The courts are deeply involved in deciding political questions in American politics. The courts have played key roles in eliminating racial segregation, ensuring separation of church and state, defining free. Thus, the courts are a political institution.

The Constitution grants judicial power to the Supreme Court and the federal level courts that are created by Congress. Federal judges are appointed (not elected) for life terms. Article III of the Constitution establishes the Supreme Court as the highest court of the land. Article VI makes federal law the supreme law of the land and obliges states to defer to it. John Marshall, the first Chief Justice, confirmed its right to judicial review of the constitutionality of laws and executive actions in Marbury v. Madison (1803). Judicial review is the most powerful authority of the Supreme Court and allows it to assert itself over the elected branches of government. The Court has used this power judiciously over time, however, and since the Civil War has mostly used its power to strike down state laws. In the two centuries since the Marbury decision, the Supreme Court has struck down only about 150 of the 60,000 or so laws Congress has passed, but some of these decisions have been extraordinarily important. Rarely, has the Court challenged presidential power and usually only when presidential policies conflicted with the laws of Congress or the Constitution. For example, the court declared President Truman's seizure of the nation's steel mills during the Korean War to be illegal, and it held that Clinton had to respond to a civil suit brought against him by Paula Corbin Jones.

The Supreme Court has mainly used its power of judicial review to invalidate state laws. For example, Brown v. Board of Education of Topeka that struck down segregation of the races also invalidated similar laws in twenty-one other states. In 2003 the Court struck down laws against homosexuality in forty states.

Not all decisions of the Supreme Court deal with constitutional issues. Many of its decisions involve interpretation of statutory law. Sometimes, though, it will refrain from making a decision at all because it deems a case to belong in the political arena of Congress. In such areas as civil rights, rights of criminals, freedom of religion, and rights of women, in contrast, the policy-making role of the Supreme Court eclipses that of Congress.

Activism Versus Self-Restraint

The philosophy of judicial self-restraint holds that justices should seek only to interpret the laws, making new policy as little as possible since that is the function of elected officials. In this view what matters is if a law is constitutional, not if it is just or wise. Judicial self-restraint may be tied to interpretation in terms of original intent of the framers of the Constitution. The philosophy of judicial activism general rejects original intent, insisting that the Constitution is a living document which must be adapted in each generation to changing times.

Even judicial activists often defer to the principle of stare decisis, which means allowing precedents to stand. Other principles, generally favoring restraint, are that the Supreme Court will only consider actual cases, not hypothetical issues, and only cases where the complainants can show actual injury. Moreover, the Court does not base its decisions on constitutional principles when it can decide a case on a narrower technical basis. When a law is held unconstitutional, the Court usually restricts itself to overruling only the specific section of the law that is offensive.

Structure and Jurisdiction of Federal Courts

The federal court system has 3 levels of courts: the Supreme Court, the Courts of Appeals, and the district courts. Only the Supreme Court is specifically mentioned in the Constitution; the rest of the courts, their jurisdictions and makeup is left to Congress to determine.

Congress has created 94 district courts, twelve regional circuit courts of appeal, and a federal circuit court of appeals. Jurisdiction is also divided between original, in which cases are heard and decisions are initially made, and appellate in which cases that have already been heard are decided on appeal. The Supreme Court is a court of last resort that hears only a small number of cases. The Court does have some original jurisdiction in a limited number of cases: where there are disputes between states, disputes between the state and federal government, those involving foreign dignitaries.

The basic trial courts with original jurisdiction are the district courts, and there is at least one in each of the fifty states. The president with approval of the Senate appoints the more than 800 federal district court judges, plus a federal marshal for each court. The district courts use grand juries, which are called to hear evidence and if needed to indict in order to bring a defendant up on chares, and petit juries which determine guilt or innocence.

Federal circuit courts are appellate courts that do not hold trials or accept new evidence. These courts review the records of the trial courts and oral or written briefs filed by attorneys. Under federal law, all defendants have the right to appeal. The judges in circuit courts sit in panels to decide appeals. The federal circuit courts are the end of the line for 90 percent of all federal cases; only a few cases will go on to the Supreme Court.

The Supreme Court has the final say in all matters involving the Constitution, federal laws, and treaties. Appeals may come from lower federal courts or a state's court of last resort. The Court controls which cases it will hear -- appeals are not automatic to the Supreme Court. Since 1869 the highest court has had nine justices -- a chief justice and eight associates. Each of the fifty states maintains its own court systems separate from the federal system. Most cases begin and end in the state court systems. Appeals from state courts go directly to the Supreme Court but only after they have exhausted all remedies at the state level. The federal caseload has risen in recent years as the Justice Department prosecutes more cases under federal law, especially those dealing with drugs.

The Special Rules of Judicial Decision Making

Courts must wait until cases or controversies are brought before them for resolution. The adversarial system of American courts allow a jury or a judge to make decisions after hearing arguments and evidence presented by opposite sides. The party filing a lawsuit must have a legal stake, or standing, in the outcome. The plaintiffs are the parties initiating suits and claiming damages. In criminal cases, the state acts as plaintiff on behalf of the victim. Defendants are the parties against whom a criminal or civil suit is brought. Class action lawsuits are means by which injured individuals may act in court on behalf of all others similarly situated. Sovereign immunity is the doctrine that individuals can sue the government only with the government's consent, but by law the U.S. government allows itself to be sued in a wide variety of contract and negligence cases. Remedies and relief are court orders which correct wrongs, including violations of the Constitution. In 1978 Congress passed the Ethics in Government Act which granted the federal courts the power to appoint an independent counsel or special prosecutor upon request of the attorney general. However, these counsels became a political nightmare and after Kenneth Starr's pursuit of President Clinton, Congress allowed the law to lapse in 1999.

The Politics of Selecting Judges

Presidential selection of Supreme Court justices has become increasingly politicized in the last twenty-five years. This can backfire since justices can and do deviate from the political expectations of the presidents who appointed them. It has now become common to apply a political litmus test, as President Clinton has in appointing only those who support abortion rights. Traditionally, appointment of federal judges has been based on the custom of senatorial courtesy, which has meant that the Senate in confirming presidential appointments has deferred to the wishes of the senators from the president's party in the same state as the nominee. In terms of Supreme Court nominations, a new level of politicization was introduced by the 1987 fight over Reagan's appointment of conservative judge Robert Bork, an pro-life nominee who was not confirmed by a Democratic Senate. This was followed in 1991 by a fight over Bush nominee Clarence Thomas. In recent years, the minority party in the Senate has used the power of the filibuster to block votes on presidential judicial appointments.

Who is Selected?

Though not constitutionally required, all Supreme Court justices have been trained in the law, often at Harvard, Yale, or Stanford. About half have served previously as federal or state court judges. Most have been in their 50s when appointed. The first African-American Supreme Court justice was Thurgood Marshall in 1967. The first woman was Sandra Day O'Connor in 1981.

Supreme Court Decision Making

The Supreme Court sets is own agenda, hearing about 200 of 5,000 cases appealed to it annually. Another 150 or so cases are decided by summary judgment, giving a ruling without an explanatory opinion. If four justices of the nine agree ("the rule of four"), a case is granted certiori, which instructs the lower court to turn over all records of the case to the Supreme Court. This is followed by hearing arguments, which include briefs from attorneys on both sides. Interest groups may also file amicus curiae briefs in further support of one side or another. If the U.S. government is involved in the case, the government will be represented by the Solicitor General. Actual decisions are made in conference, after which a justice in the majority is selected to write an opinion. Other majority justices may write concurring opinions, while justices in the minority may write one or more dissenting opinions.

Politics and the Supreme Court

Supreme Court decisions are influence by a variety of factors including their own political views. Voting blocs develop on the court but may change depending on the case being heard. Today there are only three members of the liberal bloc: John Paul Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. There are also three in the conservative bloc: Chief Justice William Rehnquist, Antonin Scalia, and Clarence Thomas. Given the balance between the liberal and conservative blocs, key decision-making power rests today with the three moderates: Anthony Kennedy, Sandra Day O'Connor, and David Souter. Overall, the Court as a whole has moved in a conservative direction since the era of Chief Justice Earl Warren (1953-1968), with fewer pro-individual rights decisions against government in civil liberties cases, fewer pro-defendant decisions in criminal cases, fewer pro-women and pro-minorities decisions in civil rights cases, and fewer pro-federal decisions in matters of federalism.

The president may have some influence on Supreme Court decisions since the Office of Solicitor General is responsible for representing the government's views in cases in which the president has a strong interest as well as when the government is a party in the case. Interest groups play a role in Supreme Court cases as well. They sponsor cases and file amicus curiae briefs.

Bush v. Gore in the U.S. Supreme Court

The presidential election of 2000 was unique in American history because it was ultimately decided in the U.S. Supreme Court. A slim margin (5-4) determined the outcome of a race that was bitterly contested replete with mandatory recounts due to an extremely close outcome in the state of Florida. Although Al Gore clearly won the popular vote in the United States as a whole, the presidential election is decided by the Electoral College, and Florida's electoral votes would determine who would become president of the United States. The manner by which recounts would be conducted and how long counties had to conduct recounts were both at issue. Florida's Supreme Court ordered that the state's legal deadline for recounts would be set aside, that ruling was then appealed to the U.S. Supreme Court. The U.S. Supreme Court ordered the recounts to halt and sent the case back to Florida's Supreme Court for clarification - the clarification from Florida's Supreme Court was that the recounts would continue with "the intent of the voter" as the criterion for deciding how to count a ballot. More than one month after the election, the U.S. Supreme Court reversed the decision of Florida's Supreme Court, stopped recounts, and allowed that state's Secretary of State to certify that the state's electoral votes would go to George W. Bush.

Checking Court Power

The Court's authority derives from it legitimacy and not from use of force. It is the executive branch that enforces the rulings of the Court. Most Americans believe in the legitimacy of the court and will follow its rulings, even if they disagree with its decisions. the lower courts must comply with the Supreme Court's ruling and they defy those rulings at risk of having their decisions overruled. Public officials who defy Supreme Court rulings can face lawsuits and court orders that will force their compliance. Even presidents are subject to federal court orders, although early presidents attempted to defy the power of the courts. The courts have gained legitimacy over the nation's history and presidents who attempted to defy a court order would probably face impeachment. Richard Nixon lost his court fight to try and keep secret tapes he had made from being released to Congress. Congress has the constitutional power to limit the jurisdiction of federal courts, but has never done so. Constitutional amendments are occasionally proposed to reverse court decisions, but the amendment process is difficult and few are ever ratified. There are some limits, however. Courts must rely on the executive branch to implement their decisions, and on Congress to fund implementation. Congress can also impeach federal court judges but only for "cause", which means they have committed a crime. Only five federal judges have been removed from office through impeachment and Senate trial. The Supreme Court also values public opinion, like other branches of government.

Chapter Objectives

After mastering the concepts in this chapter, you will be able to:

• Cite several ways in which the Supreme Court has had a major policy impact.
• Explain the importance of Article III and Article VI of the Constitution for the judiciary.
• Define judicial review and relate it to the case of Marbury v. Madison.
• Differentiate statutory law from constitutional law.
• Articulate the judicial philosophy of self-restraint and the related concept of original intent.
• Give the rationale for the philosophy of judicial activism.
• Explain original and appellate jurisdiction with respect to the Supreme Court and to federal district courts.
• Define these terms related to lawsuits: plaintiffs, defendants, class action, standing.
• Give a brief history of the politicization of the process of appointment of Supreme Court justices in the 1980s and 1990s.
• Describe the demographics of Supreme Court justices.
• Explain rules which guide the Supreme Court in selecting cases for consideration.
• Outline the stages by which a case makes its way through the Supreme Court.
• Discuss the issues that were raised in the Bush v. Gore Supreme Court case.
• Discuss the extent to which checks do or do not exist on the power of the Supreme Court.