Chapter 14
THE COURTS
CHAPTER SUMMARY
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.
Sources of American Law
The major sources of American law are federal and state constitutions, statutes passed by legislative bodies,
administrative law, and case law. Constitutions set forth the general organization, powers, and limits of
government. The U.S. Constitution is the supreme law of the land. Statutes or ordinances passed by national,
state, and local governments have increasingly become important as courts apply these concepts to the
general framework of common law. Case law involves the rules and principles announced in court
decisions, usually appeals courts.
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. See
Figure 14-1 for an overview of the federal judicial system. Figure 14-2 shows the geographic boundaries of
the federal district courts and circuit courts of appeals. 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
(although the Bush Administration chose not to use them when it went forward with its program of
warrantless electronic surveillance of American citizens by the National Security Agency). An alien
“removal court” was created by Congress after Oklahoma City and has also become another tool in the fight
against terrorism.
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 group’s 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.
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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 Court’s 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.
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 Court’s 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. It has been said that dissenting opinions plant the seeds for the
ultimate reversal of a case.
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 president’s 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. See Table 14-1 for the background of
Supreme Court justices. 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. Bill Clinton selected
more women and members of minority groups to federal judgeships than any president before him. Clinton
also appointed two of the Supreme Court’s liberals, Ruth Bader Ginsburg and Stephen Breyer. George W.
Bush had the opportunity to appoint the Chief Justice of the Supreme Court, John Roberts. After his initial
nomination for a second seat, Harriet Miers, was the target of criticism from Republicans in the Senate,
Bush appointed Samuel Alito to become the Court’s newest member.
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 Court’s decision in Marbury v. Madison (1803).
There are dramatically different views of the Court’s 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. Four members of the Court, John Paul Stevens, David
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Souter, Ruth Bader Ginsburg and Stephen Breyer, can be classified as liberal. Two members, Antonin
Scalia and Clarence Thomas, have a strong and lengthy record of conservatism. It is likely that the two
newest members, Chief Justice John Roberts and Samuel Alito, will join Scalia and Thomas on the
conservative wing of the Court. The individual who stands in the middle of this split of four liberals and
four conservatives is Anthony Kennedy, known as the swing vote because his decisions frequently control
the direction of the Supreme Court.
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.
KEY TERMS
amicus curiae brief majority opinion
appellate court oral argument
class-action suit precedent
common law rule of four
concurring opinion senatorial courtesy
dissenting opinion stare decisis
judicial activism unanimous opinion
judicial restraint writ of certiorari
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OTHER RESOURCES
A number of valuable supplements are available to students using the Schmidt, Shelley, and Bardes text. The
full list of the supplements is in the preface to this study guide. Ask your instructor how to obtain these
resources. One supplement is highlighted here, the INFOTRAC Online Library.
INFOTRAC EXERCISES
Log on to http://www.infotrac-college.com.
Enter your Pass code.
You can access the article by typing the exact phrase below
“One Branch Among Three”
The premise of this article is that the federal courts, especially federal appeals courts, are too powerful.
Study Questions
1. What issue is the focus of the author’s anger?
2. What is his solution to the problem he sees with the federal courts?
3. Do you agree with his arguments?
PRACTICE EXAM
(Answers appear at the end of this chapter.)
Fill-in-the-Blank Supply the missing word(s) or term(s) to complete the sentence.
1. The body of judge-made law that developed from England and is still used today in the United States is
called _________________ _________________.
2. The practice of deciding new cases with reference to former decisions is based upon the doctrine of
_________________ _________________.
3. The United States’ dual court system consists of both _________________ courts and _________________
courts.
4. The Supreme Court’s decision to hear a case is determined by the rule _________________
_________________.
5. A _________________ _________________ suit filed by an individual seeks damages for “all persons
similarly situated.”
6. By _________________ of _________________ the Supreme Court orders a lower court to send it the
record of a case for review.
7. A _________________ opinion is an opinion written by a Supreme Court justice who agrees with the
majority opinion but for different reasons.
8. About 20% of Supreme Court appointments are _____________by the Senate.
9. Court decisions are translated into action by _________________ _________________.
10. Justices advocating the doctrine of _________________ _________________ believe the Supreme Court
should defer to decisions made by elected representatives.
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True/False Circle the appropriate letter to indicate if the statement is true or false.
T F 1. Most of American law is based on the English legal system.
T F 2. Case law includes judicial interpretations of common law.
T F 3. Federal court jurisdiction is less limited than state court jurisdiction because the federal
government has jurisdiction over all the country.
T F 4. Federal courts have authority to rule on all issues relating to state laws and federal matters.
T F 5. Interest groups no longer use amicus curiae briefs to influence Supreme Court decisions.
T F 6. Federal judges are either appointed or elected depending upon the type of court.
T F 7. The nomination of Supreme Court justices belongs solely to the president.
T F 8. Ideology no longer plays a very important role in a president’s choice for the Supreme
Court.
T F 9. The makeup of the federal judiciary is typical of the American public.
T F 10. John Roberts is the current Chief Justice.
Multiple-Choice Circle the correct response.
1. Stare decisis is a doctrine
a. enabling court decisions to vary from case to case.
b. providing guidance to judges when common law does not apply.
c. encouraging the following of precedent or previous court decisions.
d. requiring hearings about complaints arising from regulations.
e. only applying to the U.S. Supreme Court.
2. The level of trial courts in the federal judicial hierarchy is the
a. District Court.
b. Court of Appeals.
c. Supreme Court.
d. state court.
e. trial court.
3. Appellate jurisdiction means the authority of a court to
a. serve as a trial court.
b. hear cases for the first time.
c. review decisions from a lower court.
d. establish grand juries.
e. serve as an administrative court.
4. A writ of certiorari is defined as an order
a. compelling an official to carry out his responsibilities.
b. guaranteeing the right to a fair and impartial trial by jury.
c. preventing some action from being carried out.
d. to a lower court to send a case to the higher court for review.
e. to require bail for an individual accused of a crime.
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5. A writ of certiorari is issued by the Supreme Court only when
a. a majority of justices vote for such a request.
b. four justices vote for such a request.
c. a unanimous Court supports such a request.
d. the Solicitor General approves such a request.
e. the death penalty is involved.
6. The official who represents the national government in the Supreme Court is the
a. Attorney General.
b. Solicitor General.
c. Vice-President.
d. Chief Justice.
e. Secretary of State.
7. A Justice who accepts the majority decision, but not the reasons for it, may write his/her own
a. minority opinion.
b. majority opinion.
c. amicus curiae opinion.
d. concurring opinion.
e. individual opinion.
8. In terms of enforcement powers, the Supreme Court
a. has now acquired a police force.
b. relies upon the good will of the public to see that its decisions are enforced.
c. must rely on other units of government to carry out its decisions.
d. does not make decisions that have to be enforced.
e. can go public and use public opinion to enforce the opinion.
9. Dissenting opinions in a Supreme Court decision are important because
a. they allow justices to make symbolic statements.
b. they agree with the majority opinion, but for different reasons.
c. they often form the basis for arguments that reverse decisions and establish new precedent.
d. they allow opposition groups to express their opinions before the court.
e. they may cause a re-hearing of the case.
10. Senatorial courtesy is a concept that
a. allows the president to pick his choice for judge.
b. can veto a president’s choice for judge.
c. applies only to Supreme Court nominations.
d. applies only to state court nominations.
e. is never used in the Senate.
11. The courts that have become “stepping-stones” to appointment to the Supreme Court are the
a. District Courts.
b. State Supreme Courts.
c. Federal Courts of Appeals.
d. Tax Court.
e. Federal Security Courts.
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12. Anthony Kennedy is known as a
a. liberal justice.
b. swing vote.
c. conservative justice.
d. libertarian justice.
e. radical individual rights justice.
13. The justices who believe that the Court should use its power to alter or challenge the policy direction of
Congress, state legislatures, or administrative agencies are advocating
a. judicial restraint.
b. judicial activism.
c. strict constructionism.
d. moderate pragmatism.
e. judicial awareness.
14. The tradition of the Court has led justices to refuse to hear cases which are
a. justiciable disputes.
b. political questions.
c. between citizens of different states.
d. a real controversy.
e. interpreting the Constitution.
15. The appointments of President Clinton to the Supreme Court have elevated the number of
a. women to record numbers.
b. Democrats to record numbers.
c. libertarian members to record numbers.
d. liberal members to record numbers.
e. conservative members to record numbers.
16. Case law refers to
a. a case involving federal law.
b. a case heard by the Supreme Court.
c. rules and principles announced in court decisions.
d. a justiciable dispute.
e. a case involving state law.
17. The concept of judicial review was established in
a. Marbury v. Madison.
b. McCulloch v. Maryland.
c. common law.
d. Brown v. Board of Education of Topeka.
e. Judicial Review Act of 2000.
18. In several 2000 cases, the Supreme Court ruled that ______________ had overreached authority under the
commerce clause.
a. the president
b. Congress
c. state governments
d. federal bureaucracy
e. state supreme courts
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19. Judicial implementation is
a. the Court enforcing its decision.
b. the way in which court decisions are translated into action.
c. a dispute that arise out of actual cases.
d. a case decided by the Supreme Court.
e. a ruling by Congress.
20. The U.S. Supreme Court’s overturning of the order to recount votes in the 2000 presidential election
surprised many observers because
a. this was not an example of judicial review.
b. the Court was always so supportive of civil rights.
c. the Court had become suspicious of the rights of the accused.
d. the Court had been supportive of states rights in other cases.
e. the Court had been such a strong advocate for alien voting rights.
Short Essay Questions Briefly address the major concepts raised by the following questions.
1. Identify and explain the common law tradition and other major sources of American law.
2. Discuss the process the Supreme Court uses to decide cases.
3. Describe the presidential appointment process for federal judges.
4. Explain the checks or limitations on the power of the federal courts.
ANSWERS TO THE PRACTICE EXAM
Fill-in-the-Blank
1. common law
2. stare decisis
3. state, federal
4. of four
5. class-action
6. writ of certiorari
7. concurring
8. rejected
9. judicial implementation
10. judicial restraint
True/False
1. T 3. T 5. F 7. T 9. F
2. T 4. F 6. F 8. F 10. T
Multiple Choice
1. c 6. b 11. c 16. c
2. a 7. d 12. b 17. a
3. c 8. c 13. b 18. b
4. d 9. c 14. b 19. b
5. b 10. b 15. a 20. d
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Short Essay Answers An adequate short answer consists of several paragraphs that discuss the concepts
addressed by the question. Always demonstrate your knowledge of the ideas by giving examples. The following
represent the major ideas that should be included in these short essays.
1. Identify and explain the common law tradition and other major sources of American law.
Common law is a body of judge-made law that originated in England from decisions shaped according
to prevailing custom.
The other major sources of American law are federal and state constitutions, statutes, administrative
law, and case law.
Constitutions set forth the general organization, powers, and limits of government.
Statutes are laws enacted by any legislative body at a federal, state, or local level.
Rules and regulation issued by administration agencies are a source of law.
Case law includes judicial interpretations of all of the above sources of law.
2. Discuss the process the Supreme Court uses to decide cases.
The Supreme Court term begins in October and adjourns usually in June.
The first important decision for the Court is to decide which cases to hear.
Important factors to consider are whether a legal issue has been decided differently by two separate
courts and if the Solicitor General is pushing the case.
If the Court decides to hear a case, four justices (rule of four) must agree to issue a writ of certiorari.
Oral arguments will be scheduled before the Court when attorneys representing each side will present
their cases.
A private conference will be held in which the justices discuss and decide a case.
Opinions can be unanimous, majority, concurring, and dissenting.
3. Describe the presidential appointment process for federal judges.
All federal judges are appointed by the president for life terms, with Senate advice and consent.
The first step in the process is nomination by the president.
Senatorial courtesy can be a big factor in the nomination of federal district judges. A senator of the
president’s party has a great deal of influence over federal district judge appointments from the
senator’s state.
Ideology and political party background are two of the most important factors determining who is
nominated for federal judgeships.
4. Explain the checks or limitations on the power of the federal courts.
Our judicial system is probably the most independent in the world, but there are important checks on
the power of the courts. These checks are the executive, the legislature, the public, and the judiciary
itself.
The executive branch has the power of judicial implementation. The way in which court decisions are
translated into action is solely the responsibility of the executive branch.
Court rulings can be modified or overturned by lack of appropriations to carry out rulings, or overturned
by constitutional amendments.
Public opinion is an important factor, since the Court has no enforcement powers; its authority is linked
to its stature in the eyes of the public.
Federal judges typically exercise self-restraint in making their decisions. Political questions are issues
that a court defers to the decision-making of the executive or legislative branches.
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