins and development of the Court and detailed analyses of the role of the Court in the federal system, of Court decisions on individual rights, of pressures on the Court, and of the Court at work. It includes brief biographies of every justice who ever served on the Court and short summaries of major decisions.

What if you need more than a brief summary of a case; what if you must examine the actual opinion handed down by the Court? Suppose, for example, that you wanted to find the Supreme Court decision that forced President Nixon to surrender the Watergate tapes. The Internet simplifies the task. One method would be to use the Oyez site, <http://www.oyez.org/>, on which you locate cases by number, date, or term. If you are not able to use the Internet, consult the subject index in the back of Guenther’s United States Supreme Court Decisions. Look up the word Watergate, and you will find a reference leading to the place where the case you want appears in the listing in the front of the book. Regardless of the source you use, you will find the case cited as United States v. Richard M. Nixon, 418 US 683. This citation for the case refers to where it appears in U.S. Reports, the official version of the opinion published by the U.S. Government Printing Office. The number preceding US indicates the volume number, while the number following US gives the page number where the case is to be found.

Sometimes, if you are working on a project that involves references to eighteenth- and nineteenth-century cases, you will find cases cited as follows:

  • Calder v. Bull (3 Dall. 386), 1798

  • Fletcher v. Peck (6 Cr. 87), 1810

  • McCulloch v. Maryland (4 Wheat. 316), 1819

Until 1875, the official reports of the Supreme Court were designated by the last name of the court reporter who recorded the decisions. The abbreviations in the above examples stand for the first three court reporters, whose names were Dallas, Cranch, and Wheaton. The citation for the McCulloch case tells you that it will be found in the fourth volume of Wheaton’s reports, on page 316.
Here is a list of the early reporters, their dates, and the redesignations assigned to make each conform to the U.S. Reports system.

Early Designation


Dates Covered

U.S. Reports































To cite a case in a footnote or bibliography, you should include the official name of the case (usually the names of the two parties to the case), the volume of the report where the case appears (for example, Cr., Wall., US), the page number where the decision may be found, and the year in which the case was decided.

Other Judicial Sites: In addition to providing access to cases, the Oyez website mentioned above offers an opportunity to listen to the actual oral arguments of a large selection of cases before the Supreme Court, as well as extensive biographical material on the justices and a virtual tour of the Court building. The Federal Judicial Homepage, <http://www.uscourts.gov>, offers general information about the court system as well as a map showing the circuits at <http://www.uscourts.gov/links.html>. The American Judicature Society, which promotes the effective administration of justice and includes judges and lawyers as well as lay people in its membership, can be found online at <http://www.ajs.org>.

0Using Your Knowledge0

10. Using the procedures outlined in the Research and Resources section above, locate the following cases:

  • VMI case

  • Cases involving Hustler publisher, Larry Flynt

  • Roe v. Wade

Find each opinion online or on the library shelf, and copy the citation from each opinion.

20. Using the resources outlined in the section above, prepare a list of Supreme Court decisions dealing with each of these subjects.

  • Executive privilege

  • Children’s rights

  • The Internet

  • The veto power

Give a full citation for each case.

30. Listen to the oral argument for at least one of the cases you found in question 1 or 2 above.

0Getting Involved

If you see yourself sitting on the Supreme Court some day, perhaps you would like to take a crack at an internship while you are still in college. Most opportunities to work at the Supreme Court take the form of clerkships and are available only to recent law school graduates. There are, however, a small number of highly competitive internships available to undergraduates. Some background in constitutional law is usually expected. Internships are available in summer, fall, and winter. They are unpaid, although a small scholarship may be available. For further information, go to the Supreme Court of the United States’ website at http://www.supremecourtus.gov/jobs/jip/jip.html or contact them at Judicial Internship Program, Office of the Administrative Assistant to the Chief Justice, Room 5, Washington, DC 20543. Telephone: 202-479 3415.

Many local law firms and local courts (county and municipal courts) also offer internship opportunities.

0Sample Exam Questions

0Multiple-Choice Questions0

10. When judges interject their own values into their interpretation of cases, what are they practicing?0

a0. liberalism

b0. conservatism

c0. judicial restraint

d0. judicial activism

e0. stare decisis

20. What do we call the power to declare acts of Congress invalid?

a0. judicial review

b0. judicial restraint

c0. judicial activism

d0. adjudication

e0. original jurisdiction

30. Why was Alexander Hamilton in favor of judicial review?0

a0. Justices needed to check the power of totalitarianism.

b0. Justices needed to check the power of legislative oppression.

c0. Justices needed to check the power of the electorate.

d0. Justices needed to check the power of the executive.

e0. Justices needed freedom to make their own laws.

40. What system ensured that federal judges could be independent of popular influences?

a0. lifetime appointments

b0. nomination or appointment process

c0. federal qualifications

d0. salary

e0. none of these

50. Which level of the federal courts system hears no cases of original jurisdiction? 0

a0. federal district courts

b0. federal tax court

c0. federal appellate courts

d0. U.S. Supreme Court

e0. None of the above; all hear cases of original jurisdiction.

60. Which of the following terms is used to describe a judicial ruling that serves as the basis for the ruling in a subsequent case?0

a0. stare decisis

b0. nolo contendre

c0. precedent

d0. argument

e0. concurrence

70. What do we call a court case stemming from a dispute over an accident, contract, or divorce?0

a0. crime

b0. civil case

c0. stare decisis

d0. criminal case

e0. plea bargaining

80. What is the term for the bias in favor of precedents or existing decisions?0

a0. rule of four

b0. tort

c0. amicus curiae

d0. judicial review

e0. stare decisis

90. Approximately how many new civil and criminal cases did our federal district courts get in 2006?

a0. 125,000 or less

b0. 225,000 or so

c0. 325,000 or so

d0. 425,000 or so

e0. over 500,000

100. On what basis are appeals made?

a0. guilt or innocence at trial court

b0. new evidence from trial court

c0. plea bargain

d0. rulings and procedure of trial court

e0. stare decisis of original trial

110. Which of the following is true about the chief justice?0

a0. assigns all opinions

b0. assigns opinions when voting with the majority

c0. speaks last in conference

d0. votes first in conference

e0. writes all opinions issued by the court

120. Bush v. Gore demonstrated that conservative judges may practice0

a0. judicial activism.

b0. judicial restraint.

c0. stare decisis.

d0. the rule of four.

e0. amicus curiae.

130. What tactics do justices use to mold their colleagues’ views?0

a0. racism

b0. bribery

c0. assault

d0. swearing

e0. none of the above

140. In what two types of cases can the Supreme Court hold original jurisdiction?0

a0. cases in which a state is a party and those involving ambassadors

b0. cases involving ambassadors and elected officials

c0. cases of civil liberties and civil rights

d0. cases in which a state is a party and those involving elected officials

e0. none of the above

150. Which of the following are needed to win a seat on the federal bench?0

a0. presidential nomination and approval by Congress

b0. open election and approval by Congress

c0. presidential nomination and approval by the House

d0. presidential nomination and approval by the Senate

e0. none of the above

160. Approximately how many laws have been declared unconstitutional by the U.S. Supreme Court?0

a0. less than 50

b0. about 75

c0. about 100

d0. about 125

e0. 150 or more

170. What term do we use to describe the petitions sent to the Supreme Court for their consideration?0

a0. petition of habeus corpus

b0. plea bargaining petition

c0. petition of certiorari

d0. writ of amicus curiae

e0. stare decisis petition

180. What official has the vital role of representing the U.S. government before the Supreme Court?0

a0. attorney general

b0. Speaker of the House

c0. chief White House counsel

d0. president pro tempore of the Senate

e0. solicitor general

190. Which of the following must be true in order for a state case to come before the Supreme Court?

a0. Appeals in the state court system must be exhausted.

b0. It must raise a legal question.

c0. It must receive approval from the president.

d0. All of the above.

e0. None of the above.

200. Who determines the docket of the U.S. Supreme Court?0

a0. president

b0. Congress

c0. Supreme Court

d0. solicitor general

e0. chief justice of the Supreme Court

210. What is the current salary of an associate Supreme Court justice?0

a0. $175,000

b0. $203,000

c0. $229,000

d0. $241,000

e0. over $250,000

220. What is the term used for the disagreement with a majority decision by a justice?0

a0. dissent

b0. concurrence

c0. ex post facto

d0. stare decisis

e0. nolo contendre

230. With major law firms offering $1 million or more to equity partners, why would anyone want to become a federal judge?0

a0. looks good on the resume

b0. power and prestige of the office

c0. perks that go with the federal job

d0. better retirement package

e0. none of the above

240. What political term is used to describe a norm under which a nomination must be acceptable to the home state senator from the president’s party?0

a0. nolo contendre

b0. stare decisis

c0. judicial restraint

d0. judicial activism

e0. senatorial courtesy

250. Which legal entity had the ability to prescreen judicial candidates in the past and still rates them today after their nomination?0

a0. American Civil Liberties Union

b0. League of Women Voters

c0. Federal Bar Committee

d0. American Bar Association

e0. Independent Judges Union

0Essay Questions0

10. Distinguish between judicial restraint and judicial activism. Is there a necessary connection between restraint and activism on the one hand and political ideology on the other?

20. What is judicial review? Explain how it was established in Marbury v. Madison.

30. What are the steps for a case to be decided by the U.S. Supreme Court?

40. Explain how cases come before the U.S. Supreme Court on appeal. How do they decide which cases to accept, and how do they make their decisions?

50. How are justices chosen? What has changed or been proposed to change in the last two hundred years?

0Answers to Multiple-Choice Questions0

10. d

20. a

30. b

40. a

50. c

60. c

70. b

80. e

90. c

100. d

110. b

120. a

130. e

140. a

150. d

160. e

170. b

180. e

190. a

200. c

210. d

220. a

230. b

240. e

250. d

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