Lowi 2017 CH 9

9 INSTITUTIONS
The Federal Courts
Courts serve an essential function. When disputes arise, an impartial arbiter is

Chapter Outline
needed to help settle the matter. When laws must be enforced, justice requires
• The Judicial Process an impartial judge to determine guilt and innocence and, if the accused is found
• The Organization
guilty, the appropriate punishment. And when questions arise about the mean-
of the Court System ing of those laws, we rely on the wisdom of judges to interpret what Congress
meant and how that meaning applies in a given circumstance. It is not possible,
• How Courts Work as
Political Institutions
or even wise, to pass a law to cover every contingency. Thus nearly every nation
today has established a system of courts to satisfy the need for an arbiter and
• The Power of Judicial interpreter.
Review
Perhaps the most distinctive feature of the American judiciary is its inde-
• The Supreme Court in pendence. The Constitution, as it was written and as it has evolved, established
Action the courts as a separate entity from the legislature, the executive, and the states
• Judicial Decision and insulated it from electoral politics. As we will see, four institutional features
Making of the American judiciary ensure a powerful, independent court system. First,
• Conclusion: The the Constitution establishes the federal courts as a separate branch of govern-
Expanding Power of ment from Congress and the president. Second, authority among the courts
the Judiciary is hierarchical, with federal courts able to overturn state courts, and the U.S.
Supreme Court as the ultimate authority. Third, the Supreme Court and other
federal courts of appeals can strike down actions of Congress, the president, or
the states if judges deem those acts to be violations of the Constitution. This
authority is the power of judicial review. And fourth, federal judges are appointed
for life. They are not subject to the pressures of running for reelection and need
not be highly responsive to changes in public opinion.1
An independent judiciary has been one of our government’s most successful
institutions. It has settled constitutional crises when Congress and the president
are at odds. It has guaranteed that no person is above the law, even members of
Congress and the president. It has helped ensure that all people, even nonciti-
zens, enjoy equal protection of the laws. It has enabled small businesses, large
1 However, judges in many state and local courts are elected.
328 Chapter 9: The Federal Courts

corporations, and workers to engage in economic activities and agreements,
knowing that their rights will be protected. It has ensured that the branches
of government operate in a democratic manner and that every citizen’s vote
counts equally in selecting the legislature. The independent judiciary has ensured
a stable, successful democracy and economy.
Although granting judges lifetime appointments and the power to strike
down acts of Congress might seem to permit tyrannical rule by courts, courts
lack Congress’s power of the purse, the president’s ability to move troops or
order other branches of the executive to act, or the bureaucracy’s power to
police. Courts are also passive in that they must wait for people to file lawsuits
in order to make decisions or issue decrees. The sources and nature of judicial
power in American government are subtle and democratic.
The real power of the courts emanates from their ability to interpret the
meaning of the laws in a way that society accepts. Courts are powerful to the
extent that the people and groups involved accept judges’ decrees in nearly all
cases. If people ignored the decrees of judges in local courts or if Congress
routinely passed legislation contradicting the Supreme Court, the judicial func-
tion in our society would vanish. Herein lies the judiciary’s ability not just to
interpret but also to make law. Indeed, each court decision or settlement is an
CORE OF THE ANALYSIS
ust like presidents and legislators, judges have preferences about

J

what government should do, and they use their powers to shape
public policy.
Judicial decisions are highly constrained by the past, in the form of

common law and precedents, but every decision also contributes
to the evolution of the law.
The courts maintain their independence from the legislature and

executive because federal judges are appointed for life and not
elected. Independence allows the courts to act as a check on the
democratically chosen branches of government.
Courts can block or overturn political decisions of the legislature or

executive if those decisions violate the Constitution or conflict with
other laws, a power called judicial review.
However, the courts are also constrained by the checks and

balances built into the institutional setting within which they
operate.
The Federal Courts 329

act of lawmaking, a function as important as the passage of a statute by the
legislature. Any decision may serve as a precedent for deciding a future case,
and the accumulation of many such decisions, accepted by common practice,
eventually becomes the norm.
Common law consists of all past agreements that we accept when reaching
any decision. A contract for a real estate sale, for example, comprises many
pages of language pertaining to contingencies that might arise, what would hap-
pen in each case, and who would bear responsibility. Each clause has been devel-
oped through past legal decisions accumulated over centuries, even dating back
in some instances to ancient Rome. The Supreme Court is similarly constrained
by past decisions. When a majority of justices issues an opinion interpreting
the law in a particular way, that opinion has the standing of precedent and con-
strains future courts. The history principle matters more fundamentally for the
judiciary than for the other branches of government. If judges themselves were
to ignore precedent, they would undercut the power of the courts and their own
authority.
Precedents limit the power of the independent judiciary, but the past does
not render the courts impotent. In any decision, a judge is both constrained by
the past and contributing to the future meaning of the law. Usually, the courts’
influence on American politics is incremental. At times, however, courts have
made sweeping changes in the country’s law and politics. With industrializa-
tion in the late nineteenth century came new ideas about the enforcement of
contracts that dominated the courts’ thinking. The New Deal eventually won
the support of the Supreme Court and with that a new acceptance of gov-
ernment’s role in the economy and society. During the 1950s and 1960s, the
Supreme Court confronted lingering conflicts over racial and gender equality,
religious freedoms, police powers, and legislative redistricting. Today, the courts
face new questions, many stemming from rapid changes in information and
biological technologies: Who owns your DNA? Do you have a right to privacy
when sending an e-mail? As in the past, the courts will settle cases that address
such questions, and how the courts do so will shape the meaning of the law and
the definition of fundamental rights, such as the rights to property and privacy.
The judiciary’s role in our system of government points to a basic lesson
about courts worldwide: they are fundamentally political. Just like presidents
and legislators, judges have preferences about what government should do, and
they use their powers to interpret, apply, and review laws to shape public policy.
Judges are also constrained by the institutional setting within which they oper-
ate. They know that others in the political process may try to alter or undo a
court’s rulings.
In this chapter, we examine the judicial process first, including the types of
cases that the federal courts consider and the types of laws that they interpret.
Second, we assess the structure of the federal court system and explain how
judges are appointed. Third, we analyze courts as political institutions and con-
sider their roles in the political system. Fourth, we consider judicial review and
how it makes the Supreme Court a lawmaking body. Fifth, we examine the flow
of cases through the courts and various influences on Supreme Court decisions.
Finally, we analyze the process of judicial decision making and the power of

the federal courts in the American political process, looking in particular at the
growth of judicial power in our nation.
THE JUDICIAL PROCESS
Many centuries ago a court was the place where a king and his entourage gov-
erned. Judging—settling disputes between citizens—was part of governing.
Over time the function of settling disputes was slowly separated from the king
and his court and became a separate institution of government. Courts have
taken over the power to settle controversies by hearing the facts on both sides
and deciding which side possesses greater merit. But because judges are not
kings, they must have a basis for their authority. That basis in the United States
is the Constitution and the law. Courts decide cases by applying the relevant
law or principle to the facts. This approach lends authority derived from past
law and past social compacts. It also provides a basis for continuing judicial
independence, as common law and past precedents evolve on their own, often
separate from legislation passed by Congress and the executive. What are these
systems of rules that the judiciary has developed? What are the organizations
and institutions of the judiciary, and how do they help perform the complex
administration and interpretation of the law?
Court cases in the United States proceed under two broad categories of
law: criminal and civil. One form of civil law, public law, is so important that we
consider it as a separate category (Table 9.1).
In cases of criminal law the government charges an individual with violat- criminal law
ing a statute that has been enacted to protect the public health, safety, morals, or
The branch of law that
welfare. In criminal cases, the government is always the plaintiff (the party that
regulates the conduct
brings charges) and alleges that a named defendant has committed a criminal of individuals, defines
violation. Most criminal cases arise in state and municipal courts and involve crimes, and specifies
matters ranging from traffic offenses to robbery and murder. Although much punishment for
of criminal law is still a state matter, a growing body of federal criminal law proscribed conduct
addresses such matters as tax evasion, mail fraud, and the sale of narcotics.
Defendants found guilty of criminal violations may be fined or sent to prison.
Cases of civil law involve disputes between individuals or between individu- civil law
als and the government where no criminal violation is charged. Unlike criminal
The branch of law that
cases, the losers in civil cases cannot be fined or sent to prison, although they
deals with disputes that
may be required to pay monetary damages. In a civil case, the one who brings do not involve criminal
a complaint is the plaintiff and the one against whom the complaint is brought penalties
is the defendant. The two most common types of civil cases involve contracts
and torts and are often handled by state courts. In a typical contract case, an
individual or corporation charges that it has suffered because of another’s vio-
lation of an agreement between the two. For example, Smith Manufacturing
Corporation may charge that Jones Distributors failed to honor an agreement to
deliver raw materials at a specified time, causing Smith to lose business. Smith
asks the court to order Jones to compensate it for the damage allegedly suffered.
The Judicial Process 331

Table 9.1
TYPES OF LAWS AND DISPUTES
TYPE OF LAW TYPE OF CASE OR DISPUTE FORM OF CITATION
Criminal law Cases arising out of actions that violate laws protecting U.S. (or state) v. Jones,
the health, safety, and morals of the community. The Jones v. U.S. (or state) if
government is always the plaintiff. Jones lost and is appealing
Civil law Law involving disputes between citizens or between a Smith v. Jones, New York v.
government and a citizen where no crime is alleged. Two Jones, U.S. v. Jones, Jones v.
general types are contract law and tort law. Contract cases New York
are disputes that arise over voluntary actions. Tort cases
are disputes that arise out of obligations inherent in social
life. Negligence and slander are examples of torts.
Public law All cases in which the powers of government or the rights Jones v. U.S. (or state), In
of citizens are involved. The government is the defendant. re Jones, Smith v. Jones if a
Constitutional law involves judicial review of the basis of license or statute is at issue
a government’s action in relation to specific clauses of in their private dispute
the Constitution as interpreted in Supreme Court cases.
Administrative law involves disputes over the statutory
authority, jurisdiction, or procedures of administrative
agencies.
In a typical tort case, one individual charges that he or she has been injured by
precedents
another’s negligence or malfeasance. Medical malpractice suits are one example
Prior cases whose of tort cases.
principles are used by In deciding cases, courts apply statutes (laws) and legal precedents (prior
judges as the bases for decisions). State and federal statutes often govern the conditions under which
their decisions in present contracts are and are not legally binding. Jones Distributors might argue that it
cases was not obliged to fulfill its contract with Smith Manufacturing because actions
by Smith—the failure to make promised payments—constituted fraud under
stare decisis state law. Attorneys for a physician being sued for malpractice, in contrast, may
search for prior instances in which courts ruled that actions similar to their
Literally, “let the decision client’s did not constitute negligence. Such precedents are applied under the
stand.” The doctrine
doctrine of stare decisis, a Latin phrase meaning “let the decision stand.”
whereby a previous
A case becomes a matter of public law when a plaintiff or defendant in a
decision by a court
applies as a precedent
civil or criminal case seeks to show that his case involves the powers of govern-
in similar cases until that ment or the rights of citizens as defined under the Constitution or by statute.
decision is overruled One major form of public law is constitutional law, under which a court will
determine whether the government’s actions conform to the Constitution as
interpreted by the judiciary. Thus what began as an ordinary criminal case may
public law
enter the realm of public law if, for example, a defendant claims that the police
Cases involving the violated her constitutional rights. Another arena of public law is administra-
action of public agencies tive law, which involves disputes over the jurisdiction, procedures, or author-
or officials ity of administrative agencies. Under this type of law, civil litigation between

an individual and the government may become a matter of public law if the
individual asserts that the government is violating a statute or abusing its con-
stitutional power. For example, landowners have asserted that federal and state
administrative regulations on land use constitute violations of the Fifth Amend-
ment’s restrictions on the government’s ability to confiscate private property.
Recently the Supreme Court has been very sympathetic to such claims, which
effectively transform an ordinary civil dispute into a major issue of public law.
Most of the Supreme Court cases we examine in this chapter involve
judgments concerning the constitutional or statutory basis of the actions of
government agencies. In this arena of public law, Court decisions can have
significant consequences for American politics and society.
THE ORGANIZATION
OF THE COURT SYSTEM
Types of Courts
In the United States, court systems have been established both by the federal
government and by individual state governments. Both systems have several
levels (Figure 9.1), though it should be acknowledged that the one federal
system and the 50 state systems are all distinctive in a number of ways. Nearly
99 percent of all court cases in the United States are heard in state courts. The
majority of criminal cases, for example, involve violations of state laws prohib-
iting such actions as murder, robbery, fraud, theft, and assault. If such a case
is brought to trial, it will be heard in a state trial court in front of a judge and trial court
sometimes a jury, who will determine whether the defendant violated state law.
The first court to hear a
If the defendant is convicted, he may appeal the conviction to a higher court,
criminal or civil case
such as a state court of appeals, and from there to a state’s supreme court.
Similarly, in civil cases, most litigation is brought in the courts established by the
state in which the activity in question occurred. For example, a patient bringing court of appeals
suit against a physician for malpractice would file the suit in the appropriate (or appellate
court in the state where the alleged malpractice occurred. The judge hearing the court)
case would apply state law and state precedent to the matter. (However, in both
A court that hears the
criminal and civil matters, most cases are settled before trial through negotiated
appeals of trial-court
agreements between the parties. In criminal cases, these agreements are called decisions
plea bargains. Such bargains may affect the severity of the charge and/or the
severity of the sentence.)
In addition, the U.S. military operates its own court system under the supreme court
Uniform Code of Military Justice, which governs the behavior of men and The highest court in a
women in the armed services. On rare occasions, the government has consti- particular state or in
tuted special military tribunals to hear cases deemed inappropriate for the civil the United States. This
courts. Such tribunals tried Nazi saboteurs apprehended in the United States court primarily serves an
during World War II and individuals suspected of acts of terrorism against the appellate function
The Organization of the Court System 333

Figure 9.1
THE U.S. COURT SYSTEM
Supreme Court of the United States
Requests for reviews
State supreme court
U.S. Court of Appeals State appellate courts
U.S. District Courts State trial courts
FEDERAL SYSTEM STATE SYSTEM
United States after 9/11. More recently, special courts have been created, some-
jurisdiction times in conjunction with the Department of Veterans’ Affairs, to hear criminal
cases involving military veterans of the recent wars in Iraq and Afghanistan.
The types of cases over
which a court has authority
Federal Jurisdiction
appellate Cases are heard in the federal courts if they involve federal laws, treaties with
jurisdiction other nations, or the U.S. Constitution; these areas constitute the federal courts’
The class of cases official jurisdiction. In addition, any case in which the U.S. government is a
provided in the party is heard in the federal courts. If, for example, an individual is charged
Constitution and by with violating a federal criminal statute, such as evading the payment of income
legislation that may be taxes, charges would be brought before a federal judge by a federal prosecutor.
appealed to a higher Civil cases involving the citizens of more than one state and in which more than
court from a lower court $75,000 is at stake may be heard in either the federal or the state courts.
But even if a matter belongs in federal court, how do we know which federal
original court should exercise jurisdiction? The answer is complex. Each federal court’s
jurisdiction jurisdiction is derived from the Constitution and federal statutes. Article III of
The class of cases
the Constitution gives the Supreme Court appellate jurisdiction in all federal
provided in the cases and original jurisdiction in cases involving foreign ambassadors and issues
Constitution (Article III) in which a state is a party. That is, the Supreme Court may hear cases appealed to
that may be taken it by a party to a case first heard in a lower federal court or a state court (appel-
directly to a federal court late jurisdiction) or the Supreme Court may be the initial destination of cases

Figure 9.2
GEOGRAPHIC BOUNDARIES OF U.S. COURTS OF APPEALS
WA VT NH ME
ND 2 1
MT
OR MA
ID MN NY
WI RI
SD MI
WY 8 3
CT
IA 7 OH PA
NV NE NJ
IL IN
UT 6 WV VA DE
CO 4
CA 9 KS MO KY MD
10 NC
TN DC*
OK AR SC
AZ
NM
GA
MS AL
HI LA 11
TX 5
GU** FL
MP** AK PR** 1
VI** 3
* The District of Columbia has its own circuit, called the D.C. Circuit.
** U.S. Postal Service abbreviations for Guam (GU), Northern Mariana Islands (MP), Puerto Rico (PR),
and the U.S. Virgin Islands (VI).
SOURCE: Administrative Office of the U.S. Courts, www.uscourts.gov/uscourts/images/CircuitMap.pdf
(accessed 4/2/13).
involving a state or an ambassador (original jurisdiction). Article III assigns orig-

inal jurisdiction in all other federal cases to the lower courts that Congress was
authorized to establish. Over the years, as Congress enacted statutes creating the
federal judicial system, it specified the jurisdiction of each type of court it estab-
lished. Congress generally has assigned jurisdictions on the basis of geography.
The nation is currently, by statute, divided into 94 judicial districts, including
one court for each of three U.S. territories: Guam, the U.S. Virgin Islands, and
the Northern Marianas. Each of the 94 U.S. district courts exercises jurisdiction
over federal cases arising within its territorial domain. The judicial districts are,
in turn, organized into 11 regional circuits and the District of Columbia circuit
(Figure 9.2). Each circuit court exercises appellate jurisdiction over cases heard
by the district courts within its region.
Geography is not the only basis for federal court jurisdiction. Congress has
also established specialized courts with nationwide original jurisdiction in cer-
tain types of cases. These include the U.S. Court of International Trade, which
addresses trade and customs issues, and the U.S. Court of Federal Claims, which
handles damage suits against the United States. Congress has also established
a court with nationwide appellate jurisdiction: the U.S. Court of Appeals for
the Federal Circuit, which hears appeals involving patent law and those arising

from the decisions of the trade and claims courts. Other federal courts with
specialized jurisdictions are the U.S. Court of Appeals for Veterans Claims,
which exercises exclusive jurisdiction over cases involving veterans’ claims, and
the U.S. Court of Appeals for the Armed Forces, which addresses questions of
law arising from trials by court martial.
With the exception of the claims court and the Court of Appeals for the
Federal Circuit, these specialized courts were created by Congress on the basis
of the powers the legislature exercises under Article I. Article III was designed to
protect judges from political pressure by granting them life tenure and prohibit-
ing reduction of their salaries while they serve. The judges of Article I courts,
by contrast, are appointed by the president for fixed terms of 15 years and are
not protected from salary reduction. As a result, these so-called legislative courts
are generally viewed as less independent than the courts established under
Article III. The three territorial courts were also established under Article I,
and their judges are appointed for 10-year terms.
The federal courts’ appellate jurisdiction also extends to cases originating
in the state courts. In both civil and criminal cases, a decision of the highest
state court can be appealed to the U.S. Supreme Court by raising a federal issue.
Appellants might assert, for example, that they were denied the right to counsel
due process or otherwise deprived of the due process guaranteed by the federal Constitu-
tion, or they might assert that important issues of federal law were at stake in
Proceeding according to
the case. The Supreme Court will accept such appeals only if it believes that the
law and with adequate
matter has considerable national significance. (We return to this topic later in
protection for individual
rights
the chapter.) In addition, in criminal cases defendants who have been convicted
in a state court may request a writ of habeas corpus from a federal district
court. Habeas corpus is a court order to the authorities to show cause for the
writ of habeas incarceration of a prisoner. In 1867, Congress’s distrust of southern courts led
corpus
it to authorize federal district judges to issue such writs on behalf of prisoners
A court order demanding who they believed had been deprived of their constitutional rights in state court.
that an individual in Generally speaking, state defendants seeking a federal writ of habeas corpus must
custody be brought have exhausted all available state remedies and raise issues not previously raised
into court and shown in their state appeals. Federal courts of appeals and, ultimately, the U.S. Supreme
the cause for detention; Court have appellate jurisdiction over federal district court habeas decisions.
habeas corpus is Over recent decades, the federal courts’ caseload has more than quadru-
guaranteed by the pled, to 450,000 cases annually. This has occurred because Congress has greatly
Constitution and can be
expanded the number of federal crimes, particularly involving drug possession
suspended only in cases
and sale. Behavior that was once a state criminal matter has, to some extent,
of rebellion or invasion
come within the reach of federal law. In 1999, Chief Justice William Rehnquist
criticized Congress for federalizing too many offenses and intruding into
areas that the states should handle.2 About 85 percent of federal cases end in
the district courts; the remainder are appealed to the circuit courts. Of these
circuit court decisions, thousands annually are appealed to the Supreme Court.
Most cases filed with the Supreme Court are dismissed without a ruling on their
2 Roberto Suro, “Rehnquist: Too Many Offenses Are Becoming Federal Crimes,”
Washington Post, January 1, 1999, p. A2.

merits. The Court has broad latitude to decide what cases it will hear and gener-
ally listens only to those cases it deems to raise the most important issues. Thus
in recent years, fewer than 100 cases annually were given full-dress Supreme
Court review (the nine justices actually sitting en banc—in full court—and
hearing lawyers argue the case), and 80 or so written opinions were issued.3
Although the federal courts hear only a fraction of all civil and criminal
cases decided each year, their decisions are extremely important (Table 9.2).
It is in the federal courts that the Constitution and federal laws governing all
Americans are interpreted and their meaning and significance established. More-
over, it is in the federal courts that the powers and limitations of the increasingly
powerful national government are tested. Finally, through their power to review
the state courts’ decisions, it is ultimately the federal courts that dominate the
American judicial system.
Federal Trial Courts
Federal district courts are trial courts of general jurisdiction, and their cases are,
in form, indistinguishable from cases in state trial courts.
There are 89 district courts in the 50 states, 1 each in the District of
Columbia and Puerto Rico, and 1 in each of three U.S. territories. There are
678 district judgeships. District judges are assigned to district courts through
the political process involving both the president and Congress. The number
of judgeships on a district court depends in part on workload; the busiest may
have as many as 28 judges. Only 1 judge is assigned to each case, except where
statutes provide for 3-judge courts to deal with special issues. The procedures
of the federal district courts are essentially the same as those of the lower
state courts, except federal procedural requirements tend to be stricter. States,
for example, do not have to provide a grand jury, a 12-member trial jury, or a
unanimous jury verdict. Federal courts must provide all these. As mentioned
earlier, in addition to district courts, cases are handled by several specialized
courts, including the U.S. Tax Court, the Court of Federal Claims, and the
Court of International Trade.
Federal Appellate Courts
Roughly 20 percent of all federal lower-court cases, along with appeals of some
federal agency decisions, are subsequently reviewed by a federal appeals court. As
noted, the country is divided into 12 judicial circuits, each with a U.S. Court of
Appeals. Every state and the District of Columbia are assigned to the circuit in the
continental United States that is closest to it. A 13th appellate court, the U.S. Court
of Appeals for the Federal Circuit, is defined by subject matter (patent law and
decisions of trade and claims courts) rather than geographic jurisdiction.
3 www.uscourts.gov/statistics/table/1/judicial-business/2015/09/30 (accessed 8/17/16).

Table 9.2
LANDMARK SUPREME COURT CASES
Not all cases and decisions are equally important. Landmark cases are decisions that revolutionize an
area of law and announce new legal standards or have far-reaching political consequences.
Marbury v. Madison (1803). The Court declared part of the Judiciary Act unconstitutional, establishing
judicial review.
McCulloch v. Maryland (1819). The Court justified the “implied powers” of the government under the
Constitution, enabling Congress and the president to assert their authority beyond those activities explicitly
mentioned in the Constitution.
Gibbons v. Ogden (1824). This decision establishes the supremacy of the federal government over the states in
the regulation of commerce so as to create uniform business law.
Dred Scott v. Sandford (1857). The Court declared that people of African origin brought to the United States
as part of the slave trade were not given the rights of citizenship under the Constitution and could, therefore,
claim none of the rights and privileges that the Constitution provides.
Plessy v. Ferguson (1896). The Court interpreted the post–Civil War amendments to the Constitution in such a
way as to allow segregation, so long as facilities were “separate but equal.”
Lochner v. New York (1905). The Court established a general right to enter freely into contracts
as part of business, including the right to purchase and sell labor. The decision made it more difficult for
unions to form.
Schenck v. United States (1919). The Court declared that the right to free speech does not extend to words
that are “used in such circumstances and are of such a nature as to create a clear and present danger.”
Korematsu v. United States (1944). The Court allowed the U.S. government to intern Japanese-Americans in
concentration camps during World War II as a safeguard against insurrection or spying.
Brown v. Board of Education (1954). The Court ruled that separate educational facilities could not be equal,
overturning Plessy, and ordered an end to segregation “with all deliberate speed.”
Mapp v. Ohio (1961). The Court ruled that all evidence obtained by searches and seizures in violation of the
federal Constitution is inadmissible in a court of law.
Baker v. Carr (1962). The justices established that the Court had the authority to hear cases involving
legislative districting, even though that is a “political matter,” ultimately guaranteeing equal representation in the
state legislatures and the U.S. House of Representatives.
Griswold v. Connecticut (1965). The Court struck down a Connecticut law prohibiting counseling on the use of
contraceptives and declared that the Bill of Rights implied a right to privacy.
Brandenburg v. Ohio (1969). The Court ruled that inflammatory speech may not be punished by government
unless it is likely to incite imminent lawless action.

Table 9.2
LANDMARK SUPREME COURT CASES—cont’d
Roe v. Wade (1973). The Court held that a mother may abort her baby for any reason up to the point that the
fetus becomes “viable” and that any law passed by a state or Congress inconsistent with this holding violated
the right to privacy and the right to enter freely into contracts.
Grutter v. Bollinger (2003). The Court held that colleges and universities have a legitimate interest in
promoting diversity.
Roper v. Simmons (2005). The Court held that it is cruel and unusual punishment to execute persons for
crimes they committed before the age of 18.
Kelo v. City of New London (2005). The Court upheld the power of local government to seize property for
economic development.
Boumediene v. Bush (2008). The Court declared that foreign terrorism suspects have the constitutional right
to challenge their detention (using the writ of habeas corpus) at the Guantánamo Bay naval base in U.S. courts,
even though the detainees are not citizens.
Obergefell v. Hodges (2015). The Court held that states must both allow same-sex couples to marry and
recognize same-sex marriages from other states.
Except for cases selected for Supreme Court review, decisions made by
the appeals courts are final. Because of this finality, certain safeguards have
been built into the system. Most important is the provision of more than one
judge for every appeals case. Each court of appeals has from 3 to 28 perma-
nent judgeships. Although normally three judges hear appealed cases, in some
instances a larger number sit en banc. Another safeguard involves the assign-
ment of a Supreme Court justice as the circuit justice for each of the 12 circuits.
The circuit justice addresses requests for special action by the Supreme Court.
Circuit justices most frequently review requests for stays of execution when the
full Court cannot—mainly during its summer recess.
The Supreme Court
Article III of the Constitution vests “the judicial Power of the United States”
in the Supreme Court, which is supreme in fact as well as form. The Supreme
Court comprises a chief justice and eight associate justices. The chief justice chief justice
presides over the Court’s public sessions and conferences. In the Court’s actual
The justice on the
deliberations and decisions, however, the chief justice has no more authority
Supreme Court who
than his colleagues. Each justice casts one vote. The chief justice, though, always presides over the Court’s
speaks first when the justices deliberate. In addition, if the chief justice has public sessions
voted with the majority, he decides which justice will write the formal Court
opinion. To some extent, the chief justice’s influence is a function of his lead-
ership ability. Some chief justices, such as Earl Warren, have led the Court in

a new direction; in other instances, a forceful associate justice, such as Felix
Frankfurter, is the dominant figure.
The Constitution does not specify how many justices should sit on the
Supreme Court; Congress has the authority to change the Court’s size. In the early
nineteenth century, there were six justices; later, seven. Congress set the number at
nine in 1869, and the Court has remained that size ever since. In 1937, President
Franklin Delano Roosevelt, infuriated by several Court decisions that struck down
New Deal programs, asked Congress to enlarge the Court so that he could add
sympathetic justices to the bench. Although Congress balked, the Court yielded to
Roosevelt’s pressure and began to view his policy initiatives more favorably. The
president, in turn, dropped his efforts to enlarge the Court. The Court’s surrender
to Roosevelt came to be known as “the switch in time that saved nine.”4
How Judges Are Appointed
The president appoints federal judges. Nominees are typically prominent or

politically active members of the legal profession—former state court judges
or state or local prosecutors, prominent attorneys or elected officials, or highly
regarded law professors.5 Prior experience as a judge is not necessary, either
for appointment or, ultimately, success. Many of the greatest Supreme Court
justices, including John Marshall, Louis Brandeis, and Earl Warren had no prior
experience as judges. They were political and intellectual leaders. Marshall was
John Adams’s secretary of state. Brandeis was a prominent Boston lawyer and
policy advocate. Warren was governor of California.
In general, presidents endeavor to appoint judges who possess legal experi-
ence and good character and whose partisan and ideological views are simi-
lar to their own. During the presidencies of Richard Nixon, Ronald Reagan,
George H. W. Bush, and George W. Bush, most federal judicial appointees
were conservative Republicans. Bill Clinton’s and Barack Obama’s appointees,
in contrast tended to be liberal Democrats. George W. Bush made a strong
effort to appoint Hispanics. Bill Clinton and Barack Obama also strove to
appoint women and African Americans to the federal courts. (See Figure 9.7
for more information on diversity of court appointees.)
The Constitution requires the Senate to “advise and consent” to federal
judicial nominations, thus imposing an important check on the president’s
influence over the judiciary. Before the president formally nominates a candi-
date for a federal district judgeship, senators from the nominee’s state must
senatorial indicate that they support her. This practice is called senatorial courtesy. If
courtesy
The practice whereby the

president, before formally 4 The view that the Court “surrendered” to pressure from the elective branches is
nominating a person for a disputed. For an alternative view, see David R. Mayhew, “Supermajority Rule in the
federal district judgeship, Senate,” PS: Political Science and Politics 36 (2003): 31–36.
finds out whether the 5 Supreme Court justice Thurgood Marshall was the chief counsel for the NAACP and
senators from the argued Brown v. Board of Education before the Court. Felix Frankfurter was a prominent
candidate’s state support law professor at Harvard University and adviser to Franklin Delano Roosevelt. Hugo
the nomination Black was an important U.S. Senator.

one or both senators from a prospective nominee’s home state belong to the
president’s political party, the nomination will almost invariably receive their
blessing. Because the president’s party in the Senate will rarely support a nom-
inee opposed by a home-state senator from their ranks, these senators hold
virtual veto power over appointments to the federal bench in their own states.
Senators often see this power to grant their support as a way to reward impor-
tant allies and contributors in their states. If the state has no senator from the
president’s party, the governor or members of the state’s House delegation may
make suggestions. Senatorial courtesy is less consequential for appellate court
appointments and plays no role in Supreme Court nominations.
Once the president has formally nominated an individual, the appointment
must be considered by the Senate Judiciary Committee and confirmed by a majority
vote in the full Senate. The politics and rules of the Senate determine the fate of a
president’s judicial nominees and influence the types of people the president selects
for judicial positions. As with any legislation, approval of a nomination must come
from the relevant committee, be brought to the Senate floor, and receive a majority
of votes. There is always the risk of a filibuster, and cloture of debate requires an
affirmative vote of three-fifths of the senators. (See Chapter 6 for discussion of
these procedures.) The composition of the Senate Judiciary Committee as well as
the Senate as a whole, then, is critical in determining whether a particular nominee
will succeed. Moreover, in recent years the most important judicial nominations are
given intense scrutiny by the media, thus engaging the broader public in the process.
Before the 1950s, the Senate Judiciary Committee rarely questioned nominees
on their judicial views, focusing instead on qualifications. This changed in 1954,
however, when President Eisenhower nominated John Marshall Harlan II to suc-
ceed Robert Jackson on the Supreme Court. The Senate did not act on his nomina-
tion, and Eisenhower had to nominate him a second time. The chairman of the
Senate Judiciary Committee, a southerner, and several other southern Democratic
senators delayed any hearings, fearing that Harlan would support school integra-
tion and further strengthen the Court’s efforts to desegregate the South. When the
committee finally did hold hearings, the senators grilled Harlan about his views
on Plessy v. Ferguson and other judicial opinions. All Supreme Court nominees since
Harlan have faced questions about their views by the Judiciary Committee.
Since the mid-1950s, judicial appointments have become increasingly parti-
san and, ultimately, ideological. Today, the Senate Judiciary Committee subjects
nominees for the federal judiciary to lengthy questioning about issues rang-
ing from gun rights to abortion to federal power under the commerce clause.
Senators’ support or opposition turns on the individual’s ideological and judicial
views as much as on his or her qualifications.
Trends in Presidential Appointments. Presidents nominate individuals

who share their own political philosophy. Reagan and George H. W. Bush, for
example, sought appointees who believed in reducing government intervention
in the economy and supported the moral positions taken by the Republican
Party in recent years, particularly opposition to abortion. However, not all
Reagan and Bush appointees fulfilled their sponsors’ expectations. David
Souter, for example, appointed by President George H. W. Bush, was attacked

justices might invoke the commerce clause of the Constitution (allowing the
federal government to regulate interstate commerce) to justify the act’s constitu-
tionality. In contrast, a Court majority might also rule that a shipment of spent
fuel rods from a nuclear reactor in Kansas City to a nuclear-waste facility outside
St. Louis is not covered by this clause because the shipment occurred within the
boundaries of a single state and thus did not constitute interstate commerce.
In short, judges and justices continually elaborate, embellish, and even
rewrite the rules by which private and public life are organized. However, judi-
cial interpretation of statutes is subject to review. Statutory interpretation, even
if conducted by the nation’s highest court, is exposed to legislative review. If
Congress disagrees with a specific statutory interpretation, it may amend the
legislation to overcome the Court’s objection. In 2005, for example, in United
States v. Booker, the Supreme Court struck down the mandatory sentencing rules
enacted in 1984.6 The rules severely limited judicial discretion in sentencing and
had long been resented by the bench. The Court found that mandatory minimum
sentences violated the Sixth Amendment, because the latter required that only
evidence provided at trial, together with the defendant’s previous criminal record,
could be used in determining a sentence. In response, members of Congress
vowed to reinstate the guidelines through new legislation. Since the Booker deci-
sion, mandatory sentencing guidelines, at both state and federal levels, remain
in flux. However, the thrust of Booker remains largely in effect, rendering legis-
latively constructed guidelines essentially advisory (not mandatory). Of course,
if the Court makes a constitutional ruling, Congress cannot abrogate that ruling
through new legislation. Congress would need to commence the constitutional
amendment process to overturn an interpretation with which it disagrees.
THE POWER OF JUDICIAL REVIEW
The phrase judicial review refers to the power of the judiciary to examine and, judicial review
if necessary, invalidate actions by the legislative and executive branches. The
The power of the courts
phrase sometimes also describes the scrutiny that appellate courts give to the
to determine whether the
actions of trial courts, but strictly speaking, that is an improper usage. actions of the president,
The development of judicial review, which is not expressed explicitly in the the Congress, and the
Constitution, is one of the most powerful expressions of the independent judi- state legislatures are
ciary. In countries without an independent judiciary and without judicial review, or are not consistent
the parliament or the executive is the ultimate authority. In English law, for with the Constitution.
example, the Parliament is sovereign. Judicial review exists only in scrutinizing The Supreme Court
administration of the laws. An individual cannot challenge an act of Parliament asserted the power to
and ask that the courts void that law as a violation of the constitution. But in review federal statutes
the U.S. system of government, judicial review is an essential means by which in Marbury v. Madison
(1803)
the judiciary checks the legislature and the executive.
6 United States v. Booker, 543 U.S. 220 (2005).
The Power of Judicial Review 345

Judicial Review of Acts of Congress
Because the Constitution does not give the Supreme Court the power of judicial
review of congressional enactments, the Court’s exercise of it may be consid-
ered a usurpation. Among the proposals debated at the Constitutional Conven-
tion was one to create a council composed of the president and the judiciary
that would share veto power over legislation. Another proposal was to route all
legislation through both the Court and the president; overruling a veto by either
one would have required a two-thirds vote of the House and the Senate. Those
and other proposals were rejected, and no further effort was made to give the
Supreme Court review power over the other branches. This does not prove that
the framers opposed judicial review, but it does indicate that “if they intended
to provide for it in the Constitution, they did so in a most obscure fashion.”7
Disputes over the framers’ intentions were settled in 1803 in Marbury v.
Madison.8 In that case, William Marbury sued Secretary of State James Madison
for Madison’s failure to complete Marbury’s appointment to a lower judgeship,
which had been initiated by the outgoing administration of President John
Adams. Apart from the details of the case, Chief Justice John Marshall used
the case to declare a portion of a law unconstitutional. In effect, he stated that
although the substance of Marbury’s request was not unreasonable, the Court’s
jurisdiction in the matter was based on a section of the Judiciary Act of 1789,
which the Court declared unconstitutional.
Although Congress and the president have often been at odds with the
Court, its legal power to review acts of Congress has not been seriously ques-
tioned since 1803. One reason is that judicial power has come to be accepted
as natural, if not intended. Another reason is that during the early years of
the Republic, the Supreme Court used its power sparingly, striking down only
two pieces of legislation during the first 75 years of its history. One of these
decisions was the 1857 Dred Scott ruling, which invalidated the Missouri Com-
promise and helped precipitate the Civil War. In Dred Scott v. Sandford, Chief
Justice Roger Taney wrote in the majority opinion that the fact that a slave,
Dred Scott, had been transported to a free state (Illinois) and a free territory
(Wisconsin) before returning to the slave state of Missouri did not alter the fact
that he was property.9 This ruling had the effect of invalidating a portion of the
Missouri Compromise, thus permitting slavery in all the country’s territories.
More recently, with the power of judicial review accepted, the Court has been
more willing to use it. Between 1985 and 2014, the Supreme Court struck down
58 acts of Congress in whole or in part10 (Figure 9.3).
7 C. Herman Pritchett, The American Constitution (New York: McGraw-Hill, 1959), p. 138.
8 Marbury v. Madison, 1 Cranch 137 (1803).
9 Dred Scott v. Sandford, 60 U.S. 393 (1857).
10 For an analysis of the Court’s use of judicial review to nullify acts of Congress, see
Ryan Emenaker, “Constitutional Interpretation and Congressional Overrides: Changing
Trends in Court–Congress Relations,” Journal of Legal Metrics 2 (2014): 197–223.

Figure 9.3
SUPREME COURT RULINGS INVALIDATING
ACTS OF CONGRESS
NUMBER OF CASES
Before 1865 3
1865–1894 15
1895–1924 31
1925–1954 23
1955–1984 52
1985–2014 58
SOURCE: U.S. Government Printing Office, www.congress.gov/constitution-annotated

(accessed 8/17/16).
Judicial Review of State Actions
The power of the Supreme Court to review state legislation or other state action
and to determine its constitutionality is neither granted by the Constitution
nor inherent in the federal system. But the logic of the supremacy clause of supremacy clause
Article VI—which declares the Constitution and laws made under its authority
A clause of Article VI
to be the supreme law of the land—is very strong. Furthermore, the Judiciary
of the Constitution that
Act of 1789 conferred on the Court the power to reverse state constitutions
states that all laws
and laws whenever they are clearly in conflict with the U.S. Constitution, federal passed by the national
laws, or treaties.11 This power gives the Supreme Court jurisdiction over all of government and all
the millions of cases handled by American courts each year. treaties are the supreme
The history of civil rights protections abounds with examples of state laws of the land and
laws that were overturned because the statutes violated the Fourteenth superior to all laws
Amendment’s guarantees of due process and equal protection. For example, adopted by any state or
in the 1954 case of Brown v. Board of Education, the Court overturned stat- any subdivision
utes in Kansas, South Carolina, Virginia, and Delaware that either required
or permitted segregated public schools, on the basis that such statutes denied
black schoolchildren equal protection of the law.12 In 1967 in Loving v. Virginia,
the Court invalidated a Virginia statute prohibiting interracial marriages.13 In
2015 in Obergefell v. Hodges, the Court held that “the Fourteenth Amendment
11 This review power was affirmed by the Supreme Court in Martin v. Hunter’s Lessee, 14
U.S. 304 (1816).
12 Brown v. Board of Education, 347 U.S. 483 (1954).
13 Loving v. Virginia, 388 U.S. 1 (1967).

requires a state to license a marriage between two people of the same sex
and to recognize a marriage between two people of the same sex when their
marriage was lawfully licensed and performed out-of-state,” thus invalidating
a Michigan law prohibiting same-sex unions.14 State statutes in other areas are
equally subject to challenge. Thus the Court has overturned state laws that
conflict with federal law: in 2012 in Arizona et al. v. United States, for instance,
the Court struck down parts of an Arizona law regulating immigration on the
grounds that it was preempted by federal law.15
Judicial Review of Federal Agency Actions
Although Congress makes the law, it can hardly administer the thousands of
programs it has enacted and must delegate power to the president and to a
huge bureaucracy to achieve its purposes. For example, if Congress wishes
to improve air quality, it cannot possibly anticipate all the circumstances that
may arise with respect to its general goal. Inevitably Congress must delegate
to the executive substantial discretionary power to determine the best ways to
achieve improved air quality in the face of changing circumstances. Thus, over
time, almost any congressional program will result in thousands and thou-
sands of pages of administrative regulations developed by executive agencies.
The issue of delegation of power has led to a number of court decisions over
the past two centuries, generally involving the question of the scope of the delega-
tion. Courts have also been called on to decide whether the rules and regulations
adopted by federal agencies are consistent with Congress’s express or implied intent.
As presidential power expanded during the New Deal era, one measure of
increased congressional subordination to the executive was the enactment of
laws that contained few if any principles limiting executive discretion. Congress
enacted legislation, often at the president’s behest, that gave the executive vir-
tually unfettered authority to address a particular concern. For example, the
Emergency Price Control Act of 1942 authorized the executive to set “fair and
equitable” prices without indicating what those terms might mean. Although the
Court initially challenged such delegations of power to the president during the
New Deal, a confrontation with President Franklin Delano Roosevelt caused the
Court to retreat from its position. Perhaps as a result, no congressional delega-
tion of power to the president has been struck down as impermissibly broad
since then. In the last two decades in particular, the Supreme Court has found
that as long as federal agencies developed rules and regulations “based upon
a permissible construction” or “reasonable interpretation” of Congress’s stat-
ute, the judiciary would accept the views of the executive branch. Generally the
courts defer to administrative agencies as long as those agencies have undertaken
a formal rule-making process and have carried out the conditions prescribed by
14 Obergefell v. Hodges 576 U.S. ___ (2015). Quotation from SCOTUSblog, “Obergefell v.
Hodges,” www.scotusblog.com/case-files/cases/obergefell-v-hodge (accessed 9/16/2015).
15 Arizona et al. v. United States, 567 U.S. ____ (2012).

statutes governing agency rule making. These statutes include the 1946 Adminis-
trative Procedure Act, which requires agencies to notify parties affected by pro-
posed rules and to allow them time to comment before the rules go into effect.
Judicial Review and Presidential Power
The federal courts may also review the actions of the president. As we saw in
Chapter 7, presidents have increasingly made use of unilateral executive powers
rather than relying on congressional legislation to achieve their objectives. Often,
presidential orders and actions have been challenged in the federal courts by mem-
bers of Congress and by individuals and groups opposing the president’s policies.
In recent years, the federal bench has generally upheld assertions of presidential
power in such realms as foreign policy, war and emergency powers, legislative
power, and administrative authority. Indeed, the federal judiciary has sometimes
rationalized extraordinary presidential claims made for temporary purposes—that
is, the Court has converted them into permanent instruments of presidential
government. Consider Richard Nixon’s sweeping claims of executive privilege.
In United States v. Nixon, although the Court rejected the president’s refusal to turn
over tape recordings to congressional investigators, for the first time the justices
recognized the validity of the principle of executive privilege and discussed situ-
ations in which such claims might be appropriate.16 This judicial recognition of
executive privilege encouraged presidents Bill Clinton and George W. Bush to
base broad claims on that principle during their administrations.17 Executive privi-
lege has even been invoked to protect the deliberations of the vice president from
congressional scrutiny. This pattern of judicial deference to presidential authority
was also manifest in the Supreme Court’s decisions regarding President Bush’s war
on terrorism. Perhaps the most important of these cases was Hamdi v. Rumsfeld.18
In 2004, the Court ruled that alleged terrorist and U.S. citizen Yaser Esam Hamdi
was entitled to a lawyer and “a fair opportunity to rebut the government’s factual
assertions.” However, the Court affirmed that the president possessed the author-
ity to declare a U.S. citizen an enemy combatant and order that such an individual
be held in federal detention. Several justices intimated that once designated an
enemy combatant, a U.S. citizen might be tried before a military tribunal, with the
normal presumption of innocence suspended. In 2006, in Hamdan v. Rumsfeld,
the Court ruled that the military commissions established to try enemy combat-
ants and other detainees violated both the Uniform Code of Military Justice and
the Geneva Conventions.19 Thus the Supreme Court did assert that presidential
16 United States v. Nixon, 418 U.S. 683 (1974).

17 On Clinton, see Jonathan Turley, “Paradise Lost: The Clinton Administration and
the Erosion of Executive Privilege,” Maryland Law Review 60 (2001): 295. On Bush,
see Jeffrey P. Carlin, “Walker v. Cheney: Politics, Posturing, and Executive Privilege,”
Southern California Law Review 76 (November 2002): 235.
18 Hamdi v. Rumsfeld, 542 U.S. 507 (2004).
19 Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

actions were subject to judicial scrutiny and placed some constraints on the presi-
dent’s power. But at the same time, it affirmed the president’s unilateral power
to declare individuals, including U.S. citizens, “enemy combatants” whom federal
authorities could detain under adverse legal circumstances.
In June 2016 the Supreme Court sustained an appeals court decision block-
ing President Obama’s ambitious program to prevent millions of undocumented
immigrants from being deported. At issue was whether President Obama had
abused his office in formulating immigration policy by using an executive order
instead of the legislative and administrative processes. The eight-member Court
(in the wake of the death of Justice Antonin Scalia) split 4–4, thereby letting
stand the lower-court decision.20 The Court thus thwarted an attempt to create
new policy through executive action alone.
Judicial Review and Lawmaking
Much of the courts’ work involves applying statutes to particular cases. Over
the centuries, however, judges have developed a body of rules and principles
of interpretation that are not grounded in specific statutes. This body of judge-
made law is called common law.
The appellate courts are in another realm. Their rulings can be considered
laws, but governing only the behavior of the judiciary. They influence citizens’
conduct only because, in the words of Justice Oliver Wendell Holmes, Jr. (who
served on the Supreme Court from 1902 to 1932), lawyers make “prophecies of
what the courts will do in fact.”21
The written opinion of an appellate court is about halfway between com-
mon law and statutory law. It is judge made and draws heavily on the prec-
edents of previous cases. In that it tries to articulate the rule of law controlling
the case in question and future cases like it, it is like a statute. But a statute
addresses the future conduct of citizens, whereas a written opinion mainly
addresses the willingness or ability of future courts to take cases and render
favorable opinions.
An example may clarify the distinction. In Gideon v. Wainwright, the Supreme
Court ordered a new trial for Clarence Earl Gideon, an indigent defendant,
because he had been denied the right to legal counsel. This ruling said to all trial
judges and prosecutors that henceforth they would be wasting their time if they
cut corners in the trials of indigent defendants.22 The Court was thereby predict-
ing what it would and would not do in future cases of this sort. It also invited
thousands of prisoners to appeal their convictions.
Many areas of civil law have been constructed in the same way—by judicial
messages to other judges, some of which are codified eventually in legislative
enactments. It has become “the law,” for example, that employers are liable
20 United States v. Texas, No. 15-674.

21 Oliver Wendell Holmes, Jr., “The Path of the Law,” Harvard Law Review 10 (1897): 457.
22 Gideon v. Wainwright, 372 U.S. 335 (1963).

for injuries in the workplace without regard to negligence. But the law in this
instance is simply a series of messages to lawyers that they should advise their
corporate clients not to appeal injury decisions.
In the realm of criminal law, almost all the dramatic changes in the treat-
ment of criminals and persons accused of crimes have been made by the appel-
late courts, especially the Supreme Court. Indeed, the Supreme Court ignited a
veritable revolution in the criminal process with three cases over less than five
years. The first, Gideon v. Wainwright, in 1963, was just discussed. The second,
Escobedo v. Illinois, in 1964, gave suspects the right to remain silent and the right
to have counsel present during questioning.23 But the decision left confusion
that allowed lower courts to make differing decisions. In the third case, Miranda
v. Arizona, in 1966, the Court cleared up the confusion by setting forth what is
known as the Miranda rule: arrested people have the right to remain silent, the
right to be informed that anything they say can be held against them, and the
right to counsel before and during police interrogation.24
One of the most significant changes wrought by the Supreme Court was
the revolution in legislative representation unleashed by the 1962 landmark case
of Baker v. Carr.25 Here, the Court held that it could no longer avoid reviewing
complaints about the apportionment of seats in state legislatures. Following
that decision, the federal courts went on to force reapportionment of all state,
county, and local legislatures nationwide.
As these cases illustrate, the appellate courts are intimately involved in creating
and interpreting laws. Many experts on court history and constitutional law criti-
cize the federal appellate courts for being too willing to introduce radical change.
Often these experts are troubled by the courts’ willingness (especially the Supreme
Court) to jump into such cases prematurely—before the constitutional issues have
been fully clarified by decisions of district and appeals courts in many related cases
in various parts of the country.26 But from the perspective of the appellate judi-
ciary, and especially the Supreme Court, the situation is one of choosing between
the lesser of two evils: they must take the cases as they come and then weigh the
risks of opening new options against the risks of embracing the status quo.
THE SUPREME COURT IN ACTION
The Supreme Court sits at the pinnacle of the U.S. judiciary. It is the only court
mentioned in the Constitution, and it is one of the most distinctive politi-
cal bodies created by the U.S. system. The Court is often the focal point for
23 Escobedo v. Illinois, 378 U.S. 478 (1964).

24 Miranda v. Arizona, 384 U.S. 436 (1966).
25 Baker v. Carr, 369 U.S. 186 (1962).
26 See Philip B. Kurland, Politics, the Constitution, and the Warren Court (Chicago:
University of Chicago Press, 1970).
The Supreme Court in Action 351

understanding the judiciary because of its special constitutional status and
because it embodies the many principles of the American court system—its
independence, its durability, the collective nature of court decision making, and
the delicate balance that judges strike between historical precedent and new
interpretation. The Court plays a vital role in government as it is part of the
structure of checks and balances that prevents the legislative and executive
branches from abusing their power. The Court also operates as an institution
unto itself, with its own internal rules for decision making. In this way, it has its
own version of the policy principle discussed in Chapter 1.
How Cases Reach the Supreme Court
Given the millions of disputes that arise every year, the Supreme Court’s job
would be impossible if it were not able to control the flow of cases and its
own caseload. The Court has original jurisdiction in a limited variety of cases
defined by the Constitution, including (1) cases between the United States and
one of the states, (2) cases between two or more states, (3) cases involving for-
eign ambassadors or other ministers, and (4) cases brought by one state against
citizens of another state or against a foreign country. The most important of
these are disputes between states over land, water, or old debts. Generally the
Court deals with these cases by appointing a “special master,” usually a retired
judge, to hear the case and present a report. The Court then allows the disputing
states to present arguments for or against the master’s opinion.27
Rules of Access. Over the years, the federal courts have developed rules
governing which cases within their jurisdiction they will and will not hear. Thus
the Court is an institution very much in control of its own agenda, which,
according to the institution principle, gives it considerable independence to fol-
low its members’ preferences.28 To have access to the courts, cases must meet
certain criteria that are initially applied by the trial court but may be reconsidered
by appellate courts. These rules of access fall into three major categories: case or
controversy, standing, and mootness.
Both Article III of the Constitution and past Supreme Court decisions
define judicial power as extending only to “cases and controversies.” That is,
a case before a court must involve an actual controversy, not a hypothetical
ripeness one, with two truly adversarial parties (These criteria are called ripeness). The
courts have interpreted this language to mean they do not have the power to
A criterion used by
render advisory opinions to legislatures or agencies about the constitutional-
courts to avoid hearing
ity of proposed laws or regulations. Furthermore, even after a law is enacted,
cases that depend on
hypothetical future
events
27 Walter F. Murphy, “The Supreme Court of the United States,” in Encyclopedia of the
American Judicial System: Studies of the Principal Institutions and Processes of Law,
Robert J. Janosik, ed. (New York: Scribner, 1987).
28 The appellate jurisdiction of the courts is determined by Congress. Currently, this
jurisdiction is quite expansive, but Congress may restrict this at any time.

the courts generally refuse to consider its constitutionality until it is actually
applied.
Those seeking to bring a case must also have standing—they must show a standing
substantial stake in the case’s outcome. The traditional requirement for stand-
The right of an individual
ing has been that one must show injury to oneself; the injury can be personal,
or an organization to
economic, or even aesthetic, for example. For a group or class of people to have initiate a court case
standing (as in class-action suits), each member must show specific injury. This
means that a general interest in the environment, for instance, does not provide
a group with a sufficient basis for standing. class-action suit
The third criterion in determining whether the Supreme Court will hear a
A procedural device that
case is mootness. In theory, this requirement disqualifies cases that are brought permits a large number
too late—after the relevant facts have changed or the problem has been resolved of people with common
by other means. Mootness, however, is subject to the discretion of the courts, interests to join together
which have begun to relax the rules pertaining to this criterion, particularly in under a representative
cases in which a situation that has been resolved is likely to recur. In the abortion party to bring or defend
case of Roe v. Wade, for example, the Court rejected the lower court’s argument a lawsuit
that because the pregnancy had already come to term, the case was moot. The
Court agreed to hear the case because no pregnancy was likely to outlast the mootness
lengthy appeals process.
Putting aside the formal criteria, the Supreme Court is most likely to accept A criterion used by courts
cases that involve conflicting decisions by federal circuit courts, cases that to avoid hearing cases
present important questions of civil rights or civil liberties, and cases in which that no longer require
resolution
the federal government is the appellant.29 Ultimately, however, the question of
which cases are accepted can come down to the justices’ preferences and priori-
ties. If several justices believe that the Court should intervene in a particular
area of policy or politics, they are likely to look for a case or cases that will be
vehicles for judicial intervention. For several decades, for example, the Court
was not interested in considering challenges to affirmative action or other pro-
grams designed to provide particular benefits to minorities. Eventually, however,
several of the more conservative justices have sought to push back the limits
of affirmative action and racial preference and have therefore accepted cases
that allow them to do so. In 1995, the Court’s decisions in three cases placed
new restrictions on federal affirmative action programs, school desegregation
efforts, and attempts to increase minority representation in Congress through
the creation of “minority districts” (see Chapter 11).30
Most cases reach the Supreme Court through a writ of certiorari, a formal writ of certiorari
request to have the Court review a lower-court decision (Figure 9.4). Certiorari
A formal request by an
is an order to a lower court to deliver the records of a particular case to be
appellant to have the
reviewed for legal errors. The term is sometimes shortened to cert, and cases Supreme Court review a
deemed to merit certiorari are referred to as certworthy. An individual who loses in decision of a lower court;
certiorari is from a Latin
word meaning “to make
29 Gregory A. Caldeira and John R. Wright, “Organized Interests and Agenda Setting in more certain”
the U.S. Supreme Court,” American Political Science Review 82, no. 4 (December 1988):
1109–27.
30 Adarand Constructors v. Pena, 115 U.S. 200 (1995); Missouri v. Jenkins, 515 U.S. 70 (1995);
Miller v. Johnson, 515 U.S. 900 (1995).

Figure 9.4
REACHING THE SUPREME COURT THROUGH CERTIORARI
U.S. Supreme Court was

created by Article III of Constitution
(justices appointed for life).
Certiorari
FEDERAL discretionary STAT E
COURTS review COURTS
U.S. Court of Appeals State supreme courts

(12 circuits) decide issues of law
decides questions of law based based on briefs and oral
on briefs and oral argument. argument.
Intermediate
appellate courts
(in 40 states)
State trial courts,

U.S. District Courts
often known as superior or
(94 districts)
circuit courts, try questions of
decide issues of law and fact,
law and fact, with and
with and without a jury.
without a jury.
Federal agencies Inferior trial courts
a lower federal court or a state court and wants the Supreme Court to review the
decision has 90 days to file a petition for a writ of certiorari with the clerk of the
Supreme Court. There are two types of petitions: paid petitions and petitions in
forma pauperis (“in the form of a pauper”). The former requires payment of filing
fees, submission of a certain number of copies, and compliance with numerous
other rules. For in forma pauperis petitions, usually filed by prison inmates, the
Court waives the fees and most other requirements.
Since 1972, most of the justices have participated in a “certiorari pool” in
which their law clerks evaluate the petitions. Each petition is reviewed by one

clerk, who writes a memo summarizing the facts and issues and making a rec-
ommendation for all the justices participating in the pool. Clerks for the other
justices add their comments. After the justices have reviewed the memos, any
one of them may place any case on the discuss list, which is circulated by the
chief justice. If a case is not placed on the list, it is automatically denied certiorari.
Cases placed on the list are considered and voted on during the justices’ closed-
door conference. For certiorari to be granted, four justices must be convinced
that the case satisfies Rule 10 of the Rules of the U.S. Supreme Court: that
certiorari is not a matter of right but is to be granted only when there are special
and compelling reasons. These include conflicting decisions by two or more cir-
cuit courts or by two or more state courts of last resort, conflicts between circuit
courts and state courts of last resort, decisions by circuit courts on matters of
federal law that the Supreme Court should settle, and a circuit court decision on
an important question that conflicts with a Supreme Court decision. The Court
usually takes action only when there are conflicts among the lower courts about
what the law should be, when an important legal question raised in the lower
courts has not been definitively answered, or when a lower court deviates from
the principles and precedents established by the high court. The support of four
justices is needed for certiorari, and few cases satisfy this requirement. In recent
sessions, although thousands of petitions have been filed (Figure 9.5), the Court
has granted certiorari to fewer than 90 petitioners each year—about 1 percent of
those seeking a Supreme Court review.
A handful of cases reach the Supreme Court through avenues other than
certiorari. One is the writ of certification, which can be used when a Court of
Appeals asks the Supreme Court for instructions on a point of law that has
never been decided. Another avenue is the writ of appeal, which serves to
appeal the decision of a three-judge district court.
Controlling the Flow of Cases

In addition to the judges, two other actors are key in shaping the flow of cases
through the federal courts: the solicitor general and the federal law clerks.
The Solicitor General. If any person has greater influence than individual
justices over the work of the Supreme Court, it is the solicitor general of the
United States. This person is third in status in the Justice Department (below
the attorney general and the deputy attorney general) but is the top government
lawyer in virtually all cases before the appellate courts in which the government
is a party. Although others can regulate the flow of cases, the solicitor general
has the greatest control, with no review of his or her actions by any higher
authority in the executive branch. More than half the Supreme Court’s total
workload consists of cases under the charge of the solicitor general.
The solicitor general exercises especially strong influence by screening cases
involving the federal government long before they approach the Supreme Court;
indeed, the justices rely on the solicitor general to do so. Typically, more requests
for appeals are rejected than are accepted by the solicitor general. Agency heads

Figure 9.5
CASES FILED IN THE U.S. SUPREME COURT
10,000
9,000
8,000
7,000
NUMBER OF CASES
6,000
5,000
4,000
3,000
2,000
1,000
0
1940 1945 1950 1955 1960 1965 1970 1975 1980 1985 1990 1995 2000 2005 2010 2015
TERM
SOURCES: Years 1938–69: successive volumes of U.S. Bureau of the Census, Statistical Abstract of
the United States (Washington, DC: Government Printing Office); 1970–79: Office of the Clerk of the
Supreme Court; 1980–2010: U.S. Census Bureau, www.census.gov/prod/2011pubs/12statab/law.pdf
(accessed 6/11/13); 2010–15: Supreme Court of the United States, Cases on Docket, www.uscourts.
gov/statistics-reports/caseload-statistics-data-tables (accessed 7/11/16).
may lobby the president or otherwise try to circumvent the solicitor general,
and a few of the independent agencies have a statutory right to make direct
appeals, but without the solicitor general’s support these are seldom reviewed
by the Court.
amicus curiae By writing an amicus curiae (“friend of the court”) brief, the solicitor gen-
“Friend of the court,” an eral can enter a case even when the federal government is not a direct litigant.
individual or group that A friend of the court is not a direct party to a case but has a vital interest in its
is not party to a lawsuit outcome. Thus when the government has such an interest, the solicitor general
but has an interest in can file as amicus curiae, or the Court can invite such a brief because it wants an
influencing the outcome opinion in writing. Other interested parties may file briefs as well.
In addition to influencing the flow of cases, the solicitor general can shape
the arguments used before the Court by the way in which he or she characterizes
the issues. This individual is the person appearing most frequently before the
Court and, theoretically, the most disinterested. The solicitor general’s credibility

is not hurt when several times each year he or she withdraws a case with the
admission that the government has made an error.31
Law Clerks. Every federal judge employs law clerks to research legal issues
and assist in preparing opinions. Each justice is assigned four clerks, almost
always honors graduates of the nation’s most prestigious law schools. A clerk-
ship with a Supreme Court justice generally indicates that the fortunate individ-
ual is likely to reach the very top of the legal profession. One of the clerks’ most
important roles is screening the thousands of petitions for writs of certiorari that
come before the Court.32 Some justices likely rely heavily on their clerks for
advice in writing opinions and deciding whether an individual case ought to be
heard. It is often rumored that certain opinions were actually written by a clerk
rather than a justice.33 Indeed, at the end of long judicial careers, justices such
as William O. Douglas and Thurgood Marshall had become so infirm that they
had to rely on the judgments of their law clerks.
The Supreme Court’s Procedures
The Preparation. The Court’s decision to accept a case is the beginning of

a lengthy and complex process (Figure 9.6). First, attorneys on both sides must
prepare briefs—written documents explaining why the Court should rule in brief
favor of their client. The document filed by the individual bringing the case,
A written document
called the petitioner’s brief, summarizes the facts of the case and presents the
in which an attorney
legal basis on which the Court is being asked to overturn the lower court’s deci- explains—using case
sion. The document filed by the side that prevailed in the lower court, called precedents—why the
the respondent’s brief, explains why the Court should affirm the lower court’s Court should rule in favor
verdict. The petitioners then file a brief answering and attempting to refute the of his or her client
points made in the respondent’s brief. This document is called the petitioner’s
reply brief. Briefs contain many references to precedents showing that other
courts have frequently ruled in the same way that the Supreme Court is being
asked to rule.
As the attorneys prepare their briefs, they often ask sympathetic interest
groups for help by means of amicus curiae briefs. In a case involving separation
of church and state, for example, liberal groups such as the ACLU and People
31 On the strategic and informational role played by the solicitor general, see Kevin
McGuire, “Explaining Executive Success in the U.S. Supreme Court,” Political
Research Quarterly 51 (1998): 505–26. Also see Michael Bailey, Brian Kamoie, and
Forrest Maltzman, “Signals from the Tenth Justice: The Political Role of the Solicitor
General in Supreme Court Decision Making,” American Journal of Political Science 49
(2005): 72–85.
32 H. W. Perry, Jr., Deciding to Decide: Agenda Setting in the United States Supreme Court
(Cambridge: Harvard University Press, 1991).
33 Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Struggles inside the
Supreme Court (New York: Times Books, 1998).

Figure 9.6
THE SUPREME COURT’S DECISION-MAKING PROCESS
Petitions Certiorari pool Discuss list Conference
Amicus
Briefs Oral argument Conference Opinions and dissents
curiae briefs
for the American Way are likely to be asked to file amicus briefs in support of
strict separation, whereas conservative religious groups—the Family Research
Council or Focus on the Family, for example—are likely to file amicus briefs
advocating increased public support for religious ideas. Often dozens of briefs
are filed on each side of a major case.
oral argument Oral Argument. During the next stage, oral argument, attorneys for both
sides present their positions before the Court and answer the justices’ questions.
The stage in Supreme
Each attorney has only a half hour to present his case, including interruptions
Court proceedings in
which attorneys for both
for questions. Oral argument can be very important to the outcome, for it allows
sides appear before the
justices to better understand the heart of a case and raise questions that the
Court to present their opposing sides’ briefs do not address. Sometimes justices go beyond the strictly
positions and answer legal issues and ask opposing counsel to discuss the case’s implications for the
questions posed by the Court and the nation at large.34 In oral arguments on the constitutionality of
justices the Defense of Marriage Act in 2013, for example, Justice Kennedy frequently
questioned whether the definition of marriage resided with the states rather
than with the federal government.
The Conference. After oral argument, the Court discusses the case in its
Wednesday or Friday conference. The chief justice presides and speaks first; the
others follow in order of seniority. No outsiders are permitted to attend. The
justices reach a decision on the basis of a majority vote. As the case is discussed,
justices may try to influence one another’s opinions. At times, this may result in
compromise decisions.
Opinion Writing. After a decision has been reached, one of the members
opinion of the majority is assigned to write the opinion. This assignment is made by the
The written explanation
of the Supreme Court’s
decision in a particular 34 On the consequences of oral argument for decision making, see Timothy R. Johnson,
case Paul J. Wahlbeck, and James F. Spriggs II, “The Influence of Oral Arguments on the U.S.
Supreme Court,” American Political Science Review 100, no. 1 (February 2006): 99–113.

chief justice or by the most senior justice in the majority if the chief justice is
on the losing side. The assignment of the opinion can make a significant differ-
ence to the interpretation of a decision, as its wording and emphasis can have
important implications for future litigation. Thus in assigning an opinion, the
justices must consider the impression the case will make on lawyers and the
public, as well as the probability that one justice’s opinion will be more widely
accepted than another’s.35
This tactical consideration occurred dramatically in 1944, when Chief
Justice Harlan Fiske Stone chose Justice Felix Frankfurter to write the opinion
in the “white primary” case Smith v. Allwright, which overturned the southern
practice of prohibiting black participation in primaries. The day after Stone
made the assignment, Justice Robert Jackson wrote a letter to Stone arguing that
Frankfurter, a foreign-born Jew from New England, would not win over the
South with his opinion, regardless of his brilliance. Stone accepted the advice
and substituted Justice Stanley F. Reed, an American-born Protestant from
Kentucky and a southern Democrat in good standing.36
Once the majority opinion is drafted, it is circulated to the other justices.
Some members of the majority may agree with both the outcome and the ratio-
nale but wish to highlight a particular point and so draft a concurring opinion,
called a regular concurrence. Alternatively, one or more justices may agree with concurrence
the majority but disagree with the rationale. Those justices may draft a special
An opinion agreeing
concurrence, explaining their disagreements with the majority. The pattern of
with the decision of the
opinions that emerge on a case ultimately depends on bargaining among the majority in a Supreme
justices, as suggested by the collective action principle. Court case but not with
the rationale provided in
Dissent. Justices who disagree with the majority decision may publicize the the majority opinion
character of their disagreement in the form of a dissenting opinion, which is gen-
erally assigned by the senior justice among the dissenters. Dissents can signal to
defeated political forces that some members of the Court support their position. dissenting opinion
Ironically, the most dependable way an individual justice can exercise a direct influ-
A decision written by a
ence on the Court is to write a dissent. Because there is no need to please a majority,
justice who voted with
dissenting opinions can be more eloquent and less guarded than majority opinions.
the minority opinion in a
The current Supreme Court often produces 5–4 decisions, with dissenters writing particular case in which
long and detailed opinions that, they hope, will convince a swing justice to join the justice fully explains
their side on the next round of cases addressing a similar topic. Thus, for example, the reasoning behind his
Justice David Souter wrote a 34-page dissent in a 2002 case upholding the use of or her opinion
government-funded school vouchers to pay for parochial school tuition. Souter
called the decision “a dramatic departure from basic Establishment Clause princi-
ple” and went on to say that he hoped it would be reconsidered by a future court.37
35 For this and other strategic aspects of the Court’s process, see Forrest Maltzman,
James F. Spriggs II, and Paul J. Wahlbeck, Crafting Law on the Supreme Court: The
Collegial Game (New York: Cambridge University Press, 2001).
36 Smith v. Allwright, 321 U.S. 649 (1944).
37 Warren Richey, “Dissenting Opinions as a Window on Future Rulings,” Christian
Science Monitor, July 1, 2002, p. 1.

Dissent plays a special role in the work and impact of the Court because it
amounts to an appeal to lawyers nationwide to keep bringing cases of the sort
at issue. Therefore, an effective dissent influences the flow of cases through the
Court as well as the arguments that lawyers will make in later cases.
These rules of collective decision making shape how the Supreme Court
addresses cases. But they are just the structure within which judges operate. The
rules indicate that judicial authority is restrained and cautious, incremental and
rational. But ultimately the rules reveal little about how judges will deal with the
great political and social questions of the day. How the courts ultimately decide
matters of law depends on the views of those in the judiciary and the nature
of the problems they address and on the relationship of the courts to the other
branches of government.
JUDICIAL DECISION MAKING
The judiciary is conservative in its procedures, but its effect on society can be
radical. That effect depends on numerous factors, two of which stand out above
the rest. The first is the individual members of the Supreme Court, their atti-
tudes and goals, and their relationships with one another. The second is the
other branches of government, particularly Congress.
The Supreme Court Justices
The Supreme Court explains its decisions in terms of law and precedent. But
ultimately the Court itself decides what laws mean and what importance prec-
edents will have. Throughout its history, the Court has shaped and reshaped the
law. If any individual judges in the country influence the federal judiciary, the
Supreme Court justices are the ones who do.
From the 1950s to the 1980s, the Court was active in such areas as civil
rights, civil liberties, abortion, voting rights, and police procedures. It was
more responsible than any other governmental institution for breaking down
America’s system of racial segregation. It virtually prohibited states from inter-
fering with a woman’s right to seek an abortion, sharply curtailed state restric-
tions on voting rights, and placed restrictions on the behavior of local police
and prosecutors in criminal cases. But since the early 1980s, resignations, deaths,
and new appointments have brought many shifts in the mix of ideologies rep-
resented on the Court. In a series of decisions between 1989 and 2001, conser-
vative justices appointed by Ronald Reagan and George H. W. Bush were able
to swing the Court to a more conservative position on civil rights, affirmative
action, abortion rights, property rights, criminal procedure, voting rights, deseg-
regation, and the power of the national government.
The importance of ideology was very clear during the Court’s 2000–01
term. In key decisions, the most conservative justices—Scalia, Thomas, and

in King v. Burwell, Roberts supported a lower-court opinions that millions of
Americans were entitled to public subsidies that keep insurance affordable
whether the subsidies were established by individual states or the federal
government.45
Finally, the Court’s policy influence comes not from the “horse race” vote
results often trumpeted by the media but from the written opinions providing the
constitutional or statutory rationale for policy in the future. These opinions establish
the guidelines that govern how federal courts must decide similar cases in the future.
Activism and Restraint. One element of judicial philosophy is the issue of

activism versus restraint. Over the years, some justices have believed that courts
should interpret the Constitution according to the framers’ stated intentions and
defer to the views of Congress when interpreting federal statutes. Justice Felix
Frankfurter, for example, advocated judicial deference to legislative bodies and
avoidance of the “political thicket” that arises when deciding questions that are
judicial restraint essentially political rather than legal. Advocates of judicial restraint are some-
times called strict constructionists because they look strictly to the words of the
The judicial philosophy
Constitution in interpreting its meaning.
whose adherents refuse
The alternative to restraint is judicial activism, which involves going
to go beyond the text
of the Constitution in
beyond the words of the Constitution or a statute to consider the broader
interpreting its meaning societal implications of its decisions. Activist judges sometimes strike out in
new directions, promulgating new interpretations or inventing new legal and
constitutional concepts when they deem them socially desirable. For example,
judicial activism Justice Harry Blackmun’s opinion in Roe v. Wade was based on a constitutional
The judicial philosophy right to privacy that is not found in the words of the Constitution but was,
that posits that the Court rather, based on the Court’s prior decision in Griswold v. Connecticut. Blackmun
should see beyond the and the other members of the majority in Roe argued that other constitutional
text of the Constitution provisions imply the right to privacy. In this instance of judicial activism, the
or a statute to consider Court knew the result it wanted to achieve and was not afraid to make the law
broader societal conform to the desired outcome.
implications for its It is sometimes difficult to discern a difference between restraint and dif-
decisions
ferent flavors of activism. The Court’s conservative bloc sometimes does try to
rein in the more expansive posture of previous activist majorities. In other cases,
however, it seeks to move “boldly” and “actively” in areas previously regarded as
settled. In Citizens United in 2010, for example, the Court held that corporations
and unions could not be restricted from financial participation in elections.46 It
did not reverse previous prohibitions on corporate donations directly to can-
didates, but it did allow independent expenditures—for example, advertising
during a campaign—so long as they were not coordinated with any individual
campaign. This seems to fit uncomfortably with a philosophy of restraint.
Political Ideology. The second component of judicial philosophy is politi-

cal ideology. The liberal or conservative attitudes of justices play an important
45 King v. Burwell, 576 U.S. ___ (2015).

46 Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).

role in their decisions.47 The philosophy of activism versus restraint is some-
times a smoke screen for political ideology. In the past, liberal judges have been
activists, willing to use the law to achieve social and political change, whereas
conservatives have been associated with judicial restraint. It is interesting, how-
ever, that in recent years some conservative justices have become activists in
seeking to undo part of the work of liberal jurists over the past three decades.
The Rehnquist Court, dominated by conservatives, was among the most activist
Supreme Courts in American history, striking out in new directions in areas such
as federalism and election law.
Our discussion of congressional politics in Chapter 6 described legislators
as policy oriented. In conceiving of judges as legislators in robes, we are effec-
tively claiming that judges, like other politicians, have policy preferences that
they seek to implement. The Analyzing the Evidence unit in this chapter looks
at ideology in the Court.
Other Institutions of Government
Congress. At both the national and the state level in the United States, courts
and judges are players in the policy game because of the separation of powers.
Thus, essentially, the legislative branch formulates policy (defined constitution-
ally and institutionally by a legislative process), the executive branch implements
policy (according to well-defined administrative procedures and subject to initial
approval by the president or legislative override of his veto), and the courts, when
asked, rule on the faithfulness of the legislated and executed policy, either to the
substance of the statute or to the Constitution itself. The courts may strike down
an administrative action either because it exceeds the authority granted in the rele-
vant statute (statutory rationale) or because the statute itself exceeds the authority
granted the legislature or executive by the Constitution (constitutional rationale).
If the Court declares the administrative agent’s act as outside the permis-
sible bounds, the majority opinion can declare whatever policy it wishes. If the
legislature is unhappy with this judicial action, it may either recraft the legislation
(if the rationale for striking it down was statutory)48 or initiate a constitutional
amendment that would enable the stricken policy to pass constitutional muster
(if the rationale for originally striking it down was constitutional).
In reaching their decisions, Supreme Court justices must anticipate Con-
gress’s response. As a result, judges do not always vote according to their true
preferences because doing so may provoke Congress to enact legislation that
moves the policy further from what the judges prefer. By voting for a lesser
47 C. Herman Pritchett, The Roosevelt Court: A Study in Judicial Politics and Values (New
York: Macmillan, 1948); Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and
the Attitudinal Model (New York: Cambridge University Press, 1993); Segal and Spaeth,
The Supreme Court and Attitudinal Model Revisited (New York: Cambridge University
Press, 2002).
48 William N. Eskridge, Jr., “Overriding Supreme Court Statutory Interpretation
Decisions,” Yale Law Journal 101 (1991): 331–55.
Judicial Decision Making 363

preference, the justices can get something they prefer to the status quo without
provoking congressional action to overturn their decision. In short, the interac-
tions between the Court and Congress are part of a complex strategic game.49
The President. The president’s most direct influence on the Court is the
power to nominate justices. Presidents typically nominate those who seem close
to their policy preferences and close enough to the preferences of a majority of
senators, who must confirm the nomination. In addition to ideological congru-
ence, a president attempts to affect the composition of the district and appellate
courts in other respects. As displayed in Figure 9.7, the last six presidents have
appointed a number of judges from underrepresented groups.
The president must also confront Congress in shaping the judiciary. By
using the filibuster (see Chapter 6), both parties have blocked judicial nomi-
nees: when George W. Bush was president, the Democrats repeatedly blocked
nominees, and the Republicans did so when Obama was president. Acrimony
over judicial nominees has prompted both parties to threaten changing Senate
rules to allow their preferred nominees through. In 2013, Senate Democrats
carried through with the threat, eliminating the filibuster for most presidential
nominees (although filibusters are still allowed for Supreme Court nominees).
Of course, opponents of a nomination may block it in other ways. The judiciary
committee may refuse to consider the nominee, as in the case of Judge Merrick
Garland, President Obama’s Supreme Court nominee in 2016.
The Implementation of Supreme Court Decisions
The president and the rest of the executive branch, along with Congress, the
states, the lower courts, and a variety of private organizations and individuals,
play key roles in the implementation of Supreme Court decisions. Once the
high court has made a decision, numerous other government agencies must put
it into effect. The lower courts must apply the principles asserted by the Court
to new cases. The executive branch must enforce the Court’s decision. State
legislators and governors must implement the decision in their own jurisdic-
tions. And often individuals and organizations must take action in the courts
and in the political arena to demand that the Supreme Court’s verdicts be fully
implemented. At each of these stages, opposition by relevant actors may delay
full national implementation of a decision, sometimes for years.
For example, if lower-court judges strongly disagree with a Supreme Court
decision, they may use a variety of tactics to avoid fully implementing it. They
may, for example, avoid applying the case by disposing of similar cases on
49 A full strategic analysis of the maneuvering among legislative, executive, and judicial
branches in the separation-of-powers arrangement choreographed by the U.S. Constitution
may be found in William N. Eskridge, Jr., and John A. Ferejohn, “The Article I, Section 7,
Game,” Georgetown Law Review 80 (1992): 523–65. The entire issue of this journal is
devoted to the theme of strategic behavior in American institutional politics.

Figure 9.7
DIVERSITY OF THE FEDERAL JUDICIARY
NUMBER OF JUDGES
Female
Carter 41
Reagan 30
G. H. W. Bush 36
Clinton 106
G. W. Bush 71
Obama 136
African American
Carter 37
Reagan 7
G. H. W. Bush 11
Clinton 61
G. W. Bush 24
Obama 61
Hispanic
Carter 16
Reagan 14
G. H. W. Bush 8
Clinton 23
G. W. Bush 30
Obama 36
NOTE: Carter appointed 261 federal judges; Reagan appointed 364; G. H. W. Bush appointed 188;
Clinton appointed 372; G. W. Bush appointed 321; and Obama appointed 324 (as of March 2016).
SOURCE: The Federal Judicial Center, History of the Federal Judiciary, www.fjc.gov/history/home.nsf/
page/judges_diversity.html (accessed 8/17/16).
technical or procedural grounds. Similarly, they may apply the case as narrowly
as possible or declare that some portion of the Court’s opinion was merely
“dicta”—useful as guidance but not binding.
Most Supreme Court decisions must be implemented by federal, state,
and local agencies. If these agencies are unsympathetic to a decision, they may
obstruct, delay, or even refuse to accept it. In the nineteenth century, President
Andrew Jackson famously refused to obey a Supreme Court decision, declaring,
“John Marshall has made his decision. Now let him enforce it.” In 2015 Kim
Davis, clerk of Rowan County, Kentucky, refused to issue marriage licenses to
gay and lesbian couples, despite the recent court ruling requiring her to do so in

Obergefell v. Hodges (see the Policy Principle section on p. 369). She spent five
days in jail for contempt of court before being released in exchange for agreeing
to allow her office to issue licenses (though refusing to issue them herself).
Although few officials or agencies have been so defiant, many have quietly
ignored or sought to circumvent the Court. For example, many local school
boards have searched for years for ways to circumvent the Court’s rulings
prohibiting religious observance in public schools.
Strategic Behavior in the Supreme Court
In describing the role and effect of the Supreme Court, we have occasionally
referred to the strategic opportunities the Court provides. We can divide this
strategic behavior into three stages. Stage 1 begins with a period of “normal”
politics—in (local or national) legislatures, (local or national) executive and reg-
ulatory agencies, political processes like elections, and everyday life involving
interactions among public and private entities (citizens, corporations, nonprof-
its, voluntary associations, governments). Conflict arises, and interested parties
must decide what to do: live with the results, pursue normal political channels
using legislatures and agencies to resolve the conflict, or move the conflict into
the courts. Stage 2 involves a court’s response, with judges both reacting to
demands from the outside and fashioning their own behavioral strategies within
the legal process. Stage 3 involves what happens once a court renders a decision
and how the actors in stages 1 and 2 anticipate the decision and adjust their
behavior to its expectations. Although our discussion could be developed for
all courts, we will primarily address the Supreme Court and its internal strate-
gic environment at stage 2, when it both reacts to developments that preceded
its involvement in a conflict (stage 1) and anticipates what will happen if it
responds in a particular manner (stage 3).
Stage 1. Assume that a conflict has arisen and appeals have been made
through normal channels. Administrative and regulatory agencies, for example,
often have well-defined procedures for appealing a ruling within the agency,
with the opportunity of a subsequent appeal to a court always being available.
Dissatisfied with the outcome, one of the parties moves the dispute to the
courts, and at some point in the process the option of appeal to the Supreme
Court is available. The aggrieved party has a decision to make. It is a calculated,
strategic decision in two respects.
First, an appeal will consume resources that might otherwise serve different
purposes. A prospective appellant must weigh an appeal against this “opportunity
cost.” The Sierra Club, for example, might use resources to appeal a lower-court
decision on environmental protection to the Supreme Court or, alternatively,
devote some of the same resources to lobbying Congress on other issues.
Second, all options are uncertain propositions whose resolution stretches
out over time. Regarding uncertainty, a prospective appellant must recognize
that the probability of successfully getting to the Court is slim, and even if it
obtains certiorari, it may not win on the merits of its case. Regarding the time

THE POLICY PRINCIPLE CHAPTER 09
Changing Judicial Direction: Gay Marriage
In 1970, Richard Baker and James McConnell applied

for a marriage license in Hennepin County, Minnesota.
The county clerk, Gerald Nelson, refused to give them
a license because they were both men. The couple
sued Nelson, claiming that the Minnesota statute
barring them from receiving a marriage license was
unconstitutional. They appealed the case all the way
to the Minnesota Supreme Court, which held in Baker
v. Nelson (1971) that “The institution of marriage as a
union of man and woman, uniquely involving the pro-
creation and rearing of children within a family, is as old
as the book of Genesis.” In 1972, the U.S. Supreme Gay rights advocates celebrate the Court’s 2015 decision.
Court issued a brief affirmation of the Minnesota ruling.
In the years and decades following this setback,
the gay rights movement proceeded down other liti- Justice Kennedy went on to author opinions
gation avenues, bringing a series of lawsuits aimed at on decriminalizing sodomy in Lawrence v. Texas
changing policies that discriminated against gay men (2003), declaring DOMA unconstitutional in United
and lesbians. Their collective effort to use the insti- States v. Windsor (2013), and eventually estab-
tution of the courts to change policy gradually saw lishing a right for gays to marry across the United
results. A quarter of a century after Baker v. Nelson, States in Obergefell v. Hodges (2015). Though by
the U.S. Supreme Court struck down a provision the time of Obergefell many states had already
of Colorado state law that denied gay and lesbian legalized gay marriage, the Court was consistently
residents a variety of privileges that the law labeled on the front edge of the debate in one of its most
“special rights.” Justice Anthony Kennedy, writing consistent shows of judicial activism in recent
in the 6–3 majority in Romer v. Evans (1996) revers- times. Kennedy’s Obergefell opinion was aimed at
ing this view, states “We find nothing special in the history, not merely at setting a legal precedent. It
protections [being withheld]. These protections . . . showed clearly his intention to shape a policy and
constitute ordinary civil life in a free society.” enshrine a right, rather than argue over semantics
The Romer opinion, written in the same year or precedent.
Congress passed the Defense of Marriage Act Though public opinion on same-sex marriage
(DOMA) limiting marriage to one man and one wom- has been changing rapidly in its favor, the Obergefell
an, shows how the Court can turn away from both its decision did not silence dissent. In August 2015,
own precedents and congressional policy to actively post-Obergefell, another county clerk (this time in
chart a new direction. As the policy principle sug- Kentucky) refused to issue a marriage license to a
gests, collective action directed toward the courts, gay couple. Yet, rather than affirming her action, as
combined with new political preferences in the had happened in Minnesota four decades earlier, a
courts, generated a change in policy. court held her in contempt and jailed her.
dimension, even if the appellant wins, the process may take years, making
the delayed victory bittersweet. Ultimately these strategic calculations revolve
around what an appellant can expect in pursuing an appeal—that is, what might
happen in stages 2 and 3.50
Stage 2. Thousands of cases are appealed to the Supreme Court. The nine
justices (or, more accurately, their clerks) must sort through these petitions and,
rule of four according to the rule of four, build their docket each session. The Court, in
short, has the power to create its own agenda.
The rule that certiorari
In building their docket for the current session, how do justices think about
will be granted only if
the available options? They support some cases out of a strong belief that an
four justices vote in favor
of the petition
area is ripe for constitutional clarification. They support others out of an inter-
est in the development of legal principles in a particular area—criminal rights,
privacy, First Amendment, abortion, affirmative action, federal-state relations,
and so on—or in the belief that contradictory decisions in lower courts need to
be sorted out. The justices may oppose certain appeals because they believe a
particular case will not provide a sufficiently clear-cut basis for clarifying a legal
issue. That is, even though a case might attract a justice’s interest on substantive
grounds or might be perceived by a justice as containing procedural errors that
could lead to a reversal, she might not support certiorari because of a strategic
calculation that it is not a particularly good vehicle or that a better vehicle might
come up through the appeals process in a subsequent session.51
Once a case is included on the docket and oral arguments have been deliv-
ered by the litigants’ attorneys and amicus curiae briefs filed by other interested
parties, the case becomes the subject of two decisions.52 The first takes place
after the justices discuss it in one of their regularly scheduled conferences dur-
ing the Court’s term. When discussion has concluded and all attempts at persua-
sion have ended, there is a vote on the merits—a vote in favor of the appeal
or against it. In principle, this vote affects only the parties to the case, either
affirming or reversing the lower-court decision.
The second decision has a wider bearing. Having decided one way or the
other, the justices must determine whether there is agreement on the reasons for
their decision. This is a highly strategic decision because the Court’s impact over
and above its effect on the contesting parties depends on the reasons it gives for
50 There are subtleties to the strategies of appellants. They may seek an appeal to the
Supreme Court, for example, as a bluff to induce the winner in the lower court to
accommodate in advance some of their preferences—in effect, to settle out of court.
Why might the lower-court winners be induced to accommodate the losers? There
are at least two reasons: first, to avoid the exorbitant costs of fighting an appeal to the
Supreme Court and, second, to avoid the prospect that their victory in the lower court
may be reversed.
51 An excellent discussion of this facet of Supreme Court decision making is found in
Perry, Deciding to Decide.
52 On the strategic decisions of amicus groups, see Thomas Hansford, “Information
Provision, Organizational Constraints, and the Decision to Submit an Amicus Brief in a
U.S. Supreme Court Case,” Political Research Quarterly 57 (2004): 219–30.

the decision at hand. A Court majority’s reasons set legal precedent for similar
cases in the future, thus influencing litigation in lower courts. If the majority
cannot agree on why they decided as they did, there is no binding effect on
other comparable cases. Drafting an opinion that can attract the signatures of
at least five justices is therefore of pivotal significance. A justice on the winning
side who stakes out an extreme position relative to the others is unlikely to be
able to draft such an opinion, so moderate justices usually do the heavy lifting
of opinion drafting for especially controversial cases. Of course, in some cases
a majority may agree on the merits of a case but not reach consensus on the rea-
sons. In such cases, there will be no majority opinion, though each justice is free
to write his or her own opinion (possibly cosigned by others), either supporting
or dissenting from the decision on the merits and giving specific reasons. These
opinions have no binding effect on future lower-court cases but may still serve
a strategic signaling role, conveying to the lower courts and the legal community
where a justice stands on the issues involved.53
Stage 3. The Supreme Court is the top rung of one branch in a separation-of-
powers system. Its decisions are not automatically implemented; it must depend
on executive agencies for implementation and on lower courts for enforcement
of its dicta. In fact, it ultimately depends on the willingness of others, especially
ordinary citizens, to conform to its rulings. In some instances, the Court may
worry about resistance. Throughout the 1940s and 1950s, for example, there were
concerns that issues relating to integration would meet with popular disapproval
and defiance in the South. Indeed, when writing the majority opinion in the 1954
Brown decision desegregating public schools, Chief Justice Earl Warren strategi-
cally softened some of its language in order to attract the signatures of all nine
justices. The 9–0 decision and opinion were a signal to a potentially defiant South
that the Court was united and that it would take a very long time (the time needed
to replace at least five justices) before there would be any prospect of reversal.
In addition to compliance, enforcement, and resistance, the Court consid-
ers the possibility of reversal. On a decision taken by the Court on a statutory
issue—for example, whether an existing law covers a particular situation—
majorities in both houses of Congress and the president may pass a new statute
reversing the Court’s interpretation. If, for example, the Court rules that the
Radio Act of 1927 does not cover transmissions by cellular phones and Con-
gress and the president think otherwise, then Congress may pass legislation, and
the president may sign it into law, amending the Act so that its provisions do
govern the regulation of cell phones.54 Members of the Court may have no par-
ticular stake in being reversed—that is, they may not care whether the “political”
53 For an insightful discussion of the strategic elements influencing how the senior
justice in the winning coalition assigns opinion writing, see David W. Rohde, “Policy
Goals, Strategic Choice, and Majority Opinion Assignments in the U.S. Supreme
Court,” Midwest Journal of Political Science 16 (1972): 652–82.
54 On the strategic interaction among the Court, Congress, and the president, see
Eskridge and Ferejohn, “The Article I, Section 7, Game.”

branches decide, for example, to allow for cell phones to be covered by the
Radio Act of 1927. Indeed, they may feel a certain satisfaction that the act, as
originally written, had a narrow scope that only subsequent statutory activity
could broaden. Then again, in order to have impact on politics generally, the
Court would not want their decisions questioned, reversed, or defied routinely.
For decisions taken on constitutional (as opposed to statutory) grounds, no
mere revision of existing law is sufficient to reverse the Court; a constitutional
amendment is required. President George W. Bush, for example, gave his blessing
to efforts to amend the Constitution to reverse the Roe v. Wade decision permitting
a woman to choose an abortion in the first two trimesters of her pregnancy.
In the long run, the Supreme Court is the final legal authority on whether
governmental and interpersonal practices satisfy statutory or constitutional
scrutiny. But the justices are not free agents; the other branches of government
must be taken into account as justices vote on cases and write legal opinions.
Hence strategic calculation can never be far from their thinking.
CONCLUSION: THE EXPANDING POWER

OF THE JUDICIARY
Over the past 50 years, the place of the judiciary in American politics and soci-
ety has changed dramatically. Demand for legal solutions has increased, and the
judiciary’s reach has expanded. Some now call for reining in the power of the
courts and discretion of judges in areas ranging from criminal law and sentenc-
ing to property rights to liability and torts. How our society deals with these
issues will shape the judiciary’s future independence and effectiveness. Even
the most conservative justices now seem reluctant to relinquish their newfound
power, authority that has become accepted and thus established.
Let us summarize what we have learned so far. Judges enjoy great latitude
because they are not subject to electoral pressures. Judges and justices, more
than other politicians in America, can pursue their own goals and preferences,
their own ideologies (rationality principle). They are, however, constrained by
institutional rules governing access to the courts, by other courts, by Congress
and the president, by their lack of enforcement powers, and most important, by
the past in the form of precedent and common law (institution principle). For
much of its history, the federal judiciary acted very cautiously. The Supreme
Court rarely challenged Congress or the president. The justices instead tended
to legitimate laws passed by Congress and actions of the president. The scope
of the Court’s decisions was limited only to those individuals who were granted
access to the courts.
Three judicial revolutions have expanded the power and reach of the
federal judiciary since World War II. The first revolution brought about the
liberalization of a wide range of public policies in the United States. As we
saw in Chapters 4 and 5, in certain policy areas—such as school desegregation,
legislative apportionment, criminal procedure, obscenity, abortion, and voting

rights—the Supreme Court was at the forefront of sweeping changes in the
role of the U.S. government and, ultimately, the character of American society
(policy principle). The Court put many of these issues before the public long
before Congress or the president was prepared to act.
At the same time that the courts forged these policy innovations, they were
bringing about a second, less visible revolution. During the 1960s and 1970s, the
Supreme Court and other federal courts liberalized the concept of standing to
permit almost any group seeking to challenge an administrative agency’s actions
to bring its case before the federal bench. It thus encouraged groups to come to
the judiciary to resolve disputes, rather than to Congress or the executive branch.
Complementing this, the federal courts also broadened the scope of relief to per-
mit themselves to act on behalf of broad categories of persons in class-action
cases, rather than just on behalf of individuals.55 The possibility of class-action
cases facilitated collective action by allowing legal entrepreneurs to organize an
entire group of petitioners who would otherwise face potentially insurmountable
coordination and free-rider obstacles (collective action principle).
In a third revolution the federal courts began to employ so-called structural
remedies, in effect retaining jurisdiction of cases until a court’s mandate had
been implemented to its satisfaction.56
Through these three judicial mechanisms, the federal courts paved the way
for an unprecedented expansion of national judicial power. In essence, liberal-
ization of the rules of standing and expansion of the scope of judicial relief
drew the federal courts to link with important social interests and classes. The
introduction of structural remedies enhanced the courts’ ability to serve these
constituencies. Thus during the 1960s and 1970s the power of the federal courts
expanded through links with constituencies—such as groups advocating civil
rights, consumers’ rights, gay rights, women’s rights, and environmental issues—
that staunchly defended the Supreme Court in its battles with Congress, the
executive, or other interest groups.
During the 1980s and 1990s, the Reagan and Bush administrations sought to
end the relationship between the Court and liberal political forces. Conservative
judges appointed by these Republican presidents modified the Court’s position
in areas such as abortion, affirmative action, and judicial procedure, though not
so completely as some conservative writers and politicians had hoped. Within
one week in 2003, for example, the Supreme Court affirmed the validity of affir-
mative action, reaffirmed abortion rights, strengthened gay rights, offered new
protection to individuals facing the death penalty, and issued a ruling in favor
of a congressional apportionment plan that dispersed minority voters across
several districts—a practice that appeared to favor the Democrats.57 The Court
55 See “Developments in the Law—Class Actions,” Harvard Law Review 89 (1976): 1318.
56 See Donald L. Horowitz, The Courts and Social Policy (Washington, DC: Brookings
Institution, 1977).
57 David Van Drehle, “Court That Liberals Savage Proves to Be Less of a Target,”
Washington Post, June 29, 2003, p. A18.
Conclusion: The Expanding Power of the Judiciary 373

had made these decisions based on the justices’ interpretations of precedent and
law, not simply personal belief.
Despite its increasingly conservative composition, the current Court has
not been conservative in another sense. It has not been eager to surrender the
expanded powers carved out by earlier Courts, especially in areas that assert
the power of the national government over the states. Indeed, the opponents
to the U.S. Constitution (the Antifederalists in Chapter 2) feared the assertion
of the national interest over the states through the independent judiciary. Over
two centuries of U.S. history, the reach and authority of the federal judiciary
has expanded greatly, and the judiciary has emerged as a powerful arm of our
national politics (history principle). Whatever their policy beliefs or partisan
orientations, judges and justices understand the newfound importance of the
courts among the three branches of American government and act not just to
interpret and apply the law but also to maintain the power of the courts.
For Further Reading
Abraham, Henry J. The Judicial Process: An Introductory Analysis of the Courts of the
United States, England, and France. 7th ed. New York: Oxford University Press, 1998.
Baum, Lawrence. The Puzzle of Judicial Behavior. Ann Arbor: University of

Michigan Press, 1997.
Bickel, Alexander M. The Least Dangerous Branch: The Supreme Court at the Bar of
Politics. Indianapolis, IN: Bobbs-Merrill, 1962.
Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington, DC: CQ
Press, 1998.
Kahn, Ronald. The Supreme Court and Constitutional Theory, 1953–1993. Lawrence:
University Press of Kansas, 1994.
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 1803.
O’Brien, David M. Storm Center: The Supreme Court in American Politics. 10th ed.
New York: Norton, 2014.
Perry, H. W., Jr. Deciding to Decide: Agenda Setting in the United States Supreme Court.
Cambridge: Harvard University Press, 1991.
Rosenberg, Gerald. The Hollow Hope: Can Courts Bring About Social Change?
Chicago: University of Chicago Press, 2008.
Segal, Jeffrey A., and Harold J. Spaeth. The Supreme Court and the Attitudinal Model
Revisited. New York: Cambridge University Press, 2002.

Silverstein, Mark. Judicious Choices: The New Politics of Supreme Court Confirmations.
New York: Norton, 1994.
Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. New York:
Knopf, 2008.
Whittington, Keith. Political Foundations of Judicial Supremacy: The President, the

Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton
University Press, 2008.
For Further Reading 375

Lowi 2017 CH 9

Uploaded by

Document Informationclick to expand document information

Copyright:

Available Formats

Lowi 2017 CH 9

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Lowi 2017 CH 9

Uploaded by

Copyright:

Available Formats

9 INSTITUTIONS

The Federal Courts

Courts serve an essential function. When disputes arise, an impartial arbiter is

1 However, judges in many state and local courts are elected.

328 Chapter 9: The Federal Courts

CORE OF THE ANALYSIS

 ust like presidents and legislators, judges have preferences about

Judicial decisions are highly constrained by the past, in the form of

The courts maintain their independence from the legislature and

Courts can block or overturn political decisions of the legislature or

However, the courts are also constrained by the checks and

The Federal Courts 329

330 Chapter 9: The Federal Courts

THE JUDICIAL PROCESS

The Judicial Process 331

TYPE OF LAW TYPE OF CASE OR DISPUTE FORM OF CITATION

332 Chapter 9: The Federal Courts

The Organization of the Court System 333

Supreme Court of the United States

Requests for reviews

State supreme court

U.S. Court of Appeals State appellate courts

U.S. District Courts State trial courts

FEDERAL SYSTEM STATE SYSTEM

334 Chapter 9: The Federal Courts

involving a state or an ambassador (original jurisdiction). Article III assigns orig-

The Organization of the Court System 335

336 Chapter 9: The Federal Courts

Federal Trial Courts

Federal Appellate Courts

3 www.uscourts.gov/statistics/table/1/judicial-business/2015/09/30 (accessed 8/17/16).

The Organization of the Court System 337

338 Chapter 9: The Federal Courts

The Supreme Court

The Organization of the Court System 339

How Judges Are Appointed

The president appoints federal judges. Nominees are typically prominent or

The practice whereby the

340 Chapter 9: The Federal Courts

Trends in Presidential Appointments. Presidents nominate individuals

The Organization of the Court System 341

THE POWER OF JUDICIAL REVIEW

6 United States v. Booker, 543 U.S. 220 (2005).

The Power of Judicial Review 345

346 Chapter 9: The Federal Courts

SOURCE: U.S. Government Printing Office, www.congress.gov/constitution-annotated

Judicial Review of State Actions

The Power of Judicial Review 347

Judicial Review of Federal Agency Actions

348 Chapter 9: The Federal Courts

Judicial Review and Presidential Power

16 United States v. Nixon, 418 U.S. 683 (1974).

The Power of Judicial Review 349

Judicial Review and Lawmaking

20 United States v. Texas, No. 15-674.

350 Chapter 9: The Federal Courts

THE SUPREME COURT IN ACTION

23 Escobedo v. Illinois, 378 U.S. 478 (1964).

ust like presidents and legislators, judges have preferences about