UNIT 4: BRANCHES OF GOVERNMENT

U.S. GOVERNMENT | Peterson

Chapter 13 The Courts

The Common Law Tradition
The concept of common law originated in England as judge-made law that grew out of judicial decisions
shaped by prevailing custom. This concept has influenced the American judicial system. The two main
components of common law are precedent, which is a court decision that will bear on subsequent cases,
and stare decisis, which means to stand on decided cases.

The Federal Court System

The United States has a dual court system made up of the federal court structure and the courts of the
fifty states. The federal judicial system is structured like a pyramid. Most cases start at the base of the
pyramid in the federal district courts. This is the part of the system that allows for a trial by jury. Parties
who lose at the district court level can appeal to the next level of the federal judicial system, the circuit
courts of appeals. At this level there are no witnesses or juries. Appellate argument involves the
attorney for the losing party in the court below appearing before a group of judges and asking that the
lower court decision be reversed. The winning party below appears and argues that the lower court
decision should be upheld. Parties who lose at the circuit court level can appeal their case to the United
States Supreme Court. The United States Supreme Court is the only court created in the Constitution.
In addition to the federal judicial system each state has its own judicial system. These state judicial
systems mirror the structure of the federal system, with trial courts at the beginning of the process,
courts of appeals at the next level and at the top of the process a state supreme court (although some
states refer to their highest courts with different names). If state courts rule on issues covered by the
United States Constitution, the United States Supreme Court can ultimately review their decisions.
Finally, there are some specialized federal courts that have taken on great significance in the war against
terrorism. The Foreign Intelligence Surveillance Act (FISA) was enacted in 1978 to authorize surveillance
on spies in situations that needed to involve a greater level of secrecy than normal criminal cases. After
9/11 these FISA courts were given even greater latitude to authorize surveillance on terrorist suspects.
The two parties in a lawsuit are the plaintiff, who initiates the suit, and the defendant, the party against
whom the suit is brought. In recent years, interest groups have become more important in lawsuits
because they litigate, or bring the case to trial. Interest groups can also influence the judicial process by
filing amicus curiae briefs, which express a groups viewpoint on the case. Class-action suits are also
brought by groups to benefit all citizens who are similarly situated in the harm they have suffered.

The Supreme Court at Work

The Supreme Court term begins on the first Monday in October and lasts until the work is completed in
the summer. The Court sets its own agenda. It receives thousands of requests to consider cases but
actually decides a very small number of those cases. Several factors affect the Courts decision to hear a
case. The Supreme Court only considers cases involving significant issues affecting public policy. If
lower federal courts have ruled in a contradictory manner on constitutional questions, there will be
great pressure for the Supreme Court to resolve the conflict. Frequently the Court is responsive to the
recommendation of the solicitor general of the United States to review a case. The solicitor general
represents the government in cases before the Supreme Court and is sometimes referred to as the
tenth justice. If four members of the Supreme Court vote to hear a case, then the entire Court will
consider the case and will issue a writ of certiorari.

UNIT 4: BRANCHES OF GOVERNMENT

U.S. GOVERNMENT | Peterson

Both sides in the case submit briefs to the Court, written statements of the attorneys cases presenting
argumentation on how the Court should decide the issues involved in the appeal. The next step is oral
argument before the Court. Although some imagine lawyers lecturing the members of the Court at this
stage, this is an opportunity for the justices to fire questions at the attorneys. After oral argument the
justices meet in conference to discuss the arguments and decide the case. However, the Supreme
Court does not simply decide a case. It explains its decision, and the explanation presented frequently
has a greater impact than the decision itself. The explanation of the Courts decision is contained in the
majority opinion. If a member of the Court agrees with the result reached by the majority opinion but
disagrees with the reasoning employed, that member can write a concurring opinion. Finally, those
members of the Court who disagree with the majority completely can write a dissenting opinion, in
which they signal to the legal community and to the nation their belief that the Court made a mistake in
this case and their hope that parties will challenge this precedent

The Selection of Federal Judges

All federal judges are appointed by the president with the advice and consent of the Senate. The
concept of senatorial courtesy allows a senator from the presidents political party to exercise influence
over the nomination of federal district court judges in his or her state. Making appointments to the
Supreme Court ranks among the most important actions taken by a president. Ideology plays a major
role in the selection process for federal judges. Most presidents select judges from their own political
party who share their own ideology.

Policymaking and the Courts

The battles over judicial appointments reflect the growing importance of the judiciary in policymaking
With its power of judicial review, the authority to consider the constitutionality of the actions of
Congress, the president, the bureaucracy and state and local governments, the Supreme Court is a
major player in determining the direction of the nation. Even though most people have come to accept
the principle of judicial review, the reality is that the term judicial review is never used in the
Constitution. Article III simply states that the judicial power will be placed in a Supreme Court, although
many argue that the Framers intended the concept of judicial power to include judicial review. Judicial
review was formally established in the Supreme Courts decision in Marbury v. Madison (1803).
There are dramatically different views of the Courts role in policymaking. Judicial activism is a doctrine
stating that the Supreme Court should take an active role in using its powers to check the other
institutions of government when they exceed their authority. Judicial restraint rests on the principle that
the Court should defer to the decisions made by the institutions elected by the people. The current
Supreme Court is sharply divided in its philosophical composition, with four conservative justices, four
liberal justices, and one moderate justice who often serves as the swing vote in controversial cases.

What Checks Our Courts?

The executive branch, the legislature, the public, and the judiciary itself check the power of the courts.
The executive branch carries out judicial rulings; the Court does not have enforcement powers. The
president also exercises control over the federal courts by his appointment of new judges. Congress
must authorize funding to implement court decisions and can pass new laws in response to Court
decisions or begin the constitutional amendment process to overturn a decision of the Court. Public
opinion can limit the power of the Court since it has no enforcement powers; its authority is linked to its
stature in the eyes of the public. Finally, the traditions of the Court, including its refusal to hear political
questions, cases which the Court believes should be decided by the elected branches, also serve to limit
the power exercised by the Supreme Court.