The Courts 13

FIGURE 13.1 The Marriage Equality Act vote in Albany, New York, on July 24, 2011 (left), was just one of a number
of cases testing the constitutionality of both federal and state law that ultimately led the Supreme Court to take on
the controversial issue of same-sex marriage. In the years leading up to the 2015 ruling that same-sex couples have
a right to marry in all Zfty states, marriage equality had become a key civil rights issue for the LGBTQ community, as
demonstrated at Seattle’s 2012 Pride parade (right). (credit left: modiZcation of work by “Celebration
chapel”/Wikimedia; credit right: modiZcation of work by Brett Curtiss)

CHAPTER OUTLINE
13.1 Guardians of the Constitution and Individual Rights
13.2 The Dual Court System
13.3 The Federal Court System
13.4 The Supreme Court
13.5 Judicial Decision-Making and Implementation by the Supreme Court

INTRODUCTION If democratic institutions struggle to balance individual freedoms and collective well-being,
the judiciary is arguably the branch where the individual has the best chance to be heard. For those seeking
protection on the basis of sexual orientation, for example, in recent years, the courts have expanded rights,
such as the 2015 decision in which the Supreme Court ruled that same-sex couples have the right to marry in
all bfty states (Figure 13.1).1

The U.S. courts pride themselves on two achievements: (1) as part of the system of checks and balances, they
protect the sanctity of the U.S. Constitution from breaches by the other branches of government, and (2) they
protect individual rights against societal and governmental oppression. At the federal level, nine Supreme
Court judges are nominated by the president and conbrmed by the Senate for lifetime appointments. This
448 13 • The Courts

provides them the independence they need to carry out their duties. However, court power is conbned to
rulings on those cases the courts decide to hear.2

How do the courts make decisions, and how do they exercise their power to protect individual rights? How are
the courts structured, and what distinguishes the Supreme Court from all others? This chapter answers these
and other questions in delineating the power of the judiciary in the United States.

13.1 Guardians of the Constitution and Individual Rights

LEARNING OBJECTIVES
By the end of this section, you will be able to:
• Describe the evolving role of the courts since the ratiZcation of the Constitution
• Explain why courts are uniquely situated to protect individual rights
• Recognize how the courts make public policy

Under the Articles of Confederation, there was no national judiciary. The U.S. Constitution changed that, but its
Article III, which addresses “the judicial power of the United States,” is the shortest and least detailed of the
three articles that created the branches of government. It calls for the creation of “one supreme Court” and
establishes the Court’s jurisdiction, or its authority to hear cases and make decisions about them, and the
types of cases the Court may hear. It distinguishes which are matters of original jurisdiction and which are for
appellate jurisdiction. Under original jurisdiction, a case is heard for the brst time, whereas under appellate
jurisdiction, a court hears a case on appeal from a lower court and may change the lower court’s decision. The
Constitution also limits the Supreme Court’s original jurisdiction to those rare cases of disputes between
states, or between the United States and foreign ambassadors or ministers. So, for the most part, the Supreme
Court is an appeals court, operating under appellate jurisdiction and hearing appeals from the lower courts.
The rest of the development of the judicial system and the creation of the lower courts were left in the hands of
Congress.

To add further explanation to Article III, Alexander Hamilton wrote details about the federal judiciary in
Federalist No. 78. In explaining the importance of an independent judiciary separated from the other branches
of government, he said “interpretation” was a key role of the courts as they seek to protect people from unjust
laws. But he also believed “the Judiciary Department” would “always be the least dangerous” because “with no
incuence over either the sword or the purse,” it had “neither force nor will, but merely judgment.” The courts
would only make decisions, not take action. With no control over how those decisions would be implemented
and no power to enforce their choices, they could exercise only judgment, and their power would begin and
end there. Hamilton would no doubt be surprised by what the judiciary has become: a key component of the
nation’s constitutional democracy, bnding its place as the chief interpreter of the Constitution and the equal of
the other two branches, though still checked and balanced by them.

The brst session of the brst U.S. Congress laid the framework for today’s federal judicial system, established in
the Judiciary Act of 1789. Although legislative changes over the years have altered it, the basic structure of the
judicial branch remains as it was set early on: At the lowest level are the district courts, where federal cases are
tried, witnesses testify, and evidence and arguments are presented. A losing party who is unhappy with a
district court decision may appeal to the circuit courts, or U.S. courts of appeals, where the decision of the
lower court is reviewed. Still further, appeal to the U.S. Supreme Court is possible, but of the thousands of
petitions for appeal, the Supreme Court will typically hear fewer than one hundred a year.3

LINK TO LEARNING
This public site maintained by the Administrative Ofbce of the U.S. Courts (https://openstax.org/l/29fedcourts)
provides detailed information from and about the judicial branch.

Access for free at openstax.org.

 13.1 • Guardians of the Constitution and Individual Rights 449

HUMBLE BEGINNINGS
Starting in New York in 1790, the early Supreme Court focused on establishing its rules and procedures and
perhaps trying to carve its place as the new government’s third branch. However, given the difbculty of getting
all the justices even to show up, and with no permanent home or building of its own for decades, bnding its
footing in the early days proved to be a monumental task. Even when the federal government moved to the
nation’s capital in 1800, the Court had to share space with Congress in the Capitol building. This ultimately
meant that “the high bench crept into an undignibed committee room in the Capitol beneath the House
Chamber.”4

It was not until the Court’s 146th year of operation that Congress, at the urging of Chief Justice—and former
president—William Howard Taft, provided the designation and funding for the Supreme Court’s own building,
“on a scale in keeping with the importance and dignity of the Court and the Judiciary as a coequal,
independent branch of the federal government.”5 It was a symbolic move that recognized the Court’s growing
role as a signibcant part of the national government (Figure 13.2).

FIGURE 13.2 The Supreme Court building in Washington, DC, was not completed until 1935. Engraved on its
marble front is the motto “Equal Justice Under Law,” while its east side says, “Justice, the Guardian of Liberty.”

But it took years for the Court to get to that point, and it faced a number of setbacks on the way to such
recognition. In their brst case of signibcance, Chisholm v. Georgia (1793), the justices ruled that the federal
courts could hear cases brought by a citizen of one state against a citizen of another state, and that Article III,
Section 2, of the Constitution did not protect the states from facing such an interstate lawsuit.6 However, their
decision was almost immediately overturned by the Eleventh Amendment, passed by Congress in 1794 and
ratibed by the states in 1795. In protecting the states, the Eleventh Amendment put a prohibition on the courts
by stating, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity,
commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or
Subjects of any Foreign State.” It was an early hint that Congress had the power to change the jurisdiction of
the courts as it saw bt and stood ready to use it.

In an atmosphere of perceived weakness, the brst chief justice, John Jay, an author of The Federalist Papers
and appointed by President George Washington, resigned his post to become governor of New York and later
declined President John Adams’s offer of a subsequent term.7 In fact, the Court might have remained in a state
of what Hamilton called its “natural feebleness” if not for the man who blled the vacancy Jay had refused—the
fourth chief justice, John Marshall. Often credited with debning the modern court, clarifying its power, and
strengthening its role, Marshall served in the chief’s position for thirty-four years. One landmark case during
his tenure changed the course of the judicial branch’s history (Figure 13.3).8
450 13 • The Courts

FIGURE 13.3 John Jay (a) was the Zrst chief justice of the Supreme Court but resigned his post to become governor
of New York. John Marshall (b), who served as chief justice for thirty-four years, is often credited as the major force
in deZning the modern court’s role in the U.S. governmental system.

In 1803, the Supreme Court declared for itself the power of judicial review, a power to which Hamilton had
referred but that is not expressly mentioned in the Constitution. Judicial review is the power of the courts, as
part of the system of checks and balances, to look at actions taken by the other branches of government and
the states and determine whether they are constitutional. If the courts bnd an action to be unconstitutional, it
becomes null and void. Judicial review was established in the Supreme Court case Marbury v. Madison, when,
for the brst time, the Court declared an act of Congress to be unconstitutional.9 Wielding this power is a role
Marshall debned as the “very essence of judicial duty,” and it continues today as one of the most signibcant
aspects of judicial power. Judicial review lies at the core of the court’s ability to check the other branches of
government—and the states.

Since Marbury, the power of judicial review has continually expanded, and the Court has not only ruled actions
of Congress and the president to be unconstitutional, but it has also extended its power to include the review of
state and local actions. The power of judicial review is not conbned to the Supreme Court but is also exercised
by the lower federal courts and even the state courts. Any legislative or executive action at the federal or state
level inconsistent with the U.S. Constitution or a state constitution can be subject to judicial review.10

MILESTONE

Marbury v. Madison (1803)

The Supreme Court found itself in the middle of a dispute between the outgoing presidential administration of
John Adams and that of incoming president (and opposition party member) Thomas Jefferson. It was an
interesting circumstance at the time, particularly because Jefferson and the man who would decide the
case—John Marshall—were themselves political rivals.

President Adams had appointed William Marbury to a position in Washington, DC, but his commission was not
delivered before Adams left ofZce. So Marbury petitioned the Supreme Court to use its power under the Judiciary
Act of 1789 and issue a writ of mandamus to force the new president’s secretary of state, James Madison, to
deliver the commission documents. It was a task Madison refused to do. A unanimous Court under the
leadership of Chief Justice John Marshall ruled that although Marbury was entitled to the job, the Court did not
have the power to issue the writ and order Madison to deliver the documents, because the provision in the
Judiciary Act that had given the Court that power was unconstitutional.11

Access for free at openstax.org.

 13.1 • Guardians of the Constitution and Individual Rights 451

Perhaps Marshall feared a confrontation with the Jefferson administration and thought Madison would refuse his
directive anyway. In any case, his ruling shows an interesting contrast in the early Court. On one hand, it humbly
declined a power—issuing a writ of mandamus—given to it by Congress, but on the other, it laid the foundation for
legitimizing a much more important one—judicial review. Marbury never got his commission, but the Court’s
ruling in the case has become more signiZcant for the precedent it established: As the Zrst time the Court
declared an act of Congress unconstitutional, it established the power of judicial review, a key power that
enables the judicial branch to remain a powerful check on the other branches of government.

Consider the dual nature of John Marshall’s opinion in Marbury v. Madison: On one hand, it limits the power of the
courts, yet on the other it also expanded their power. Explain the different aspects of the decision in terms of
these contrasting results.

THE COURTS AND PUBLIC POLICY

Even with judicial review in place, the courts do not always stand ready just to throw out actions of the other
branches of government. More broadly, as Marshall put it, “it is emphatically the province and duty of the
judicial department to say what the law is.”12 The United States has a common law system in which law is
largely developed through binding judicial decisions. With roots in medieval England, the system was
inherited by the American colonies along with many other British traditions.13 It stands in contrast to code law
systems, which provide very detailed and comprehensive laws that do not leave room for much interpretation
and judicial decision-making. With code law in place, as it is in many nations of the world, it is the job of judges
to simply apply the law. But under common law, as in the United States, they interpret it. Often referred to as a
system of judge-made law, common law provides the opportunity for the judicial branch to have stronger
involvement in the process of law-making itself, largely through its ruling and interpretation on a case-by-case
basis.

In their role as policymakers, Congress and the president tend to consider broad questions of public policy and
their costs and benebts. But the courts consider specibc cases with narrower questions, thus enabling them to
focus more closely than other government institutions on the exact context of the individuals, groups, or issues
affected by the decision. This means that while the legislature can make policy through statute, and the
executive can form policy through regulations and administration, the judicial branch can also incuence
policy through its rulings and interpretations. As cases are brought to the courts, court decisions can help
shape policy.

Consider health care, for example. In 2010, President Barack Obama signed into law the Patient Protection and
Affordable Care Act (ACA), a statute that brought signibcant changes to the nation’s healthcare system. With
its goal of providing more widely attainable and affordable health insurance and health care, “Obamacare” was
hailed by some but soundly denounced by others as bad policy. People who opposed the law and understood
that a congressional repeal would not happen any time soon looked to the courts for help. They challenged the
constitutionality of the law in National Federation of Independent Business v. Sebelius, hoping the Supreme
Court would overturn it.14 The practice of judicial review enabled the law’s critics to exercise this opportunity,
even though their hopes were ultimately dashed when, by a narrow 5–4 margin, the Supreme Court upheld the
health care law as a constitutional extension of Congress’s power to tax.

Since this 2012 decision, the ACA has continued to face challenges, the most notable of which have also been
decided by court rulings. It faced a setback in 2014, for instance, when the Supreme Court ruled in Burwell v.
Hobby Lobby that, for religious reasons, some for-probt corporations could be exempt from the requirement
that employers provide insurance coverage of contraceptives for their female employees.15 But the ACA also
attained a victory in King v. Burwell, when the Court upheld the ability of the federal government to provide tax
credits for people who bought their health insurance through an exchange created by the law.16

With each ACA case it has decided, the Supreme Court has served as the umpire, upholding the law and some
452 13 • The Courts

of its provisions on one hand, but ruling some aspects of it unconstitutional on the other. Both supporters and
opponents of the law have claimed victory and faced defeat. In each case, the Supreme Court has further
debned and bne-tuned the law passed by Congress and the president, determining which parts stay and which
parts go, thus having its say in the way the act has manifested itself, the way it operates, and the way it serves
its public purpose.

In this same vein, the courts have become the key interpreters of the U.S. Constitution, continuously
interpreting it and applying it to modern times and circumstances. For example, it was in 2015 that we learned
a man’s threat to kill his ex-wife, written in rap lyrics and posted to her Facebook wall, was not a real threat and
thus could not be prosecuted as a felony under federal law.17 Certainly, when the Bill of Rights brst declared
that government could not abridge freedom of speech, its framers could never have envisioned Facebook—or
any other modern technology for that matter.

But freedom of speech, just like many constitutional concepts, has come to mean different things to different
generations, and it is the courts that have designed the lens through which we understand the Constitution in
modern times. It is often said that the Constitution changes less by amendment and more by the way it is
interpreted. Rather than collecting dust on a shelf, the nearly 230-year-old document has come with us into
the modern age, and the accepted practice of judicial review has helped carry it along the way.

COURTS AS A LAST RESORT

While the U.S. Supreme Court and state supreme courts exert power over many when reviewing laws or
declaring acts of other branches unconstitutional, they become particularly important when an individual or
group comes before them believing there has been a wrong. A citizen or group that feels mistreated can
approach a variety of institutional venues in the U.S. system for assistance in changing policy or seeking
support. Organizing protests, garnering special interest group support, and changing laws through the
legislative and executive branches are all possible, but an individual is most likely to bnd the courts especially
well-suited to analyzing the particulars of a case.

The adversarial judicial system comes from the common law tradition: In a court case, it is one party versus
the other, and it is up to an impartial person or group, such as the judge or jury, to determine which party
prevails. The federal court system is most often called upon when a case touches on constitutional rights. For
example, when Samantha Elauf, a Muslim woman, was denied a job working for the clothing retailer
Abercrombie & Fitch because a headscarf she wears as religious practice violated the company’s dress code,
the Supreme Court ruled that her First Amendment rights had been violated, making it possible for her to sue
the store for monetary damages.

Elauf had applied for an Abercrombie sales job in Oklahoma in 2008. Her interviewer recommended her based
on her qualibcations, but she was never given the job because the clothing retailer wanted to avoid having to
accommodate her religious practice of wearing a headscarf, or hijab. In so doing, the Court ruled, Abercrombie
violated Title VII of the Civil Rights Act of 1964, which prohibits employers from discriminating on the basis of
race, color, religion, sex, or national origin, and requires them to accommodate religious practices.18

Rulings like this have become particularly important for members of religious minority groups, including
Muslims, Sikhs, and Jews, who now feel more protected from employment discrimination based on their
religious attire, head coverings, or beards.19 Such decisions illustrate how the expansion of individual rights
and liberties for particular persons or groups over the years has come about largely as a result of court rulings
made for individuals on a case-by-case basis.

Although the United States prides itself on the Declaration of Independence’s statement that “all men are
created equal,” and “equal protection of the laws” is a written constitutional principle of the Fourteenth
Amendment, the reality is less than perfect. But it is evolving. Changing times and technology have and will
continue to alter the way fundamental constitutional rights are debned and applied, and the courts have
proven themselves to be crucial in that debnition and application.

Access for free at openstax.org.

 13.1 • Guardians of the Constitution and Individual Rights 453

Societal traditions, public opinion, and politics have often stood in the way of the full expansion of rights and
liberties to different groups, and not everyone has agreed that these rights should be expanded as they have
been by the courts. Schools were long segregated by race until the Court ordered desegregation in Brown v.
Board of Education (1954), and even then, many stood in opposition and tried to block students at the
entrances to all-White schools.20 Factions have formed on opposite sides of the abortion and handgun debates,
because many do not agree that women should have abortion rights or that individuals should have the right to
a handgun. People disagree about whether members of the LGBTQ community should be allowed to marry or
whether arrested persons should be read their rights, guaranteed an attorney, and/or have their cell phones
protected from police search.

But the Supreme Court has ruled in favor of all these issues and others. Even without unanimous agreement
among citizens, Supreme Court decisions have made all these possibilities a reality, a particularly important
one for the individuals who become the benebciaries (Table 13.1). The judicial branch has often made
decisions the other branches were either unwilling or unable to make, and Hamilton was right in Federalist No.
78 when he said that without the courts exercising their duty to defend the Constitution, “all the reservations of
particular rights or privileges would amount to nothing.”

Examples of Supreme Court Cases Involving Individuals

Case Name Year Court’s Decision

Brown v. Board of Education 1954 Public schools must be desegregated.

Gideon v. Wainwright 1963 Poor criminal defendants must be provided an attorney.

Miranda v. Arizona 1966 Criminal suspects must be read their rights.

Roe v. Wade 1973 Women have a constitutional right to abortion.

McDonald v. Chicago 2010 An individual has the right to a handgun in his or her home.

Riley v. California 2014 Police may not search a cell phone without a warrant.

Obergefell v. Hodges 2015 Same-sex couples have the right to marry in all states.

TABLE 13.1 Over time, the courts have made many decisions that have broadened the rights of
individuals. This table is a sampling of some of these Supreme Court cases.

The courts seldom if ever grant rights to a person instantly and upon request. In a number of cases, they have
expressed reluctance to expand rights without limit, and they still balance that expansion with the
government’s need to govern, provide for the common good, and serve a broader societal purpose. For
example, the Supreme Court has upheld the constitutionality of the death penalty, ruling that the Eighth
Amendment does not prevent a person from being put to death for committing a capital crime and that the
government may consider “retribution and the possibility of deterrence” when it seeks capital punishment for
a crime that so warrants it.21 In other words, there is a greater good—more safety and security—that may be
more important than sparing the life of an individual who has committed a heinous crime.

Yet the Court has also put limits on the ability to impose the death penalty, ruling, for example, that the
government may not execute a person with cognitive disabilities, a person who was under eighteen at the time
of the crime, or a child rapist who did not kill his victim.22 So the job of the courts on any given issue is never
quite done, as justices continuously keep their eye on government laws, actions, and policy changes as cases
454 13 • The Courts

are brought to them and then decide whether those laws, actions, and policies can stand or must go. Even with
an issue such as the death penalty, about which the Court has made several rulings, there is always the
possibility that further judicial interpretation of what does (or does not) violate the Constitution will be needed.

This happened, for example, as recently as 2015 in a case involving the use of lethal injection as capital
punishment in the state of Oklahoma, where death-row inmates are put to death through the use of three
drugs—a sedative to bring about unconsciousness (midazolam), followed by two others that cause paralysis
and stop the heart. A group of these inmates challenged the use of midazolam as unconstitutional. They
argued that since it could not reliably cause unconsciousness, its use constituted an Eighth Amendment
violation against cruel and unusual punishment and should be stopped by the courts. The Supreme Court
rejected the inmates’ claims, ruling that Oklahoma could continue to use midazolam as part of its three-drug
protocol.23 But with four of the nine justices dissenting from that decision, a sharply divided Court leaves open
a greater possibility of more death-penalty cases to come. The 2015–2016 session alone includes four such
cases, challenging death-sentencing procedures in such states as Florida, Georgia, and Kansas.24 In another
recent case, Bucklew v. Precythe (2019), the court again rejected an Eighth Amendment claim of the death
penalty as torture.25 Yet, while case outcomes would suggest that it is easier, not harder, to carry out the death
penalty, the number of executions across the U.S. has plummeted in recent years.26

Therefore, we should not underestimate the power and signibcance of the judicial branch in the United States.
Today, the courts have become a relevant player, gaining enough clout and trust over the years to take their
place as a separate yet coequal branch.

13.2 The Dual Court System

LEARNING OBJECTIVES
By the end of this section, you will be able to:
• Describe the dual court system and its three tiers
• Explain how you are protected and governed by different U.S. court systems
• Compare the positive and negative aspects of a dual court system

Before the writing of the U.S. Constitution and the establishment of the permanent national judiciary under
Article III, the states had courts. Each of the thirteen colonies had also had its own courts, based on the British
common law model. The judiciary today continues as a dual court system, with courts at both the national and
state levels. Both levels have three basic tiers consisting of trial courts, appellate courts, and bnally courts of
last resort, typically called supreme courts, at the top (Figure 13.4).

Access for free at openstax.org.

 13.2 • The Dual Court System 455

FIGURE 13.4 The U.S. judiciary features a dual court system comprising a federal court system and the courts in
each of the Zfty states. On both the federal and state sides, the U.S. Supreme Court is at the top and is the Znal court
of appeal.

To add to the complexity, the state and federal court systems sometimes intersect and overlap each other, and
no two states are exactly alike when it comes to the organization of their courts. Since a state’s court system is
created by the state itself, each one differs in structure, the number of courts, and even name and jurisdiction.
Thus, the organization of state courts closely resembles but does not perfectly mirror the more clear-cut
system found at the federal level.27 Still, we can summarize the overall three-tiered structure of the dual court
model and consider the relationship that the national and state sides share with the U.S. Supreme Court, as
illustrated in Figure 13.4.

Cases heard by the U.S. Supreme Court come from two primary pathways: (1) the circuit courts, or U.S. courts
of appeals (after the cases have originated in the federal district courts), and (2) state supreme courts (when
there is a substantive federal question in the case). In a later section of the chapter, we discuss the lower courts
and the movement of cases through the dual court system to the U.S. Supreme Court. But brst, to better
understand how the dual court system operates, we consider the types of cases state and local courts handle
and the types for which the federal system is better designed.

COURTS AND FEDERALISM

Courts hear two different types of disputes: criminal and civil. Under criminal law, governments establish
rules and punishments; laws debne conduct that is prohibited because it can harm others and impose
punishment for committing such an act. Crimes are usually labeled felonies or misdemeanors based on their
nature and seriousness; felonies are the more serious crimes. When someone commits a criminal act, the
government (state or national, depending on which law has been broken) charges that person with a crime,
and the case brought to court contains the name of the charging government, as in Miranda v. Arizona
discussed below.28 On the other hand, civil law cases involve two or more private (non-government) parties, at
least one of whom alleges harm or injury committed by the other. In both criminal and civil matters, the courts
456 13 • The Courts

decide the remedy and resolution of the case, and in all cases, the U.S. Supreme Court is the bnal court of
appeal.

LINK TO LEARNING
This site provides an interesting challenge: Look at the different cases presented (https://openstax.org/l/
29stcrtvsfedcrt) and decide whether each would be heard in the state or federal courts. You can check your
results at the end.

Although the Supreme Court tends to draw the most public attention, it typically hears fewer than one hundred
cases every year. In fact, the entire federal side—both trial and appellate—handles proportionately very few
cases, with about 90 percent of all cases in the U.S. court system being heard at the state level.29 The several
hundred thousand cases handled every year on the federal side pale in comparison to the several million
handled by the states.

State courts really are the core of the U.S. judicial system, and they are responsible for a huge area of law. Most
crimes and criminal activity, such as robbery, rape, and murder, are violations of state laws, and cases are thus
heard by state courts. State courts also handle civil matters; personal injury, malpractice, divorce, family,
juvenile, probate, and contract disputes and real estate cases, to name just a few, are usually state-level cases.

The federal courts, on the other hand, will hear any case that involves a foreign government, patent or
copyright infringement, Native American rights, maritime law, bankruptcy, or a controversy between two or
more states. Cases arising from activities across state lines (interstate commerce) are also subject to federal
court jurisdiction, as are cases in which the United States is a party. A dispute between two parties not from
the same state or nation and in which damages of at least $75,000 are claimed is handled at the federal level.
Such a case is known as a diversity of citizenship case.30

However, some cases cut across the dual court system and may end up being heard in both state and federal
courts. Any case has the potential to make it to the federal courts if it invokes the U.S. Constitution or federal
law. It could be a criminal violation of federal law, such as assault with a gun, the illegal sale of drugs, or bank
robbery. Or it could be a civil violation of federal law, such as employment discrimination or securities fraud.
Also, any perceived violation of a liberty protected by the Bill of Rights, such as freedom of speech or the
protection against cruel and unusual punishment, can be argued before the federal courts. A summary of the
basic jurisdictions of the state and federal sides is provided in Table 13.2.

Jurisdiction of the Courts: State vs. Federal

State Courts Federal Courts

Hear cases that involve a “federal question,” involving the

Hear most day-to-day cases, covering
Constitution, federal laws or treaties, or a “federal party” in which the
90 percent of all cases
U.S. government is a party to the case

Hear both civil and criminal matters, although many criminal cases
Hear both civil and criminal matters
involving federal law are tried in state courts

Help the states retain their own Hear cases that involve “interstate” matters, “diversity of citizenship”
sovereignty in judicial matters over involving parties of two different states, or between a U.S. citizen and
their state laws, distinct from the a citizen of another nation (and with a damage claim of at least
national government $75,000)

TABLE 13.2

Access for free at openstax.org.

 13.2 • The Dual Court System 457

While we may certainly distinguish between the two sides of a jurisdiction, looking on a case-by-case basis will
sometimes complicate the seemingly clear-cut division between the state and federal sides. It is always
possible that issues of federal law may start in the state courts before they make their way over to the federal
side. And any case that starts out at the state and/or local level on state matters can make it into the federal
system on appeal—but only on points that involve a federal law or question, and usually after all avenues of
appeal in the state courts have been exhausted.31

Consider the case Miranda v. Arizona.32 Ernesto Miranda, arrested for kidnapping and rape, which are
violations of state law, was easily convicted and sentenced to prison after a key piece of evidence—his own
signed confession—was presented at trial in the Arizona court. On appeal brst to the Arizona Supreme Court
and then to the U.S. Supreme Court to exclude the confession on the grounds that its admission was a violation
of his constitutional rights, Miranda won the case. By a slim 5–4 margin, the justices ruled that the confession
had to be excluded from evidence because in obtaining it, the police had violated Miranda’s Fifth Amendment
right against self-incrimination and his Sixth Amendment right to an attorney. In the opinion of the Court,
because of the coercive nature of police interrogation, no confession can be admissible unless a suspect is
made aware of his rights and then in turn waives those rights. For this reason, Miranda’s original conviction
was overturned.

Yet the Supreme Court considered only the violation of Miranda’s constitutional rights, but not whether he was
guilty of the crimes with which he was charged. So there were still crimes committed for which Miranda had to
face charges. He was therefore retried in state court in 1967, the second time without the confession as
evidence, found guilty again based on witness testimony and other evidence, and sent to prison.

Miranda’s story is a good example of the tandem operation of the state and federal court systems. His guilt or
innocence of the crimes was a matter for the state courts, whereas the constitutional questions raised by his
trial were a matter for the federal courts. Although he won his case before the Supreme Court, which
established a signibcant precedent that criminal suspects must be read their so-called Miranda rights before
police questioning, the victory did not do much for Miranda himself. After serving prison time, he was stabbed
to death in a bar bght in 1976 while out on parole, and due to a lack of evidence, no one was ever convicted in
his death.

THE IMPLICATIONS OF A DUAL COURT SYSTEM

From an individual’s perspective, the dual court system has both benebts and drawbacks. On the plus side,
each person has more than just one court system ready to protect that individual's rights. The dual court
system provides alternate venues in which to appeal for assistance, as Ernesto Miranda’s case illustrates. The
U.S. Supreme Court found for Miranda an extension of his Fifth Amendment protections—a constitutional right
to remain silent when faced with police questioning. It was a right he could not get solely from the state courts
in Arizona, but one those courts had to honor nonetheless.

The fact that a minority voice like Miranda’s can be heard in court, and that grievances can be resolved in a
minority voice's favor if warranted, says much about the role of the judiciary in a democratic republic. In
Miranda’s case, a resolution came from the federal courts, but it can also come from the state side. In fact, the
many differences among the state courts themselves may enhance an individual’s potential to be heard.

State courts vary in the degree to which they take on certain types of cases or issues, give access to particular
groups, or promote certain interests. If a particular issue or topic is not taken up in one place, it may be
handled in another, giving rise to many different opportunities for an interest to be heard somewhere across
the nation. In their research, Paul Brace and Melinda Hall found that state courts are important instruments of
democracy because they provide different alternatives and varying arenas for political access. They wrote,
“Regarding courts, one size does not bt all, and the republic has survived in part because federalism allows
these critical variations.”33

But the existence of the dual court system and variations across the states and nation also mean that there are
458 13 • The Courts

different courts in which a person could face charges for a crime or for a violation of another person’s rights.
Except for the fact that the U.S. Constitution binds judges and justices in all the courts, it is state law that
governs the authority of state courts, so judicial rulings about what is legal or illegal may differ from state to
state. These differences are particularly pronounced when the laws across the states and the nation are not the
same, as we see with marijuana laws today.

FINDING A MIDDLE GROUND

Marijuana Laws and the Courts

There are so many differences in marijuana laws between states, and between the states and the national
government, that uniform application of treatment in courts across the nation is nearly impossible (Figure 13.5).
What is legal in one state may be illegal in another, and state laws do not cross state geographic boundary
lines—but people do. What’s more, a person residing in any of the Zfty states is still subject to federal law.

FIGURE 13.5 Marijuana laws vary remarkably across the Zfty states. In many states, marijuana use is illegal, as
it is under federal law, but some states have decriminalized it, some allow it for medicinal use, and some have
done both. As of the middle of 2021, marijuana was legal for recreational use in eighteen states.

For example, a person over the age of twenty-one may legally buy marijuana for recreational use in sixteen states
and for medicinal purpose in more than 80 percent of the country, but could face charges—and time in court—for
possession in a neighboring state where marijuana use is not legal. Under federal law, too, marijuana is still
regulated as a Schedule 1 (most dangerous) drug, and federal authorities often Znd themselves pitted against
states that have legalized it. Such differences can lead, somewhat ironically, to arrests and federal criminal
charges for people who have marijuana in states where it is legal, or to federal raids on growers and dispensaries
that would otherwise be operating legally under their state’s law.

Differences among the states have also prompted a number of lawsuits against states with legalized marijuana,
as people opposed to those state laws seek relief from (none other than) the courts. They want the courts to
resolve the issue, which has left in its wake contradictions and conflicts between states that have legalized

Access for free at openstax.org.

 13.3 • The Federal Court System 459

marijuana and those that have not, as well as conflicts between states and the national government. These
lawsuits include at least one Zled by the states of Nebraska and Oklahoma against Colorado. Citing concerns over
cross-border trafZcking, difZculties with law enforcement, and violations of the Constitution’s supremacy clause,
Nebraska and Oklahoma have petitioned the U.S. Supreme Court to intervene and rule on the legality of
Colorado’s marijuana law, hoping to get it overturned.34 The Supreme Court has yet to take up the case.

How do you think differences among the states and differences between federal and state law regarding
marijuana use can affect the way a person is treated in court? What, if anything, should be done to rectify the
disparities in application of the law across the nation?

Where you are physically located can affect not only what is allowable and what is not, but also how cases are
judged. For decades, political scientists have conbrmed that political culture affects the operation of
government institutions, and when we add to that the differing political interests and cultures at work within
each state, we end up with court systems that vary greatly in their judicial and decision-making processes.35
Each state court system operates with its own individual set of biases. People with varying interests, ideologies,
behaviors, and attitudes run the disparate legal systems, so the results they produce are not always the same.
Moreover, the selection method for judges at the state and local level varies. In some states, judges are elected
rather than appointed, which can affect their rulings.

Just as the laws vary across the states, so do judicial rulings and interpretations, and the judges who make
them. That means there may not be uniform application of the law—even of the same law—nationwide. We are
somewhat bound by geography and do not always have the luxury of picking and choosing the venue for our
particular case. So, while having such a decentralized and varied set of judicial operations affects the kinds of
cases that make it to the courts and gives citizens alternate locations to get their case heard, it may also lead to
disparities in the way they are treated once they get there.

13.3 The Federal Court System

LEARNING OBJECTIVES
By the end of this section, you will be able to:
• Describe the differences between the U.S. district courts, circuit courts, and the Supreme Court
• Explain the signiZcance of precedent in the courts’ operations
• Describe how judges are selected for their positions

Congress has made numerous changes to the federal judicial system throughout the years, but the three-tiered
structure of the system is quite clear-cut today. Federal cases typically begin at the lowest federal level, the
district (or trial) court. Losing parties may appeal their case to the higher courts—brst to the circuit courts, or
U.S. courts of appeals, and then, if chosen by the justices, to the U.S. Supreme Court. Decisions of the higher
courts are binding on the lower courts. The precedent set by each ruling, particularly by the Supreme Court’s
decisions, both builds on principles and guidelines set by earlier cases and frames the ongoing operation of
the courts, steering the direction of the entire system. Reliance on precedent has enabled the federal courts to
operate with logic and consistency that has helped validate their role as the key interpreters of the Constitution
and the law—a legitimacy particularly vital in the United States where citizens do not elect federal judges and
justices but are still subject to their rulings.

THE THREE TIERS OF FEDERAL COURTS

There are ninety-four U.S. district courts in the bfty states and U.S. territories, of which eighty-nine are in the
states (at least one in each state). The others are in Washington, DC; Puerto Rico; Guam; the U.S. Virgin Islands;
and the Northern Mariana Islands. These are the trial courts of the national system, in which federal cases are
tried, witness testimony is heard, and evidence is presented. No district court crosses state lines, and a single
judge oversees each one. Some cases are heard by a jury, and some are not.
460 13 • The Courts

There are thirteen U.S. courts of appeals, or circuit courts, eleven across the nation and two in Washington,
DC (the DC circuit and the federal circuit courts), as illustrated in Figure 13.6. Each court is overseen by a
rotating panel of three judges who do not hold trials but instead review the rulings of the trial (district) courts
within their geographic circuit. As authorized by Congress, there are currently 179 such judges. The circuit
courts are often referred to as the intermediate appellate courts of the federal system, since their rulings can
be appealed to the U.S. Supreme Court. Moreover, different circuits can hold legal and cultural views, which
can lead to differing outcomes on similar legal questions. In such scenarios, claribcation from the U.S.
Supreme Court might be needed.

FIGURE 13.6 There are thirteen judicial circuits: eleven in the geographical areas marked on the map and two in
Washington, DC.

Today’s federal court system was not an overnight creation; it has been changing and transitioning for more
than two hundred years through various acts of Congress. Since district courts are not called for in Article III of
the Constitution, Congress established them and narrowly debned their jurisdiction, at brst limiting them to
handling only cases that arose within the district. Beginning in 1789 when there were just thirteen, the district
courts became the basic organizational units of the federal judicial system. Gradually over the next hundred
years, Congress expanded their jurisdiction, in particular over federal questions, which enables them to review
constitutional issues and matters of federal law. In the Judicial Code of 1911, Congress made the U.S. district
courts the sole general-jurisdiction trial courts of the federal judiciary, a role they had previously shared with
the circuit courts.36

The circuit courts started out as the trial courts for most federal criminal cases and for some civil suits,
including those initiated by the United States and those involving citizens of different states. But early on, they
did not have their own judges; the local district judge and two Supreme Court justices formed each circuit
court panel. (That is how the name “circuit” arose—judges in the early circuit courts traveled from town to
town to hear cases, following prescribed paths or circuits to arrive at destinations where they were needed.37)
Circuit courts also exercised appellate jurisdiction (meaning they receive appeals on federal district court

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 13.3 • The Federal Court System 461

cases) over most civil suits that originated in the district courts; however, that role ended in 1891, and their
appellate jurisdiction was turned over to the newly created circuit courts, or U.S. courts of appeals. The original
circuit courts—the ones that did not have “of appeals” added to their name—were abolished in 1911, fully
replaced by these new circuit courts of appeals.38

While we often focus primarily on the district and circuit courts of the federal system, other federal trial courts
exist that have more specialized jurisdictions, such as the Court of International Trade, Court of Federal
Claims, and U.S. Tax Court. Specialized federal appeals courts include the Court of Appeals for the Armed
Forces and the Court of Appeals for Veterans Claims. Cases from any of these courts may also be appealed to
the Supreme Court, although that result is very rare.

On the U.S. Supreme Court, there are nine justices—one chief justice and eight associate justices. Circuit courts
each contain three justices, whereas federal district courts have just one judge each. As the national court of
last resort for all other courts in the system, the Supreme Court plays a vital role in setting the standards of
interpretation that the lower courts follow. The Supreme Court’s decisions are binding across the nation and
establish the precedent by which future cases are resolved in all the system’s tiers.

The U.S. court system operates on the principle of stare decisis (Latin for stand by things decided), which
means that today’s decisions are based largely on rulings from the past, and tomorrow’s rulings rely on what is
decided today. Stare decisis is especially important in the U.S. common law system, in which the consistency of
precedent ensures greater certainty and stability in law and constitutional interpretation, and it also
contributes to the solidity and legitimacy of the court system itself. As former Supreme Court justice Benjamin
Cardozo summarized it years ago, “Adherence to precedent must then be the rule rather than the exception if
litigants are to have faith in the even-handed administration of justice in the courts.”39

LINK TO LEARNING
With a focus on federal courts and the public, this website reveals the different ways (https://openstax.org/l/
29fedcourtpub) the federal courts affect the lives of U.S. citizens and how those citizens interact with the
courts.

When the legal facts of one case are the same as the legal facts of another, stare decisis dictates that they
should be decided the same way, and judges are reluctant to disregard precedent without justibcation.
However, that does not mean there is no cexibility or that new precedents or rulings can never be created.
They often are. Certainly, court interpretations can change as times and circumstances change—and as the
courts themselves change when new judges are selected and take their place on the bench. For example, the
membership of the Supreme Court had changed entirely between Plessey v. Ferguson (1896), which brought
the doctrine of “separate but equal” and Brown v. Board of Education (1954), which required integration.40

THE SELECTION OF JUDGES

Judges fulbll a vital role in the U.S. judicial system and are carefully selected. At the federal level, the president
nominates a candidate to a judgeship or justice position, and the nominee must be conbrmed by a majority
vote in the U.S. Senate, a function of the Senate’s “advice and consent” role. All judges and justices in the
national courts serve lifetime terms of ofbce.

The president sometimes chooses nominees from a list of candidates maintained by the American Bar
Association, a national professional organization of lawyers.41 The president’s nominee is then discussed (and
sometimes hotly debated) in the Senate Judiciary Committee. After a committee vote, the candidate must be
conbrmed by a majority vote of the full Senate. He or she is then sworn in, taking an oath of ofbce to uphold the
Constitution and the laws of the United States.

When a vacancy occurs in a lower federal court, by custom, the president consults with that state’s U.S.
senators before making a nomination. Through such senatorial courtesy, senators exert considerable
462 13 • The Courts

incuence on the selection of judges in their state, especially those senators who share a party afbliation with
the president. In many cases, a senator can block a proposed nominee just by voicing opposition. Thus, a
presidential nominee typically does not get far without the support of the senators from the nominee’s home
state.

Most presidential appointments to the federal judiciary go unnoticed by the public, but when a president has
the rarer opportunity to make a Supreme Court appointment, it draws more attention. That is particularly true
now, when many people get their news primarily from the Internet and social media. It was not surprising to
see not only television news coverage but also blogs and tweets about President Obama’s nominees to the high
court, Sonia Sotomayor and Elena Kagan, or President Trump's nominees Neil Gorsuch, Brett Kavanaugh, and
Amy Coney Barrett. (Figure 13.7).

FIGURE 13.7 President Obama made two appointments to the U.S. Supreme Court, Justices Sonia Sotomayor in
2009 and Elena Kagan (a) in 2010. Since their appointments, both justices have made rulings consistent with a
more liberal ideology. President Trump made three appointments to the U.S. Supreme Court, Justice Neil Gorsuch
(b) in 2017, Justice Brett Kavanaugh in 2018, and, most recently, Amy Coney Barrett (c) in October 2020, solidifying
the Court's conservative majority. (credit a: modiZcation of "Elena Kagan, Associate Justice of the Supreme Court of
the United States" by Steve Petteway, Collection of the Supreme Court of the United States/Wikimedia Commons,
Public Domain; credit b: modiZcation of "Associate Justice Neil M. Gorsuch" by Franz Jantzen, Supreme Court of the
United States/Wikimedia Commons, Public Domain; credit c: modiZcation of "Barrett's ofZcial portrait" by United
States Supreme Court/Wikimedia Commons, Public Domain)

Presidential nominees for the courts typically recect the chief executive’s own ideological position. With a
conbrmed nominee serving a lifetime appointment, a president’s ideological legacy has the potential to live on
long after the end of the term.42 President Obama surely considered the ideological leanings of his two
Supreme Court appointees, and both Sotomayor and Kagan have consistently ruled in a more liberal
ideological direction. The timing of the two nominations also dovetailed nicely with the Democratic Party’s
gaining control of the Senate in the 111th Congress of 2009–2011, which helped guarantee their
conbrmations. Similarly, Republican Donald Trump was able to conbrm his three nominees (Neil Gorsuch,
Brett Kavanaugh, and Amy Coney Barrett) while Republicans controlled the Senate.

But some nominees turn out to be surprises or end up ruling in ways that the president who nominated them
did not anticipate. Democratic-appointed judges sometimes side with conservatives, just as Republican-
appointed judges sometimes side with liberals. Republican Dwight D. Eisenhower reportedly called his
nomination of Earl Warren as chief justice—in an era that saw substantial broadening of civil and criminal
rights—“the biggest damn fool mistake” he had ever made. Sandra Day O’Connor, nominated by Republican
president Ronald Reagan, often became a champion for women’s rights. David Souter, nominated by
Republican George H. W. Bush, more often than not sided with the Court’s liberal wing. Anthony Kennedy, a
Reagan appointee who retired in the summer of 2018, was notorious as the Court’s swing vote, sometimes
siding with the more conservative justices but sometimes not. Current chief justice John Roberts, though most
typically an ardent member of the Court’s more conservative wing, has twice voted to uphold provisions of the

Access for free at openstax.org.

 13.3 • The Federal Court System 463

Affordable Care Act.

One of the reasons the framers of the U.S. Constitution included the provision that federal judges would be
appointed for life was to provide the judicial branch with enough independence such that it could not easily be
incuenced by the political winds of the time. The nomination of Brett Kavanaugh tested that notion, as the
process became intensely partisan within the Senate and with the nominee himself. (Kavanaugh's previous
nomination to the U.S. Court of Appeals for the D.C. Circuit by President George W. Bush in 2003 also stalled for
three years over charges of partisanship.) Sharp divisions emerged early in the conbrmation process and an
upset Kavanaugh called out several Democratic senators in his impassioned testimony in front of the Judiciary
Committee. The high partisan drama of the Kavanaugh conbrmation compelled Chief Justice Roberts to
express concerns about the process and decry the threat of partisanship and concict of interest on the Court.

Once a justice has started a lifetime tenure on the Court and years begin to pass, many people simply forget
which president nominated him or her. For better or worse, sometimes it is only a controversial nominee who
leaves a president’s legacy behind. For example, the Reagan presidency is often remembered for two
controversial nominees to the Supreme Court—Robert Bork and Douglas Ginsburg, the former accused of
taking an overly conservative and “extremist view of the Constitution”43 and the latter of having used
marijuana while a student and then a professor at Harvard University (Figure 13.8). President George W.
Bush’s nomination of Harriet Miers was withdrawn in the face of criticism from both sides of the political
spectrum, questioning her ideological leanings and especially her qualibcations, suggesting she was not ready
for the job.44 After Miers’ withdrawal, the Senate went on to conbrm Bush’s subsequent nomination of Samuel
Alito, who remains on the Court today.

FIGURE 13.8 Presidential nominations to the Supreme Court sometimes go awry, as illustrated by the failed
nominations of Robert Bork (a), Douglas Ginsburg (b), and Harriet Miers (c).

Presidential legacy and controversial nominations notwithstanding, there is one certainty about the overall
look of the federal court system: What was once a predominately White, male, Protestant institution is today
much more diverse. As a look at Table 13.3 reveals, the membership of the Supreme Court has changed with
the passing years.

Supreme Court Justice Firsts

First Catholic Roger B. Taney (nominated in 1836)

First Jew Louis J. Brandeis (1916)

First (and only) former U.S. President William Howard Taft (1921)

TABLE 13.3
464 13 • The Courts

First African American Thurgood Marshall (1967)

First Woman Sandra Day O’Connor (1981)

First Hispanic American Sonia Sotomayor (2009)

TABLE 13.3

The lower courts are also more diverse today. In the past few decades, the U.S. judiciary has expanded to
include more women and minorities at both the federal and state levels.45 However, the number of women and
people of color on the courts still lags behind the overall number of White men. As of 2021, the federal
judiciary consists of 67 percent men and 33 percent women. In terms of race and ethnicity, 74 percent of
federal judges are White, 12 percent African American, 8 percent Latinx, and 4 percent Asian American.46

13.4 The Supreme Court

LEARNING OBJECTIVES
By the end of this section, you will be able to:
• Analyze the structure and important features of the Supreme Court
• Explain how the Supreme Court selects cases to hear
• Discuss the Supreme Court’s processes and procedures

The Supreme Court of the United States, sometimes abbreviated SCOTUS, is a one-of-a-kind institution. While
a look at the Supreme Court typically focuses on the nine justices themselves, they represent only the top layer
of an entire branch of government that includes many administrators, lawyers, and assistants who contribute
to and help run the overall judicial system. The Court has its own set of rules for choosing cases, and it follows
a unique set of procedures for hearing them. Its decisions not only affect the outcome of the individual case
before the justices, but they also create lasting impacts on legal and constitutional interpretation for the future.

THE STRUCTURE OF THE SUPREME COURT

The original court in 1789 had six justices, but Congress set the number at nine in 1869, and it has remained
there ever since. There is one chief justice, who is the lead or highest-ranking judge on the Court, and eight
associate justices. All nine serve lifetime terms, after successful nomination by the president and
conbrmation by the Senate. There was discussion of expanding the court during Franklin D. Roosevelt's
presidency and also during the 2020 presidential election. Nothing has come of court expansion, however.

The current court is fairly diverse in terms of gender, religion (Christians and Jews), ethnicity, and ideology, as
well as length of tenure. Some justices have served for three decades, whereas others were only recently
appointed by President Trump. Figure 13.9 lists the names of the nine justices serving on the Court as of June
2021 along with their year of appointment and the president who nominated them.

Access for free at openstax.org.

 13.4 • The Supreme Court 465

FIGURE 13.9 The current composition of the Supreme Court includes six conservatives and three liberals.

Currently, there are six justices who are considered part of the Court’s more conservative wing—Chief Justice
Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—while three are considered
more liberal-leaning—Justices Breyer, Sotomayor, and Kagan (Figure 13.10).

FIGURE 13.10 Justice Sonia Sotomayor (a) is part of the liberal wing of the current Supreme Court, whereas Justice
Brett Kavanaugh (b) represents the conservative wing. Chief Justice John Roberts (c) leads the court as an ardent
member of its more conservative wing but has recently expressed concern over partisanship on the court. (credit a:
modiZcation of "Sonia Sotomayor, U.S. Supreme Court justice" by Collection of the Supreme Court of the United
States, Steve Petteway/Wikimedia Commons, Public Domain; credit b: modiZcation of "Associate Justice Brett M.
Kavanaugh" by The Collection of the Supreme Court of the United States/Wikimedia Commons, Public Domain;
credit c: modiZcation of "John G. Roberts, Jr., Chief Justice of the United States of America (cropped version of
ofZcial photo)" by Steve Petteway/Wikimedia Commons, Public Domain)

LINK TO LEARNING
While not formally connected with the public the way elected leaders are, the Supreme Court
(https://openstax.org/l/29supremecourt) nonetheless offers visitors a great deal of information at its ofbcial
website.

For unofbcial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website
(https://openstax.org/l/29oyez) or SCOTUS (https://openstax.org/l/29scotusblog) blog.

In fact, none of the justices works completely in an ideological bubble. While their numerous opinions have
revealed certain ideological tendencies, they still consider each case as it comes to them, and they don’t always
rule in a consistently predictable or expected way. Furthermore, they don’t work exclusively on their own. Each
466 13 • The Courts

justice has three or four law clerks, recent law school graduates who temporarily work for the justice, do
research, help prepare the justice with background information, and assist with the writing of opinions. The
law clerks’ work and recommendations incuence whether the justices will choose to hear a case, as well as
how they will rule. As the proble below reveals, the role of the clerks is as signibcant as it is varied.

INSIDER PERSPECTIVE

Profile of a United States Supreme Court Clerk

A Supreme Court clerkship is one of the most sought-after legal positions, giving “thirty-six young lawyers each
year a chance to leave their Zngerprints all over constitutional law.”47 A number of current and former justices
were themselves clerks, including Chief Justice John Roberts, Justices Stephen Breyer and Elena Kagan, and
former chief justice William Rehnquist.

Supreme Court clerks are often reluctant to share insider information about their experiences, but it is always
fascinating and informative to hear about their jobs. Former clerk Philippa Scarlett, who worked for Justice
Stephen Breyer, describes four main responsibilities:48

Review the cases: Clerks participate in a “cert. pool” (short for writ of certiorari, a request that the lower court
send up its record of the case for review) and make recommendations about which cases the Court should
choose to hear.

Prepare the justices for oral argument: Clerks analyze the Zled briefs (short arguments explaining each party’s
side of the case) and the law at issue in each case waiting to be heard.

Research and draft judicial opinions: Clerks do detailed research to assist justices in writing an opinion,
whether it is the majority opinion or a dissenting or concurring opinion.

Help with emergencies: Clerks also assist the justices in deciding on emergency applications to the Court, many
of which are applications by incarcerated people to stay their death sentences and are sometimes submitted
within hours of a scheduled execution.

Explain the role of law clerks in the Supreme Court system. What is your opinion about the role they play and the
justices’ reliance on them?

HOW THE SUPREME COURT SELECTS CASES

The Supreme Court begins its annual session on the brst Monday in October and ends late the following June.
Every year, there are literally thousands of people who would like to have their case heard before the Supreme
Court, but the justices will select only a handful to be placed on the docket, which is the list of cases scheduled
on the Court’s calendar. The Court typically accepts fewer than 2 percent of the as many as ten thousand cases
it is asked to review every year.49

Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade, for
example.50 For a case on appeal, you can tell which party lost at the lower level of court by looking at the case
name: The party unhappy with the decision of the lower court is the one bringing the appeal and is thus the
petitioner, or the brst-named party in the case. For example, in Brown v. Board of Education (1954), Oliver
Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination
based on racial segregation.

Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari, a request that the lower
court send up its record of the case for review. Once a writ of certiorari (cert. for short) has been granted, the
case is scheduled on the Court’s docket. The Supreme Court exercises discretion in the cases it chooses to
hear, but four of the nine justices must vote to accept a case. This is called the Rule of Four.

Access for free at openstax.org.

 13.4 • The Supreme Court 467

For decisions about cert., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari) takes
precedence.51 The Court is more likely to grant certiorari when there is a concict on an issue between or
among the lower courts. Examples of concicts include (1) concicting decisions among different courts of
appeals on the same matter, (2) decisions by an appeals court or a state court concicting with precedent, and
(3) state court decisions that concict with federal decisions. Occasionally, the Court will fast-track a case that
has special urgency, such as Bush v. Gore in the wake of the 2000 election.52

Past research indicated that the amount of interest-group activity surrounding a case before it is granted cert.
has a signibcant impact on whether the Supreme Court puts the case on its agenda. The more activity, the
more likely the case will be placed on the docket.53 But more recent research broadens that perspective,
suggesting that too much interest-group activity when the Court is considering a case for its docket may
actually have diminishing impact and that external actors may have less incuence on the work of the Court
than they have had in the past.54 Still, the Court takes into consideration external incuences, not just from
interest groups but also from the public, from media attention, and from a very key governmental actor—the
solicitor general.

The solicitor general is the lawyer who represents the federal government before the Supreme Court: He or
she decides which cases (in which the United States is a party) should be appealed from the lower courts and
personally approves each one presented (Figure 13.11). Most of the cases the solicitor general brings to the
Court will be given a place on the docket. About two-thirds of all Supreme Court cases involve the federal
government.55

The solicitor general determines the position the government will take on a case. The attorneys of the ofbce
prepare and ble the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments
before the Court.

FIGURE 13.11 Thurgood Marshall (a), who later served on the Supreme Court, was appointed solicitor general by
Lyndon Johnson and was the Zrst African American to hold the post. Noel Francisco (b) was the forty-seventh
solicitor general of the United States, starting his term of ofZce in September 2017.

In other cases in which the United States is not the petitioner or the respondent, the solicitor general may
choose to intervene or comment as a third party. Before a case is granted cert., the justices will sometimes ask
the solicitor general to comment on or ble a brief in the case, indicating their potential interest in getting it on
the docket. The solicitor general may also recommend that the justices decline to hear a case. Though research
has shown that the solicitor general’s special incuence on the Court is not unlimited, it remains quite
signibcant. In particular, the Court does not always agree with the solicitor general, and “while justices are not
lemmings who will unwittingly fall off legal cliffs for tortured solicitor general recommendations, they
nevertheless often go along with them even when we least expect them to.”56

Some have credited Donald B. Verrilli, the solicitor general under President Obama, with holding special sway
over the bve-justice majority ruling on same-sex marriage in June 2015. Indeed, his position that denying
same-sex couples the right to marry would mean “thousands and thousands of people are going to live out
their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships”
468 13 • The Courts

became a foundational point of the Court’s opinion, written by then-Justice Anthony Kennedy.57 With such
power over the Court, the solicitor general is sometimes referred to as “the tenth justice.”

SUPREME COURT PROCEDURES

Once a case has been placed on the docket, briefs, or short arguments explaining each party’s view of the case,
must be submitted—brst by the petitioner putting forth the case, then by the respondent. After initial briefs
have been bled, both parties may ble subsequent briefs in response to the brst. Likewise, people and groups
that are not party to the case but are interested in its outcome may ble an amicus curiae (“friend of the court”)
brief giving their opinion, analysis, and recommendations about how the Court should rule. Interest groups in
particular can become heavily involved in trying to incuence the judiciary by bling amicus briefs—both before
and after a case has been granted cert. And, as noted earlier, if the United States is not party to a case, the
solicitor general may ble an amicus brief on the government’s behalf.

With briefs bled, the Court hears oral arguments in cases from October through April. The proceedings are
quite ceremonial. When the Court is in session, the robed justices make a formal entrance into the courtroom
to a standing audience and the sound of a banging gavel. The Court’s marshal presents them with a traditional
chant: “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States.
Oyez! Oyez! Oyez! [Hear ye!] All persons having business before the Honorable, the Supreme Court of the
United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the
United States and this Honorable Court!”58 It has not gone unnoticed that the Court, which has defended the
First Amendment’s religious protection and the traditional separation of church and state, opens its every
public session with a mention of God.

During oral arguments, each side’s lawyers have thirty minutes to make their legal case, though the justices
often interrupt the presentations with questions. The justices consider oral arguments not as a forum for a
lawyer to restate the merits of the case as written in the briefs, but as an opportunity to get answers to any
questions they may have.59 When the United States is party to a case, the solicitor general (or one of the
solicitor general's assistants) will argue the government’s position; even in other cases, the solicitor general
may still be given time to express the government’s position on the dispute.

When oral arguments have been concluded, the justices have to decide the case, and they do so in conference,
which is held in private twice a week when the Court is in session and once a week when it is not. The
conference is also a time to discuss petitions for certiorari, but for those cases already heard, each justice may
state their views on the case, ask questions, or raise concerns. The chief justice speaks brst about a case, then
each justice speaks in turn, in descending order of seniority, ending with the most recently appointed
justice.60 The judges take an initial vote in private before the ofbcial announcement of their decisions is made
public.

Oral arguments are open to the public, but cameras are not allowed in the courtroom, so the only picture we
get is one drawn by an artist’s hand, an illustration or rendering. Cameras seem to be everywhere today,
especially to provide security in places such as schools, public buildings, and retail stores, so the lack of live
coverage of Supreme Court proceedings may seem unusual or old-fashioned. Over the years, groups have
called for the Court to let go of this tradition and open its operations to more “sunshine” and greater
transparency. Nevertheless, the justices have resisted the pressure and remain neither blmed nor
photographed during oral arguments.61

13.5 Judicial Decision-Making and Implementation by the Supreme Court

LEARNING OBJECTIVES
By the end of this section, you will be able to:
• Describe how the Supreme Court decides cases and issues opinions
• Identify the various influences on the Supreme Court
• Explain how the judiciary is checked by the other branches of government

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 13.5 • Judicial Decision-Making and Implementation by the Supreme Court 469

The courts are the least covered and least publicly known of the three branches of government. The inner
workings of the Supreme Court and its day-to-day operations certainly do not get as much public attention as
its rulings, and only a very small number of its announced decisions are enthusiastically discussed and
debated. The Court’s 2015 decision on same-sex marriage was the exception, not the rule, since most court
opinions are bled away quietly in the United States Reports, sought out mostly by judges, lawyers, researchers,
and others with a particular interest in reading or studying them.

Thus, we sometimes envision the justices formally robed and cloistered away in their chambers, unaffected by
the world around them, but the reality is that they are not that isolated, and a number of outside factors
incuence their decisions. Though they lack their own mechanism for enforcement of their rulings and their
power remains checked and balanced by the other branches, the effect of the justices’ opinions on the
workings of government, politics, and society in the United States is much more signibcant than the attention
they attract might indicate.

JUDICIAL OPINIONS
Every Court opinion sets precedent for the future. The Supreme Court’s decisions are not always unanimous,
however; the published majority opinion, or explanation of the justices’ decision, is the one with which a
majority of the nine justices agree. It can represent a vote as narrow as bve in favor to four against. A tied vote
is rare but can occur at a time of vacancy, absence, or abstention from a case, perhaps where there is a concict
of interest. In the event of a tied vote, the decision of the lower court stands.

Most typically, though, the Court will put forward a majority opinion. If in the majority, the chief justice decides
who will write the opinion. If not, then the most senior justice ruling with the majority chooses the writer.
Likewise, the most senior justice in the dissenting group can assign a member of that group to write the
dissenting opinion; however, any justice who disagrees with the majority may write a separate dissenting
opinion. If a justice agrees with the outcome of the case but not with the majority’s reasoning in it, that justice
may write a concurring opinion.

Court decisions are released at different times throughout the Court’s term, but all opinions are announced
publicly before the Court adjourns for the summer. Some of the most controversial and hotly debated rulings
are released near or on the last day of the term and thus are avidly anticipated (Figure 13.12).

FIGURE 13.12 On June 26, 2015, supporters of marriage equality in front of the U.S. Supreme Court building
eagerly await the announcement of a decision in the case of Obergefell v. Hodges (2015). (credit: Matt Popovich)

LINK TO LEARNING
One of the most prominent writers (https://openstax.org/l/29fmpubpieces) on judicial decision-making in the
U.S. system is Dr. Forrest Maltzman of George Washington University. Maltzman’s articles, chapters, and
manuscripts, along with articles by other prominent authors in the beld, are downloadable at this site.
470 13 • The Courts

INFLUENCES ON THE COURT

Many of the same players who incuence whether the Court will grant cert. in a case, discussed earlier in this
chapter, also play a role in its decision-making, including law clerks, the solicitor general, interest groups, and
the mass media. But additional legal, personal, ideological, and political incuences weigh on the Supreme
Court and its decision-making process. On the legal side, courts, including the Supreme Court, cannot make a
ruling unless they have a case before them, and even with a case, courts must rule on its facts. Although the
courts’ role is interpretive, judges and justices are still constrained by the facts of the case, the Constitution,
the relevant laws, and the courts’ own precedent.

Justices’ decisions are incuenced by how they debne their role as a jurist, with some justices believing strongly
in judicial activism, or the need to defend individual rights and liberties, and they aim to stop actions and laws
by other branches of government that they see as infringing on these rights. A judge or justice who views the
role with an activist lens is more likely to use judicial power to broaden personal liberty, justice, and equality.
Still others believe in judicial restraint, which leads them to defer decisions (and thus policymaking) to the
elected branches of government and stay focused on a narrower interpretation of the Bill of Rights. These
justices are less likely to strike down actions or laws as unconstitutional and are less likely to focus on the
expansion of individual liberties. While it is typically the case that liberal actions are described as
unnecessarily activist, conservative decisions can be activist as well.

Critics of the judiciary often deride activist courts for involving themselves too heavily in matters they believe
are better left to the elected legislative and executive branches. However, as Justice Anthony Kennedy has said,
“An activist court is a court that makes a decision you don’t like.”62

Justices’ personal beliefs and political attitudes also matter in their decision-making. Although we may prefer
to believe a justice can leave political ideology or party identibcation outside the doors of the courtroom, the
reality is that a more liberal-thinking judge may tend to make more liberal decisions and a more conservative-
leaning judge may tend toward more conservative ones. Although this is not true 100 percent of the time, and
an individual’s decisions are sometimes a cause for surprise, the incuence of ideology is real, and at a
minimum, it often guides presidents to aim for nominees who mirror their own political or ideological image.
It is likely not possible to bnd a potential justice who is completely apolitical.

And the courts themselves are affected by another “court”—the court of public opinion. Though somewhat
isolated from politics and the volatility of the electorate, justices may still be swayed by special-interest
pressure, the leverage of elected or other public ofbcials, the mass media, and the general public. As times
change and the opinions of the population change, the court’s interpretation is likely to keep up with those
changes, lest the courts face the danger of losing their own relevance.

Take, for example, rulings on sodomy laws: In 1986, the Supreme Court upheld the constitutionality of the
State of Georgia’s ban on sodomy,63 but it reversed its decision seventeen years later, invalidating sodomy laws
in Texas and thirteen other states.64 No doubt the Court considered what had been happening nationwide: In
the 1960s, sodomy was banned in all the states. By 1986, that number had been reduced by about half. By
2002, thirty-six states had repealed their sodomy laws, and most states were only selectively enforcing them.
Changes in state laws, along with an emerging LGBTQ movement, no doubt swayed the Court and led it to the
reversal of its earlier ruling with the 2003 decision, Lawrence v. Texas (Figure 13.13).65 This decision was an
especially important one because it meant all prior and existing laws that formally made same-sex
relationships illegal were null and void.

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 13.5 • Judicial Decision-Making and Implementation by the Supreme Court 471

FIGURE 13.13 The Supreme Court’s 2003 decision in Lawrence v. Texas that overturned an earlier ruling on
sodomy made national headlines and shows that Court rulings can change with the times.

Heralded by advocates of gay rights as important progress toward greater equality, the ruling in Lawrence v.
Texas illustrates that the Court is willing to recect upon what is going on in the world. Even with their heavy
reliance on precedent and reluctance to throw out past decisions, justices are not completely incexible and do
tend to change and evolve with the times.

GET CONNECTED!
The Importance of Jury Duty
Since judges and justices are not elected, we sometimes consider the courts removed from the public; however, this
is not always the case, and there are times when average citizens may get involved with the courts Zrsthand as part
of their decision-making process at either the state or federal levels. At some point, if you haven’t already been
called, you may receive a summons for jury duty from your local court system. You may be asked to serve on federal
jury duty, such as U.S. district court duty or federal grand jury duty, but service at the local level, in the state court
system, is much more common.

While your Zrst reaction may be to start planning a way to get out of it, participating in jury service is vital to the
operation of the judicial system, because it provides individuals in court the chance to be heard and to be tried fairly
by a group of their peers. And jury duty has beneZts for those who serve as well. You will no doubt come away better
informed about how the judicial system works and ready to share your experiences with others. Who knows? You
might even get an unexpected surprise, as some citizens in Dallas, Texas did recently when former President George
W. Bush showed up to serve jury duty with them.

Have you ever been called to jury duty? Describe your experience. What did you learn about the judicial process?
What advice would you give to someone called to jury duty for the Zrst time? If you’ve never been called to jury duty,
what questions do you have for those who have?

THE COURTS AND THE OTHER BRANCHES OF GOVERNMENT

Both the executive and legislative branches check and balance the judiciary in many different ways. The
president can leave a lasting imprint on the bench through nominations, even long after leaving ofbce. The
president may also incuence the Court through the solicitor general’s involvement or through the submission
of amicus briefs in cases in which the United States is not a party.

President Franklin D. Roosevelt even attempted to stack the odds in his favor in 1937, with a “court-packing
scheme” in which he tried to get a bill passed through Congress that would have reorganized the judiciary and
enabled him to appoint up to six additional judges to the high court (Figure 13.14). The bill never passed, but
other presidents have also been accused of trying similar moves at different courts in the federal system.
472 13 • The Courts

FIGURE 13.14 A 1937 cartoon mocks the court-packing plan of President Franklin D. Roosevelt (depicted on the far
right). Roosevelt was not successful in increasing the number of justices on the Supreme Court, and it remains at
nine.

Likewise, Congress has checks on the judiciary. It retains the power to modify the federal court structure and
its appellate jurisdiction, and the Senate may accept or reject presidential nominees to the federal courts.
Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a
constitutional amendment process.

But the most signibcant check on the Supreme Court is executive and legislative leverage over the
implementation and enforcement of its rulings. This process is called judicial implementation. While it is
true that courts play a major role in policymaking, they have no mechanism to make their rulings a reality.
Remember it was Alexander Hamilton in Federalist No. 78 who remarked that the courts had “neither force
nor will, but merely judgment.” And even years later, when the 1832 Supreme Court ruled the State of Georgia’s
seizing of Native American lands unconstitutional,66 President Andrew Jackson is reported to have said, “John
Marshall has made his decision, now let him enforce it,” and the Court’s ruling was basically ignored.67
Abraham Lincoln, too, famously ignored Chief Justice Roger B. Taney’s order bnding unconstitutional Lincoln’s
suspension of habeas corpus rights in 1861, early in the Civil War. Thus, court rulings matter only to the extent
they are heeded and followed.

The Court relies on the executive to implement or enforce its decisions and on the legislative branch to fund
them. As the Jackson and Lincoln stories indicate, presidents may simply ignore decisions of the Court, and
Congress may withhold funding needed for implementation and enforcement. Fortunately for the courts, these
situations rarely happen, and the other branches tend to provide support rather than opposition. In general,
presidents have tended to see it as their duty to both obey and enforce Court rulings, and Congress seldom
takes away the funding needed for the president to do so.

For example, in 1957, President Dwight D. Eisenhower called out the military by executive order to enforce the
Supreme Court’s order to racially integrate the public schools in Little Rock, Arkansas. Eisenhower told the
nation: “Whenever normal agencies prove inadequate to the task and it becomes necessary for the executive
branch of the federal government to use its powers and authority to uphold federal courts, the president’s
responsibility is inescapable.”68 Executive Order 10730 nationalized the Arkansas National Guard to enforce
desegregation because the governor refused to use the state National Guard troops to protect the Black
students trying to enter the school (Figure 13.15).

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 13.5 • Judicial Decision-Making and Implementation by the Supreme Court 473

FIGURE 13.15 President Eisenhower sent federal troops to escort nine Black students (the “Little Rock Nine”) into
an Arkansas high school in 1957 to enforce the Supreme Court’s order outlawing racial segregation in public
schools.

So what becomes of court decisions is largely due to their credibility, their viability, and the assistance given by
the other branches of government. It is also somewhat a matter of tradition and the way the United States has
gone about its judicial business for more than two centuries. Although not everyone agrees with the decisions
made by the Court, rulings are generally accepted and followed, and the Court is respected as the key
interpreter of the laws and the Constitution. Over time, its rulings have become yet another way policy is
legitimately made and justice more adequately served in the United States.
474 13 • Key Terms

Key Terms
amicus curiae literally a “friend of the court” and used for a brief bled by someone who is interested in but
not party to a case
appellate court a court that reviews cases already decided by a lower or trial court and that may change the
lower court’s decision
appellate jurisdiction the power of a court to hear a case on appeal from a lower court and possibly change
the lower court’s decision
associate justice a member of the Supreme Court who is not the chief justice
brief a written legal argument presented to a court by one of the parties in a case
chief justice the highest-ranking justice on the Supreme Court
circuit courts the appeals (appellate) courts of the federal court system that review decisions of the lower
(district) courts; also called courts of appeals
civil law a non-criminal law debning private rights and remedies
common law the pattern of law developed by judges through case decisions largely based on precedent
concurring opinion an opinion written by a justice who agrees with the Court’s majority opinion but has
different reasons for doing so
conference closed meeting of the justices to discuss cases on the docket and take an initial vote
courts of appeals the appellate courts of the federal court system that review decisions of the lower
(district) courts; also called circuit courts
criminal law a law that prohibits actions that could harm or endanger others, and establishes punishment
for those actions
dissenting opinion an opinion written by a justice who disagrees with the majority opinion of the Court
district courts the trial courts of the federal court system where cases are tried, evidence is presented, and
witness testimony is heard
docket the list of cases pending on a court’s calendar
dual court system the division of the courts into two separate systems, one federal and one state, with each
of the bfty states having its own courts
judicial activism a judicial philosophy in which a justice is more likely to overturn decisions or rule actions
by the other branches unconstitutional, especially in an attempt to broaden individual rights and liberties
judicial restraint a judicial philosophy in which a justice is more likely to let stand the decisions or actions
of the other branches of government
judicial review the power of the courts to review actions taken by the other branches of government and
the states and to rule on whether those actions are constitutional
majority opinion an opinion of the Court with which more than half the nine justices agree
Marbury v. Madison the 1803 Supreme Court case that established the courts’ power of judicial review and
the brst time the Supreme Court ruled an act of Congress to be unconstitutional
oral argument words spoken before the Supreme Court (usually by lawyers) explaining the legal reasons
behind their position in a case and why it should prevail
original jurisdiction the power of a court to hear a case for the brst time
precedent the principles or guidelines established by courts in earlier cases that frame the ongoing
operation of the courts, steering the direction of the entire system
Rule of Four a Supreme Court custom in which a case will be heard when four justices decide to do so
senatorial courtesy an unwritten custom by which the president consults the senators in the state before
nominating a candidate for a federal vacancy there, particularly for court positions
solicitor general the lawyer who represents the federal government and argues some cases before the
Supreme Court
stare decisis the principle by which courts rely on past decisions and their precedents when making
decisions in new cases
trial court the level of court in which a case starts or is brst tried

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 13 • Summary 475

writ of certiorari an order of the Supreme Court calling up the records of the lower court so a case may be
reviewed; sometimes abbreviated cert.

Summary
13.1 Guardians of the Constitution and Individual Rights
From humble beginnings, the judicial branch has evolved over the years to a signibcance that would have been
difbcult for the Constitution’s framers to envision. While they understood and prioritized the value of an
independent judiciary in a common law system, they could not have predicted the critical role the courts
would play in the interpretation of the Constitution, our understanding of the law, the development of public
policy, and the preservation and expansion of individual rights and liberties over time.

13.2 The Dual Court System

The U.S. judicial system features a dual court model, with courts at both the federal and state levels, and the
U.S. Supreme Court at the top. While cases may sometimes be eligible for both state and federal review, each
level has its own distinct jurisdiction. There are trial and appellate courts at both levels, but there are also
remarkable differences among the states in their laws, politics, and culture, meaning that no two state court
systems are exactly alike. The diversity of courts across the nation can have both positive and negative effects
for citizens, depending on their situation. While it provides for various opportunities for an issue or interest to
be heard, it may also lead to case-by-case treatment of individuals, groups, or issues that is not always the
same or even-handed across the nation.

13.3 The Federal Court System

The structure of today’s three-tiered federal court system, largely established by Congress, is quite clear-cut.
The system’s reliance on precedent ensures a consistent and stable institution that is still capable of slowly
evolving over the years—such as by increasingly rececting the diverse population it serves. Presidents hope
their judicial nominees will make rulings consistent with the chief executive’s own ideological leanings. But
the lifetime tenure of federal court members gives them the cexibility to act in ways that may or may not
recect what their nominating president intended. Perfect alignment between nominating president and justice
is not expected; a judge might be liberal on most issues but conservative on others, or vice versa. However,
presidents have sometimes been surprised by the decisions made by their nominees, such as President
Eisenhower was by Justice Earl Warren and President Reagan by Justice Anthony Kennedy.

13.4 The Supreme Court

A unique institution, the U.S. Supreme Court today is an interesting mix of the traditional and the modern. On
one hand, it still holds to many of the formal traditions, processes, and procedures it has followed for many
decades. Its public proceedings remain largely ceremonial and are never blmed or photographed. At the same
time, the Court has taken on new cases involving contemporary matters before a nine-justice panel that is
more diverse today than ever before. When considering whether to take on a case and then later when ruling
on it, the justices rely on a number of internal and external players who assist them with and incuence their
work, including, but not limited to, their law clerks, the U.S. solicitor general, interest groups, and the mass
media.

13.5 Judicial Decision-Making and Implementation by the Supreme Court

Like the executive and legislative branches, the judicial system wields power that is not absolute. There remain
many checks on its power and limits to its rulings. Judicial decisions are also affected by various internal and
external factors, including legal, personal, ideological, and political incuences. To stay relevant, Court
decisions have to keep up with the changing times, and the justices’ decision-making power is subject to the
support afforded by the other branches of government in implementation and enforcement. Nevertheless, the
courts have evolved into an indispensable part of our government system—a separate and coequal branch that
476 13 • Review Questions

interprets law, makes policy, guards the Constitution, and protects individual rights.

Review Questions
1. The Supreme Court’s power of judicial review ________.
a. is given to it in the original constitution
b. enables it to declare acts of the other branches unconstitutional
c. allows it to hear cases
d. establishes the three-tiered court system

2. The Supreme Court most typically functions as ________.

a. a district court
b. a trial court
c. a court of original jurisdiction
d. an appeals court

3. In Federalist No. 78, Alexander Hamilton characterized the judiciary as the ________ branch of
government.
a. most unnecessary
b. strongest
c. least dangerous
d. most political

4. Explain one positive and one negative aspect of the lifetime term of ofbce for judges and justices in the
federal court system. Why do you believe the constitution’s framers chose lifetime terms?

5. What do you bnd most signibcant about having a common law system?

6. Of all the court cases in the United States, the majority are handled ________.
a. by the U.S. Supreme Court
b. at the state level
c. by the circuit courts
d. by the U.S. district courts

7. Both state and federal courts hear matters that involve ________.
a. civil law only
b. criminal law only
c. both civil and criminal law
d. neither civil nor criminal law

8. A state case is more likely to be heard by the federal courts when ________.
a. it involves a federal question
b. a governor requests a federal court hearing
c. it involves a criminal matter
d. the state courts are unable to come up with a decision

9. The existence of the dual court system is an unnecessary duplication to some but benebcial to others.
Provide at least one positive and one negative characteristic of having overlapping court systems in the
United States.

10. Which court would you consider to be closest to the people? Why?

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 13 • Review Questions 477

11. Besides the Supreme Court, there are lower courts in the national system called ________.
a. state and federal courts
b. district and circuit courts
c. state and local courts
d. civil and common courts

12. In standing by precedent, a judge relies on the principle of ________.

a. stare decisis
b. amicus curiae
c. judicial activism
d. laissez-faire

13. The justices of the Supreme Court are ________.

a. elected by citizens
b. chosen by the Congress
c. conbrmed by the president
d. nominated by the president and conbrmed by the Senate

14. Do you believe federal judges should be elected rather than appointed? Why or why not?

15. When it comes to blling judicial positions in the federal courts, do you believe race, gender, religion, and
ethnicity should matter? Why or why not?

16. The Supreme Court consists of ________.

a. nine associate justices
b. one chief justice and eight associate justices
c. thirteen judges
d. one chief justice and bve associate justices

17. A case will be placed on the Court’s docket when ________ justices agree to do so.
a. four
b. bve
c. six
d. all

18. One of the main ways interest groups participate in Supreme Court cases is by ________.
a. giving monetary contributions to the justices
b. lobbying the justices
c. bling amicus curiae briefs
d. protesting in front of the Supreme Court building

19. The lawyer who represents the federal government and argues cases before the Supreme Court is the
________.
a. solicitor general
b. attorney general
c. U.S. attorney
d. chief justice

20. What do the appointments of the Supreme Court’s three newest justices, Neil Gorsuch, Brett Kavanaugh,
and Amy Coney Barrett reveal about the changing selection process for the high court?
478 13 • Critical Thinking Questions

21. When using judicial restraint, judges will usually ________.

a. refuse to rule on a case
b. overrule any act of Congress they don’t like
c. defer to the decisions of the elected branches of government
d. make mostly liberal rulings

22. When a Supreme Court ruling is made, justices may write a ________ to show they agree with the majority
but for different reasons.
a. brief
b. dissenting opinion
c. majority opinion
d. concurring opinion

23. Which of the following is a check that the legislative branch has over the courts?
a. Senate approval is needed for the appointment of justices and federal judges.
b. Congress may rewrite a law the courts have declared unconstitutional.
c. Congress may withhold funding needed to implement court decisions.
d. all of the above

24. What are the core factors that determine how judges decide in court cases?

25. Discuss some of the difbculties involved in the implementation and enforcement of judicial decisions.

Critical Thinking Questions

26. In what ways is the court system better suited to protect the individual than are the elected branches of
the government?

27. On what types of policy issues do you expect the judicial branch to be especially powerful, and on which
do you expect it to exert less power?

28. Discuss the relationship of the judicial branch to the other branches of government. In what ways is the
judicial more powerful than other branches? In what ways is SCOTUS less powerful than other branches?
Explain.

29. What should be the most important considerations when blling judge and justice positions at the federal
level? Why?

30. The shirking of jury duty is a real problem in the United States. Give some reasons for this and suggest
what can be done about it.

31. Take a closer look at some of the operational norms of the Supreme Court, such as the Rule of Four or the
prohibition on cameras in the courtroom. What is your opinion about them as long-standing traditions,
and which (if any), do you believe should be changed? Explain your answer.

Suggestions for Further Study

Books written by current and former justices:

Breyer, Stephen. 2006. Active Liberty: Interpreting the Democratic Constitution. New York: Vintage; 2010;
Making Democracy Work: A Judge’s View. New York: Knopf.

O’Connor, Sandra Day. 2004. The Majesty of the Law: Recections of a Supreme Court Justice. New York:
Random House.

Rehnquist, William. 2002. The Supreme Court. New York: Vintage.

Access for free at openstax.org.

 13 • Suggestions for Further Study 479

Scalia, Antonin. 1998. A Matter of Interpretation: The Federal Courts and the Law. Princeton, NJ: Princeton
University Press.

Sotomayor, Sonia. 2014. My Beloved World. New York: Vintage Books.

Stevens, John Paul. 2011. Five Chiefs: A Supreme Court Memoir. New York: Little, Brown.

Thomas, Clarence. 2008. My Grandfather’s Son: A Memoir. New York: Harper.

Books about the U.S. court system:

Coyle, Marcia. 2013. The Roberts Court: The Struggle for the Constitution. New York: Simon and Schuster.

Ferguson, Andrew G. 2013. Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action. New York: New
York University Press.

Millhiser, Ian. 2015. Injustices: The Supreme Court’s History of Comforting the Comfortable and Afcicting the
Afcicted. New York: Nation Books.

Peppers, Todd C., and Artemus Ward. 2012. In Chambers: Stories of Supreme Court Law Clerks and Their
Justices. Charlottesville: University of Virginia Press.

Tobin, Jeffrey. 2012. The Oath: The Obama White House and the Supreme Court. New York: Doubleday.

Vile, John R. 2014. Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law,
16th ed. Lanham: Rowman & Littlebeld.

Films:

1981. The First Monday in October.

1993. The Pelican Brief.

HBO. 2000. Recount.

2015. Conbrmation.

2015. On the Basis of Sex.

480 13 • Suggestions for Further Study

Access for free at openstax.org.