The Judiciary (Courts)
I. Article III of the United States Constitution—Creates Courts to handle, i.e., given jurisdiction or the authority to hear and decide certain cases, in “all cases, in law and equity arising under this Constitution, the laws of the United States, and Treaties made, or which shall be made under their authority.”
a. Cases in Law—simple interpretation of the law and application of it to a specific case—this is the way all criminal trials are held and most civil trials; a specific incident occurs and spurs someone to use specific provisions of the law to seek redress or rectification of the matter. THE LAW SAYS IT, THIS IS WHAT MUST BE DONE. PERIOD. There is no question of the law’s constitutionality or a more nuanced application in special cases.
b. Cases in Equity—“the correction of that wherein the law is deficient because of its universal applicability.”—this “tweaks” the law, gives it a special interpretation that is effective in certain instances. The LAW’S CONSTITUTIONALITY MAY BE BROUGHT INTO QUESTION, OR ITS APPLICABILITY MAY BE LIMITED OR EXPANDED IN CERTAIN MATTERS to ensure that all people’s rights are properly respected and maximized.
i. E.g., a city enacts a supposedly generally applicable law prohibiting animal sacrifice, but the court may rule that the law is unconstitutional or at least inapplicable in the case of some people if animal sacrifice is part of their religious practice (Church of the Lukumi Babalu Aye v. City of Hialeah, Fl.—208 U.S. 520 [1993])
ii. E.g., a person has a Constitutional right to an attorney by the 6th amendment, but until the Supreme Court case Gideon v. Wainwright (372 U.S. 335 [1963]) it was not an absolute right because the court did not have to appoint an attorney to help you if you could not afford one.
c. U. S. Judiciary also has jurisdiction in “All cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime jurisdiction;--to controversies between two or more states; between citizens of different states;--between citizens of the same state claiming lands under grants of different states”
d. Judiciary is vested in “One Supreme Court”
i. the highest court in the land
ii. the only court created directly by the Constitution
iii. Justices are appointed for a term of “good behavior” by the President (a term of “good behavior” usually means life-time appointment. The only way a justice of the Supreme Court or any lower court judges can be removed from their position before their deaths is through the impeachment process or through resignation or retirement) There have been about 15 federal judges impeached, about half that many convicted and removed from office
iv. Original jurisdiction
1. in all cases wherein a state is a party—with the exception of cases between states and their citizens or between states and citizens of other states or between states and foreign powers (see the 11th amendment)—usually, the Supreme Court does NOT act as the original trial court, and the proper channel of litigating in state courts or lower federal courts must be followed first.
2. in all cases affecting ambassadors, other public ministers and consuls
v. Appellate Jurisdiction
1. In all other cases that involve, at least in part, a federal question (a question that pertains to the U.S. Constitution, federal laws, or treaties) or over which the federal courts have otherwise been given jurisdiction (i.e., if cases involve “diversity of citizenship”—the two parties are citizens of different states)
2. Cases come to the Supreme Court on appeal from either the U.S. Circuit Courts or from the state supreme courts.
vi. Examples of federal questions:
1. Cases involving protection of the first amendment rights—free exercise of religion, speech, press, peaceful assembly, petition the government for redress—or any of the other Constitutional rights (this is where the courts may exercise their right of judicial review—as defined in Marbury v. Madison [1803]; see notes from the first unit of the semester)
2. Cases of treason, kidnapping, counterfeiting, bankruptcy, or those involving federal tax laws
e. “and in such inferior Courts as the Congress may from time to time ordain and establish.
i. U. S. District Courts and Specialty courts (e.g., bankruptcy courts, tax courts)
1. there are currently 94 District Courts
2. each state has at least 1; several states have two or more (e.g., Texas has four)
3. Judges are appointed for a term of “good behavior” by the President
4. these are the trial courts (all cases involving federal questions where the Supreme Court does not have original jurisdiction are begun at this level; all cases are at least given preliminary hearings after which the judge may decide whether to take the case to trial or dismiss it without going to trial)
5. Several cities within the district have a federal judge or two who, with the other judges in the district, comprise the entire District Court (Waco has a federal courthouse and federal judge as part of the Western District of Texas)
6. U.S. attorneys are assigned to the Districts’ headquarters, and Assistant U.S. attorneys are assigned to the various branch offices to represent the federal government in the cases filed against the government or cases in which the government is suing a citizen or company or state
7. U.S. Marshals are assigned to the U.S. Attorneys offices primarily to serve warrants, subpoenas, etc., though they do have the privileges of all peace-keeping officers
8. Trials at these courts are conducted on the basis of the facts of the case—did this or that happen or not happen? Is there sufficient evidence to prove harm was done?
9. Parties must have standing to sue in order for their civil cases to be tried in these courts (federal criminal trials are automatically heard in these courts)
a. Has the plaintiff party suffered harm or will s/he possibly suffer harm from the action in question?—e.g., a business in one state refuses to hire a citizen of another state because of his/her race; a state may stand to lose revenue if a certain national environmental law is passed.
b. Sometimes it is adequate to claim one’s status as a taxpayer in order to prove standing to sue, especially in matters relating to things like funding of religious institutions with government money (e.g., Erwin Chermerinsky, a law professor at USC, has promised to sue the U.S. government to challenge a law that provides federal tax exemption for portions of a minister’s housing allowance on the grounds that it amounts to government support for religion and that it places an undue burden on non-religious taxpayers to pick up the slack.)
10. Questions brought before the courts must also be justiciable, that is, they must be real and substantial and not merely hypothetical.
ii. U. S. Circuit Courts of Appeals
1. there are 13 in all, including the D.C. Circuit and the Federal Circuit (also located in D.C.)
a. Twelve hear appeals from the U.S. District courts on all sorts matters
b. The Federal Circuit hears appeals on matters pertaining to patent laws and cases in which the U.S. government is a defendant
c. Texas is in the Fifth Circuit, which is headquartered in New Orleans, Louisiana
2. Justices are appointed by the President for a term of “good behaviour”
3. Usually, this is where the buck stops for most federal court cases, thus the rulings of the justices on these courts set much precedent for the district courts within their circuit.
a. Precedent is a court ruling that has bearing (i.e., will effect) legal decisions in similar cases that will arise in the future.
b. How a court rules in one particular case, say in a case over the establishment of religion, will help determine how later cases are decided (examples of precedents in establishment jurisprudence are the so-called Lemon test from the 1970s, the endorsement test, and the coercion test)
c. Precedent is not always a guarantee that similar cases will be decided in similar fashions (establishment jurisprudence, for example, is all over the map; so are free exercise jurisprudence and free speech jurisprudence)
d. At the Circuit Court level, the precedents set affect only the district courts within their respective circuits and subsequent decisions of that same circuit court.
4. Each circuit court ranks equally theoretically, though the D.C. Circuit by virtue of its location in the nation’s capitol is regarded as something like “first among equals.”
5. Decisions in the Circuit Courts are not based on the facts of the case, but rather are based on the merits of the case—were the proper procedures followed in the trial court, was the decision reached in the lower court correct and in line with what the Constitution requires?
iii. Other parties involved in litigation
1. plaintiff—the party who brings the suit against another party
2. defendant—the party being sued
3. third parties may file amicus curiae (friend of the court) briefs on behalf of one of the parties with whom they share a common interest
a. Interest groups, such as the ACLU or the NAACP are often active in filing amicus briefs on behalf of certain parties
b. The U.S. government or state governments may file amicus briefs in certain cases to support one party involved or another
c. Individuals may file amicus briefs.
4. Class-action suits—lawsuits filed by an individual seeing damages for “all persons similarly situated.” (Groups like the ACLU, NAACP, Legal Defense Fund, ACLJ, and the Sierra Club have all been instrumental in filing lawsuits to protect the rights of groups they represent because they believe the courts are more responsive to people’s rights than is Congress)
II. How Does the Supreme Court Work?
a. Annual session begins on the first Monday of October (it’s a tradition, though not a requirement, for justices and other persons who work behind the scenes, to attend what is called a “Red Mass”—a special Catholic Church service for the blessing of the legal profession—before the start of the session) and lasts through late June or early July
b. Very few cases ever reach the Supreme Court—
i. The Court has discretion over what cases it hears (usually there is no set formula for determining what kinds of cases the Court accepts)
ii. The sheer volume of cases in federal courts and state courts each year would make it impossible for the Supreme Court to hear every one of them
c. Cases are brought before the court when
i. A group of 4 or more justices (there are 9 on the Court) must vote to accept a case
ii. A writ of certiorari is granted to the petitioner that requires the records of the lower courts be sent up to the Supreme Court for review (most cases come to the Court through this method)
iii. The parties involved may choose to exercise their right to have the Supreme Court act as the trial court (when the case would fall under “original jurisdiction” as defined in the Constitution, see above) (this RARELY happens)
d. A decision to hear a case may be due to
i. A wide array of lower court precedents on a specific issue (e.g., if there are circuit court rulings in one area that generally uphold the right to burn the flag and there are circuit court rulings in another region that support the bans on flag burning)
ii. Is there a chance that a ruling in a case will have importance for the future
iii. Pressure from the Solicitor General (the person who represents the US government before the Supreme Court)—this officer also decides what cases in which the US government would be a plaintiff should be brought before the Court.
e. The Decision-Making Process
i. Extensive research is done on the facts and legal issues of the case.
1. Each justice has up to four clerks who do much of the dirty work—researching and preliminary drafts of any opinions
ii. Oral arguments are heard—these last no more than ½ hour; both parties present their cases, and the justices ask questions of the lawyers involved.
1. no evidence is introduced (just like in circuit courts)
2. consideration of the case is based upon the case abstracts, the record from the lower courts, and the amicus briefs that are filed on behalf of the parties
3. justices meet in conference to discuss and vote on the cases before them and to vote whether to grant certiorari in other cases. These conferences are held in strict privacy and are not recorded in any way or observed by any third parties.
4. Once a vote is taken (it takes 5 justices to decide one way or the other), the opinion of the court is written and issued. (These can be MASSIVE works, comprising several hundred pages, or may be relatively short)
a. Decisions of the lower courts may be affirmed (upheld)
b. Decisions of the lower courts may be reversed (overturned, based on an irregularity in the lower courts’ proceedings or on the unconstitutionality of the law)
c. The case may be remanded (sent back for a new trial that will follow the advice of the Supreme Court)
d. Opinions may be unsigned (per curiam—“by the court”)—it does not happen too often
e. Opinions are usually signed by the justices who have voted in the majority
i. If the chief justice is in the majority, he may write the opinion himself or assign the task to an associate justice
ii. If the chief justice is in the minority, the most senior justice in the majority may write the opinion or assign the task to someone else in the majority.
f. Unanimous opinions (all the justices agree and all sign their names to the one opinion)
g. Majority opinion (the opinion reflecting the view of the majority [5 or more] of the justices])
h. Concurring opinion (separate opinion by a justice in the majority who agrees with the final outcome of the case but does not agree with the way in which decision was finally arrived at or who wants to highlight a particular reason that did not gain enough attention in the majority opinion)
i. Dissenting opinion (opinion reflecting one or more of the justices’ in the minority’s views explaining why they disagree with the final decision in the case)—dissenting opinion may be important as a basis upon which similar cases in the future may be argued, especially if the make-up of the court has changed since the original dissenting opinion was filed.
j. Occasionally there is no majority opinion, several concurring opinions, and several dissenting opinions.
k. The fewer the number of opinions and the more justices who attach their support to the majority opinion, the stronger the precedent set by the case for future litigation. The more opinions there are or the fewer the number of justices who are in the majority, the weaker the precedent. Thus a 9-0 opinion will be a stronger precedent than will a 5-4 opinion.
l. Once the opinion is written (and this may be months after the case was originally heard), the Court announces its decision and the opinion becomes public record. Ultimately the decision is printed in the United States Reports and given a designation in the format _____ U.S._____ or ____ Sup. Ct.____ with the blanks being filled in by volume number and page number.
m. Case titles are written in the format: plaintiff v. defendant or appellant v. appellee or petitioner v. respondent; on appeal, the LOSER (in the lower court) name is the first and the winner second.
f. Interpreting Opinions of the Court
i. Judicial Activism or Judicial Restraint?
1. Activism—Court is more inclined to strike down a law it sees as unconstitutional. There is a strong sense that Congress or state legislators or other rulemaking bodies have overstepped its authority and the rights of a minority or other important group must be protected.
a. Liberal Activism (most common)—seen notably in cases where states’ rights are challenged; liberal activist courts are more likely to strike down laws that grant or exercise what they believe is too much discretion or power for the local governments (city, state); this was the principal stance of the Supreme Court in the 1950s and 1960s under Chief Justice Earl Warren—Examples of liberal activist decisions include:
i. Brown v. Board of Education (1954) that began the process of dismantling segregation in the public schools; struck down many states’ laws regarding segregation
ii. Griswold v. Connecticut (1965) that discovered in the Constitution a right to use contraception by virtue of the 3rd, 4th, 5th, and 9th amendments taken together to make a right to privacy
iii. Miranda v. Arizona (1966) that required officers to read an arrested suspect his rights before any testimony taken from a witness is admitted into court evidence
b. Conservative Restraint (most common)—seen notably in cases where courts uphold the laws Congress passes—deference to Congress as the real voice of the people unless a law is blatantly in violation of the Constitution—upholding state’s rights and laws that are passed at both the national and state levels that do not overstep the strict wording of the Constitution. The Supreme Court under Chief Justice William Rehnquist of the 1980s-present has leaned toward restraint—Examples of conservative restraint cases include:
i. Seminole Tribe of Florida v. Florida (1996) that determined Congress had no right to authorize lawsuits “by Indian tribes against states for prospective injunctive relief to enforce legislation enacted pursuant to the Indian Commerce Clause” under the 11th amendment
ii. Employment Division v. Smith (II) (1991) that gave states the right to pass and enforce laws of “generally neutral applicability” without special regard for religious rights of certain religious minorities (in this case, it was the Native American Church that uses peyote as part of their worship ritual that was the “victim” of discrimination; Oregon state law was upheld that outlawed use of this drug and two members of the NAC remained fired from their positions as drug counselors at a state facility)
iii. City of Boerne, TX v. Flores (1997) that struck down the application of the national Religious Freedom Restoration Act (RFRA) with regard to the states. Congress could require the national courts to use a standard of “compelling state interest” to determine if a national law were constitutional with respect to individuals’ religious rights, but Congress had no right to tell the state courts how to review cases of religious discrimination and all the states are required to prove is that the law is of “generally neutral applicability”
c. Liberal Restraint (not terribly common)—seen notably in cases where the Congress or other government body has passed laws that enforce minority rights over against the states and ensure their rights to religious expression, political speech, assembly, etc.
d. Conservative Activism (not terribly common)—seen notably in cases where Congress has not gone far enough to protect states’ rights or individuals’ rights to religious or political expression; or in cases where Congress or state legislatures or municipalities have acted too much in favor of a small minority or centralized government with little regard for the states or other individuals’ rights (see Capitol Square v. Pinette [1995] that affirmed the right of the KKK to erect a non-attended cross on public property near the Ohio Statehouse, despite the offensive message it may send to some members of the community; the lower courts had also upheld this right)
ii. Originalist or Non-Originalist?
1. Strict Constructionism (Interpretivism)
a. Looking at the original intent of the founding fathers—what was the intended meaning of the text of the Constitution in 1789?
b. Textual analysis of the Constitution—letter of the document more important than the spirit of it
c. Less fluid, more rigidified and concretized
d. Will look at precedents that reflect this point of view
2. Non-originalist (Non-interpretivism)
a. What rights are implied in the Constitution?
b. Creative interpretation of laws to find new rights that were not part of the original package
c. Looks at the spirit of the Constitution more than the text. Allows the Constitution to live and grow with time
d. Goes beyond the Constitution itself and examines other laws, contemporary morality, traditions, legal opinions, etc.
iii. Tests/Standards of Interpretation
1. These are little “tools” the justices create in some cases that serve as a guide for future cases
2. General tests for constitutionality:
a. Law must serve a legitimate purpose and
b. Law must employ a means rationally related to that legitimate purpose
3. Specific tests (e.g. in cases of whether a law establishes a religion in violation of the 1st amendment)
a. Lemon Test (Lemon v. Kurtzman, 1973)
i. Law must have a legitimate secular purpose
ii. Law must neither advance nor inhibit religion
iii. Law must not foster excessive entanglement between government and religion
b. Endorsement Test (the government may not appear to endorse any one religion over another; sarcastically referred to as the “three plastic reindeer test” for its use in determining that a crèche in a public park did not violate the establishment clause because it was surrounded by other more secular symbols and was simply there as part of a general holiday display that was not intended to endorse Christianity over any other religion—from Lynch v. Donnelly [1984, O’Connor, J. concurring]; and Allegheny v. ACLU [1989])
Coercion Test (the government may not appear to coerce anyone into accepting one religion or another—from Lee v. Weisman [1992])