U S Courts: Structure and Procedure

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

Inside the United States Court of Appeals for the Fifth Circut (Credit: United States Courts at http://www.ca5.uscourts.gov/).

Learning Objectives

  • Describe the court system’s basic structure.
  • Explain how you are protected by different U.S. court systems.
  • Describe the differences between the U.S. district courts, circuit courts, and the Supreme Court.
  • Explain the significance of precedent in the courts’ operations.
  • Describe how judges are selected for their positions.
  • Analyze the structure and important features of the Supreme Court.
  • Explain how the judiciary is checked by the other branches of government.

The judiciary is multi-layered with courts at both the national, state, county, and local levels. Chart showing how courts are structure vertically from local at the bottom to the Supreme Court at the top.Adding complexity, the court systems sometimes intersect and overlap each other, and no two states are exactly alike in court structure. The organization of state courts does not perfectly mirror the more clear-cut system found at the federal level.[1]

Cases heard by the U.S. Supreme Court come from two primary pathways: (1) the circuit courts, or U.S. courts of appeal (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).

Precedent set by each ruling (decision of the judges or justices), particularly by the Supreme Court, builds on principles set by earlier cases and frames the ongoing decisions of the courts. Reliance on precedent has enabled the federal courts to operate for the most part with logic and consistency helping 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 subject to their rulings. The U.S. court system operates on the principle of stare decisis (let the decision stand) meaning today’s decisions are based largely on rulings from the past, and tomorrow’s rulings rely on what is decided today. Consistency of precedent ensures greater stability in law and constitutional interpretation contributing to the court system’s legitimacy. 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.”[2]

The Supreme Court makes a decision based upon numerous factors. If the justices affirm a lower court’s decision, they declare it valid and allow it to stand (stare decisis).[3] When an appellate court sends a case back to a lower court for further proceedings the decision is to remand. The lower court is often required to do something differently, but that does not always mean the court’s final decision will change.[4] When an appellate court reverses (sets aside) the decision of a lower court because of an error, it is a reversal, which is often followed by a remand. For example, if the defendant argued on appeal that certain evidence should not have been used at trial, and the appeals court agrees, the case will be remanded in order for the trial court to reconsider the case without that evidence.[5]

There are ninety-four U.S. district courts in the fifty 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 original jurisdiction trial courts of the national system. No district court crosses state lines, and a single judge oversees each one. Some cases are heard by a petit jury (jury of peers) and some are bench trials (judge acts as both judge and jury).

There are thirteen U.S. Courts of Appeal, or circuit courts of appellate jurisdiction, eleven across the nation and two in Washington, DC (the DC circuit and the federal circuit). Each court is overseen by a rotating panel of three judges who review the rulings of the trial (district) courts within their geographic circuit.

A map of the Unites States titled U.S. Courts of Appeal and U.S. District Courts

There are thirteen judicial circuits: eleven in the geographical areas marked on the map and two in Washington, DC. (Credit: U S Courts; http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf)

Other federal trial courts exist with specialized jurisdictions–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.

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.

Photo of the interior of the Supreme Court

Photo of the interior of the Supreme Court (Credit: Supreme Court at https://www.supremecourt.gov/about/photos.aspx).

Supreme Court Structure & Procedure

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 confirmation by the Senate.

link to learningWhile not formally connected with the public the way elected leaders are, the Supreme Court nonetheless offers visitors a great deal of information at its official website.

For unofficial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website or SCOTUS blog.

The Supreme Court begins its annual session on the first Monday in October and ends 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 cases it is asked to review every year.[6] Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade, for example.[7]

For a case on appeal, the case name indicates which party lost at the lower level of court: The party unhappy with the lower court’s decision in terms of legal or procedural error that is bringing the appeal and is thus the petitioner, or the first-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.

For decisions about cert., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari) takes precedence.[8] The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the courts will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election.[9]

The solicitor general is the lawyer who represents the federal government before the Supreme Court: he/she decides which cases (in which the United States is a party) should be appealed from the lower courts. About two-thirds of all Supreme Court cases involve the federal government.[10] The solicitor general determines the position the government will take on a case. The attorneys of his/her office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court.

Once a case has been placed on the docket, briefs (short arguments explaining each party’s view of the case) must be submitted. People and groups that are not party to the case but are interested in its outcome may file an amicus curiae (“friend of the court”) brief giving their opinion, analysis, and recommendations.

How are decisions made and opinions written?

With briefs filed, 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 (head of the Court’s police force/position similar to bailiff) 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!”[11]

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 his or her case as written in the briefs, but as an opportunity to get answers to any questions they may have.[12]

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.[13] The judges take an initial vote in private before the official 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.[14]

Though they lack their own mechanism for enforcement of their rulings and 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 significant than the attention they attract might indicate.

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 five 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 conflict of interest. In the event of a tied vote, the decision of the lower court stands.

If he/she is in the majority, the chief justice decides who will write the opinion. If not, the most senior justice ruling with the majority chooses the writer. Likewise, the most senior justice in the dissenting group can assign a member 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.

Dissenting opinions can also be instructive. If the Court’s decision, expressed in the written majority opinion, significantly changed precedent or the role/processes of government, dissenting opinions may also garner significant attention.

Consider the Original

(Past Justice John M. Harlan, Transcription of Opinion of the Supreme Court of the United States in Plessy v. Ferguson.)

U.S. Supreme Court
PLESSY v. FERGUSON, 163 U.S. 537 (1896)

May 18, 1896.
Mr. Justice HARLAN dissenting.

By the Louisiana statute the validity of which is here involved, all railway companies (other than street-railroad companies) carry passengers in that state are required to have separate but equal accommodations for white and colored persons, ‘by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations.’ […]

Sign stating "Colored Waiting Room" showing evidence of discrimination based upon race.

In a speech delivered in the Ohio House of Representatives in 1886 and later published as The Black Laws, legislator Benjamin W. Arnett described life in segregated Ohio: I have traveled in this free country for twenty hours without anything to eat; not because I had no money to pay for it, but because I was colored. Other passengers of a lighter hue had breakfast, dinner and supper. In traveling we are thrown in “jim crow” cars, denied the privilege of buying a berth in the sleeping coach. This foe of my race stands at the school house door and separates the children, by reason of ‘color,’ and denies to those who have a visible admixture of African blood in them the blessings of a graded school and equal privileges… We call upon all friends of ‘Equal Rights’ to assist in this struggle to secure the blessings of untrammeled liberty for ourselves and posterity. B. W. Arnett, The Black Laws, March 10, 1886. African American Perspectives, 1818-1907 By the 1930s, the practice of racial segregation was widespread and vigorously maintained. When devastating floods hit Arkansas in 1937, for example, white refugees and black refugees were cared for in separate relief facilities. A series of Farm Security Administration photographs documenting the flood demonstrates the pervasive nature of segregation. After hearing arguments by NAACP lawyer Thurgood Marshall, the Supreme Court overruled the Plessy decision on May 17, 1954. In Brown v. the Board of Education, a unanimous Court adopted Justice Harlan’s position that segregation violated the Thirteenth and Fourteenth Amendments to the Constitution. (Credit: Library of Congress at https://www.loc.gov/item/today-in-history/may-18/)

On May 18, 1896, the Supreme Court ruled separate-but-equal facilities constitutional on intrastate railroads. For some fifty years, the Plessy v. Ferguson decision upheld the principle of racial segregation. Across the country, laws mandated separate accommodations on buses and trains, and in hotels, theaters, and schools. (Water cooler in streetcar terminal, Oklahoma City, Oklahoma, contributed by Russell Lee, photographer, 1903-1986, published July 1939, Library of Congress at http://hdl.loc.gov/loc.pnp/pp.fsaowi)

On May 18, 1896, the Supreme Court ruled separate-but-equal facilities constitutional on intrastate railroads. For some fifty years, the Plessy v. Ferguson decision upheld the principle of racial segregation. Across the country, laws mandated separate accommodations on buses and trains, and in hotels, theaters, and schools. (Credit: Russell Lee, photographer, 1903-1986, published July 1939, Library of Congress at http://hdl.loc.gov/loc.pnp/pp.fsaowi)

 

Mr. Justice Strong, delivering the judgment of this court in Olcott v. Supervisors, 16 Wall. 678, 694, said: ‘That railroads, though constructed by private corporations, and owned by them, are public highways, has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence. Very early the question arose whether a state’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly, it could not, unless taking land for such a purpose by such an agency is taking land for public use. […]

In respect of civil rights, common to all citizens, the constitution of the United States does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights. Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper. But I deny that any legislative body or judicial tribunal may have regard to the race of citizens when the civil rights of those citizens are involved. Indeed, such legislation as that here in question is inconsistent not only with that equality of rights which pertains to citizenship, national and state, but with the personal liberty enjoyed by every one within the United States.[15]

The thirteenth amendment […] struck down the institution of slavery as previously existing in the United States, but it prevents the imposition of any burdens or disabilities that constitute badges of slavery or servitude. It decreed universal civil freedom in this country […] the fourteenth amendment, which added greatly to the dignity and glory of American citizenship, and to the security of personal liberty, by declaring that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside,’ and that ‘no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ These two amendments, if enforced according to their true intent and meaning, will protect all the civil rights that pertain to freedom and citizenship.[16] Finally, and to the end that no citizen should be denied, on account of his race, the privilege of participating in the political control of his country, it was declared by the fifteenth amendment that ‘the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color or previous condition of servitude.’

These notable additions to the fundamental law were welcomed by the friends of liberty throughout the world. They removed the race line from our governmental systems. […]

If a state can prescribe, as a rule of civil conduct, that whites and blacks shall not travel as passengers in the same railroad coach, why may it not so regulate the use of the streets of its cities and towns as to compel white citizens to keep on one side of a street, and black citizens to keep on the other? Why may it not, upon like grounds, punish whites and blacks who ride together in street cars or in open vehicles on a public road or street? Why may it not require sheriffs to assign whites to one side of a court room, and blacks to the other? And why may it not also prohibit the commingling of the two races in the galleries of legislative halls or in public assemblages convened for the consideration of the political questions of the day? Further, if this statute of Louisiana is consistent with the personal liberty of citizens, why may not the state require the separation in railroad coaches of native and naturalized citizens of the United States, or of Protestants and Roman Catholics?

The answer given at the argument to these questions was that regulations of the kind they suggest would be unreasonable, and could not, therefore, stand before the law. […]

But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.[17] It is therefore to be regretted that this high tribunal, the final expositor of the fundamental law of the land, has reached the conclusion that it is competent for a state to regulate the enjoyment by citizens of their civil rights solely upon the basis of race.

In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case. […]

The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race. State enactments regulating the enjoyment of civil rights upon the basis of race, and cunningly devised to defeat legitimate results of the war, under the pretense of recognizing equality of rights, can have no other result than to render permanent peace impossible, and to keep alive a conflict of races, the continuance of which must do harm to all concerned. This question is not met by the suggestion that social equality cannot exist between the white and black races in this country. That argument, if it can be properly regarded as one, is scarcely worthy of consideration; for social equality no more exists between two races when traveling in a passenger coach or a public highway than when members of the same races sit by each other in a street car or in the jury box, or stand or sit with each other in a political assembly, or when they use in common the streets of a city or town, or when they are in the same room for the purpose of having their names placed on the registry of voters, or when they approach the ballot box in order to exercise the high privilege of voting. […]

I am of opinion that the state of Louisiana is inconsistent with the personal liberty of citizens, white and black, in that state, and hostile to both the spirit and letter of the constitution of the United States. If laws of like character should be enacted in the several states of the Union, the effect would be in the highest degree mischievous. Slavery, as an institution tolerated by law, would, it is true, have disappeared from our country; but there would remain a power in the states, by sinister legislation, to interfere with the full enjoyment of the blessings of freedom, to regulate civil rights, common to all citizens, upon the basis of race, and to place in a condition of legal inferiority a large body of American citizens, now constituting a part of the political community, called the ‘People of the United States,’ for whom, and by whom through representatives, our government is administered. Such a system is inconsistent with the guaranty given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding.

For the reason stated, I am constrained to withhold my assent from the opinion and judgment of the majority.[18]

A justice’s decisions are influenced by how he/she defines his/her role as a jurist. Some justices believe strongly in judicial activism, aiming to stop actions and laws by other branches of government. Judicial activism often ignores the legislative process, where rules are enacted without public opinion or debate. Activist judges cite cases such as Brown v. Board of Education of Topeka, Kansas as proof that activism in the courts is sometimes necessary. Enthusiastic activists try to advocate for judicial activism citing desegregation achieved in two of the cases which employed equal protection clause as an example; however, acts of Congress are the constitutionally supported method for resolution. The rule of law may reduced to a whim of any judicial activist who comes along at any given time or with any given political agenda.

Other judges believe in judicial restraint, leading them to defer decisions (and thus policy-making) to the elected branches of government staying focused on a more strict interpretation of the Constitution and the Bill of Rights. Judicial restraint encourages the judiciary to limit the exercise of their own power. Courts should esteem all constitutional rights, whether economic or personal and non-economic, thereby requiring the government to prove the necessity and reasonableness of the law–to analyze and rigorously scrutinize the government’s reasons to intervene.

Consider the Original

Past Justice Antonin Scalia offered a dissenting opinion in the recent court decision on same-sex marriage illustrating his opinion on the role of the Supreme Court.

Scalia states,

The substance of today’s decree is not of immense personal importance to me. The law can recognize as marriage whatever sexual attachments and living arrangements it wishes, and can accord them favorable civil consequences, from tax treatment to rights of inheritance.1 […] So it is not of special importance to me what the law says about marriage. It is of overwhelming importance, however, who it is that rules me. Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court. The opinion in these cases is the furthest extension in fact— and the furthest extension one can even imagine—of the Court’s claimed power to create “liberties” that the Constitution and its Amendments neglect to mention. This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.[19]

Until the courts put a stop to it, public debate over same-sex marriage displayed American democracy at its best. Individuals on both sides of the issue passionately, but respectfully, attempted to persuade their fellow citizens to accept their views. Americans considered the arguments and put the question to a vote. The electorates of 11 States, either directly or through their representatives, chose to expand the traditional definition of marriage. Many more decided not to.1 Win or lose, advocates for both sides continued pressing their cases, secure in the knowledge that an electoral loss can be negated by a later electoral win. That is exactly how our system of government is supposed to work.2

The Constitution places some constraints on self-rule—constraints adopted by the People themselves when they ratified the Constitution and its Amendments. Forbidden are laws “impairing the Obligation of Contracts,”3 denying “Full Faith and Credit” to the “public Acts” of other States,4 prohibiting the free exercise of religion,5 abridging the freedom of speech,6 infringing the right to keep and bear arms,7 authorizing unreasonable searches and seizures,8 and so forth. Aside from these limitations, those powers “reserved to the States respectively, or to the people”9 can be exercised as the States or the People desire. These cases ask us to decide whether the Fourteenth Amendment contains a limitation that requires the States to license and recognize marriages between two people of the same sex. Does it remove that issue from the political process?

Of course not. It would be surprising to find a prescription regarding marriage in the Federal Constitution since, as the author of today’s opinion reminded us only two years ago (in an opinion joined by the same Justices who join him today):

“[R]egulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States.”10 […]

We have no basis for striking down a practice that is not expressly prohibited by the Fourteenth Amendment’s text, and that bears the endorsement of a long tradition of open, widespread, and unchallenged use dating back to the Amendment’s ratification. Since there is no doubt whatever that the People never decided to prohibit the limitation of marriage to opposite-sex couples, the public debate over same-sex marriage must be allowed to continue.

But the Court ends this debate, in an opinion lacking even a thin veneer of law. […]

This is a naked judicial claim to legislative—indeed, super-legislative—power; a claim fundamentally at odds with our system of government. Except as limited by a constitutional prohibition agreed to by the People, the States are free to adopt whatever laws they like, even those that offend the esteemed Justices’ “reasoned judgment.” A system of government that makes that the People subordinate to a committee of nine unelected lawyers does not deserve to be called a democracy.[20]

Judges are selected precisely for their skill as lawyers; whether they reflect the policy views of a particular constituency is not (or should not be) relevant. […] Take, for example, this Court, which consists of only nine men and women, all of them successful lawyers18 who studied at Harvard or Yale Law School. Four of the nine are natives of New York City. Eight of them grew up in east- and west-coast States. Only one hails from the vast expanse in-between. Not a single Southwesterner or even, to tell the truth, a genuine Westerner (California does not count). Not a single evangelical Christian (a group that comprises about one quarter of Americans19), or even a Protestant of any denomination. The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges, answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage. But of course the Justices in today’s majority are not voting on that basis; they say they are not. And to allow the policy question of same-sex marriage to be considered and resolved by a select, patrician, highly unrepresentative panel of nine is to violate a principle even more fundamental than no taxation without representation: no social transformation without representation. […]

They are certain that the People ratified the Fourteenth Amendment to bestow on them the power to remove questions from the democratic process when that is called for by their “reasoned judgment.” These Justices know that limiting marriage to one man and one woman is contrary to reason; they know that an institution as old as government itself, and accepted by every nation in history until 15 years ago,21 cannot possibly be supported by anything other than ignorance or bigotry. And they are willing to say that any citizen who does not agree with that, who adheres to what was, until 15 years ago, the unanimous judgment of all generations and all societies, stands against the Constitution. […]

“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality.”23 (Really? Who ever thought that intimacy and spirituality [whatever that means] were freedoms? And if intimacy is, one would think Freedom of Intimacy is abridged rather than expanded by marriage. Ask the nearest hippie. Expression, sure enough, is a freedom, but anyone in a long-lasting marriage will attest that that happy state constricts, rather than expands, what one can prudently say.) Rights, we are told, can “rise . . . from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.”24 (Huh? How can a better informed understanding of how constitutional imperatives [whatever that means] define [whatever that means] an urgent liberty [never mind], give birth to a right?) And we are told that, “[i]n any particular case,” either the Equal Protection or Due Process Clause “may be thought to capture the essence of [a] right in a more accurate and comprehensive way,” than the other, “even as the two Clauses may converge in the identification and definition of the right.”25 (What say? What possible “essence” does substantive due process “capture” in an “accurate and comprehensive way”? It stands for nothing whatever, except those freedoms and entitlements that this Court really likes. And the Equal Protection Clause, as employed today, identifies nothing except a difference in treatment that this Court really dislikes. Hardly a distillation of essence. If the opinion is correct that the two clauses “converge in the identification and definition of [a] right,” that is only because the majority’s likes and dislikes are predictably compatible.) I could go on. The world does not expect logic and precision in poetry or inspirational popphilosophy; it demands them in the law. The stuff contained in today’s opinion has to diminish this Court’s reputation for clear thinking and sober analysis.

[…] The Judiciary is the “least dangerous” of the federal branches because it has “neither Force nor Will, but merely judgment; and must ultimately depend upon the aid of the executive arm” and the States, “even for the efficacy of its judgments.”26 With each decision of ours that takes from the People a question properly left to them—with each decision that is unabashedly based not on law, but on the “reasoned judgment” of a bare majority of this Court—we move one step closer to being reminded of our impotence.[21]

In this type of decision, is the Court creating law based on ideology, desired outcome, or existing applicable law?  What is the proper scope of judicial authority?[22]

Congress has the ability under the Constitution to curtail the judiciary.  The legal system is bound to the belief in stare decisis—following legal precedent—deferring to legislative process where laws are made, and then not entering into a position where they make law for popularly elected representatives.[23]

Justice Anthony Kennedy has said, “An activist court is a court that makes a decision you don’t like.”[24] 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 identification 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. The influence of ideology is real; and, at a minimum, it often guides presidents to aim for nominees who mirror their own political or ideological image.

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 officials, the mass media, and the general public.

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.

An image of a group of people standing in front of a building. Some people are holding signs.

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. (Credit: Matt Popovich)

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.

How do checks and balances work with the judicial branch?

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

Congress has checks on the judiciary, retaining power to modify the court structure and 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.

The most significant 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 policy-making, 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,[25] 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.[26]  Abraham Lincoln, too, famously ignored Chief Justice Roger B. Taney’s order finding Lincoln’s early Civil War suspension of habeas corpus rights unconstitutional. 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 legislature to fund them.

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.”[27] 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.

An image of armed people in helmets, escorting several children up a brick stairway.

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. (Credit: OpenStax included image)

The fate of court decisions rests on their credibility, their viability, and the assistance given by the other branches of government. It also relies on tradition and precedent. 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.

How are judges & justices selected?

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. At the federal level, the president nominates a candidate to a judgeship or justice position.  The nominee must be confirmed by a majority vote in the U.S. Senate–checks and balances, a function of the Senate’s “advice and consent” role. All judges and justices in the national courts serve life terms.

The president sometimes chooses nominees from a list of candidates maintained by the American Bar Association, a national professional organization of lawyers.[28] The president’s nominee is then discussed (and sometimes hotly debated) in the Senate Judiciary Committee. After a committee vote, the candidate must be confirmed by a majority vote of the full Senate. He/she is then sworn in, taking an oath of office 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 influence on the selection of judges in their state, especially those senators who share a party affiliation with the president. In many cases, a senator can block a proposed nominee just by voicing his or her 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.

GOVT 2305 Government Justice Firsts Chart

Presidential nominees for the courts typically reflect the chief executive’s own ideological position. With a confirmed nominee serving a lifetime appointment, a president’s ideological legacy has the potential to live on long after the end of his or her term.[29]

The lower courts are more diverse today. The U.S. judiciary has expanded to include women and minorities at both the federal and state levels.[30] However, the number of women and people of color on the courts still lags behind the overall number of white men. As of 2009, the federal judiciary consists of 70 percent white men, 15 percent white women, and between 1 and 8 percent African American, Hispanic American, and Asian American men and women.[31]

The justices of the U.S. Supreme Court at the Supreme Court Building in Washington on June 1. (J. Scott Applewhite / Associated Press)

The justices of the U.S. Supreme Court at the Supreme Court Building in Washington, D. C. on June 1, 2017. (Credit: J. Scott Applewhite / Associated Press)

Questions to Consider

  1. Is a multi-layered courts system within the federal structure a positive for individuals?  Why/why not?

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

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

Terms to Remember

affirm–decision of the court to agree with or uphold a lower court decision

amicus curiaeliterally a “friend of the court” and used for a brief filed by someone who is interested in but not party to a case

appellate court–reviews cases already decided by a lower or trial court and that may change the lower court’s decision

appellate jurisdiction–function of the court is to hear appeals on procedural or legal error occurring at lower court or court of original jurisdiction

brief–written legal argument presented to a court by one of the parties in a case

chief justice–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; courts of appeal

concurring opinion–written decision by a justice who agrees with the Court’s majority opinion but has different reasons for doing so

courts of appeals–the appellate courts of the federal court system that review decisions of the lower (district) courts; also called circuit courts

dissenting opinion–written decision by a justice who disagrees with the majority opinion of the Court

district court–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

judicial activism–judicial philosophy in which a justice is more likely to actively intervene, overturn, or alter actions of the other branches of government

judicial implementation–a check on the Supreme Court; executive and legislative leverage over the implementation and enforcement of rulings

judicial restraint–judicial philosophy in which a justice is more likely to let stand the decisions or actions of the other branches of government

majority opinion–written decision of the Court with which more than half the nine justices agree

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–function of court to hear original testimony, cross-examination, viewing of evidence, etc.

petitioner–party unhappy with the lower court’s decision bringing the appeal or the first-named party in the case

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

remand–decision to send a case back to the lower court for further proceedings

reverse–decision to overturn a lower court ruling/decision

Rule of Four–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–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

Supreme Court–highest federal/national court; original and appellate jursidiction

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


  1. Bureau of International Information Programs, United States Department of State. Outline of the U.S. Legal System. 2004.
  2. Benjamin N. Cardozo. 1921. The Nature of the Judicial Process. New Haven: Yale University Press. http://www.constitution.org/cmt/cardozo/jud_proc.htm.
  3. Legal term "affirmed" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary
  4. Legal term "remand" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary
  5. Legal term "reverse" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary
  6. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (March 1, 2016).
  7. Roe v. Wade, 410 U.S. 113 (1973).
  8. "Rule 10. Considerations Governing Review on Certiorari." Rules of the Supreme Court of the United States. Adopted April 19, 2013, Effective July 1, 2013. http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf.
  9. Bush v. Gore, 531 U.S. 98 (2000).
  10. "About the Office." Office of the Solicitor General. The United States Department of Justice. http://www.justice.gov/osg/about-office-1 (March 1, 2016).
  11. "The Court and its Procedures." Supreme Court of the United States. May 26, 2015.
  12. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (March 1, 2016).
  13. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (March 1, 2016).
  14. Jonathan Sherman. "End the Supreme Court's Ban on Cameras." New York Times. 24 April 2015. http://www.nytimes.com/2015/04/24/opinion/open-the-supreme-court-to-cameras.html.
  15. emphasis added
  16. emphasis added
  17. emphasis added
  18. (Transcription of Opinion of the Supreme Court of the United States in Plessy v. Ferguson.)U.S. Supreme Court; PLESSY v. FERGUSON, 163 U.S. 537 (1896); 163 U.S. 537; PLESSY v. FERGUSON. No. 210. May 18, 1896. http://www.ourdocuments.gov/doc.php?flash=true&doc=52&page=transcript
  19. emphasis added
  20. emphasis added
  21. 1Brief for Respondents in No. 14–571, p. 14./2Accord, Schuette v. BAMN, 572 U. S. ___, ___–___ (2014) (plurality opinion) (slip op., at 15–17)./3U. S. Const., Art. I, §10./4Art. IV, §1./5Amdt. 1./6 Ibid./7Amdt. 2./8Amdt. 4./9Amdt. 10./10 United States v. Windsor, 570 U. S. ___, ___ (2013) (slip op., at 16) (internal quotation marks and citation omitted)./11 Id., at ___ (slip op., at 17). 12See Town of Greece v. Galloway, 572 U. S. ___, ___–___ (2014) (slip op., at 7–8). 13 Ante, at 10/14 Ante, at 11./15 Ibid./16 Ante, at 10–11./17 Ante, at 12–18/18The predominant attitude of tall-building lawyers with respect to the questions presented in these cases is suggested by the fact that the American Bar Association deemed it in accord with the wishes of its members to file a brief in support of the petitioners. See Brief for American Bar Association as Amicus Curiae in Nos. 14–571 and 14– 574, pp. 1–5./19See Pew Research Center, America’s Changing Religious Landscape 4 (May 12, 2015)./20 Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003)./21 Windsor, 570 U. S., at ___ (ALITO, J., dissenting) (slip op., at 7)./22 If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie./23 Ante, at 13./24 Ante, at 19./25 Ibid./26The Federalist No. 78 (A. Hamilton).OCTOBER TERM, 2014 1 Syllabus NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. SUPREME COURT OF THE UNITED STATES Syllabus OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14–556. Argued April 28, 2015—Decided June 26, 2015*Cite as: 576 U. S. ____ (2015) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 14–556, 14-562, 14-571 and 14–574 JAMES OBERGEFELL, ET AL., PETITIONERS 14–556 v. RICHARD HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL.; VALERIA TANCO, ET AL., PETITIONERS 14–562 v. BILL HASLAM, GOVERNOR OF TENNESSEE, ET AL.; APRIL DEBOER, ET AL., PETITIONERS 14–571 v. RICK SNYDER, GOVERNOR OF MICHIGAN, ET AL.; AND GREGORY BOURKE, ET AL., PETITIONERS 14–574 v. STEVE BESHEAR, GOVERNOR OF KENTUCKY ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [June 26, 2015](https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf).
  22. credit for comment to Melody Gillett, Attorney, Houston, Texas
  23. Credit for comment to Attorney Melody Gillett, Houston, Texas 2016
  24. Jonathan Sherman. "End the Supreme Court's Ban on Cameras." New York Times. 24 April 2015. http://www.nytimes.com/2015/04/24/opinion/open-the-supreme-court-to-cameras.html.
  25. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
  26. "Court History." Supreme Court History: The First Hundred Years. http://www.pbs.org/wnet/supremecourt/antebellum/history2.html (March 1, 2016).
  27. Dwight D. Eisenhower. "Radio and Television Address to the American People on the Situation in Little Rock." Public Papers of the Presidents of the United States: Eisenhower, Dwight D., The American Presidency Project. September 24, 1957. http://www.presidency.ucsb.edu/ws/?pid=10909.
  28. American Bar Association Coalition for Justice. 2008. "Judicial Selection." In American Bar Association, eds. American Judicature Society and Malia Reddick. http://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/Justice/PublicDocuments/judicial_selection_roadmap.authcheckdam.pdf.
  29. American Bar Association Coalition for Justice. 2008. "Judicial Selection." In American Bar Association, eds. American Judicature Society and Malia Reddick. http://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/Justice/PublicDocuments/judicial_selection_roadmap.authcheckdam.pdf.
  30. Bureau of International Information Programs. United States Department of State. Outline of the U.S. Legal System. 2004.
  31. Russell Wheeler. "The Changing Face of the Federal Judiciary." Governance Studies at Brookings. August 2009. http://www.brookings.edu/~/media/research/files/papers/2009/8/federal-judiciary-wheeler/08_federal_judiciary_wheeler.pdf.