How is the U.S. judicial system organized to ensure justice?
The Supreme Court is the court of last resort in the federal judicial system. William Rehnquist, who served as chief justice of that court, attended his first session in 1952 while working as an assistant to Justice Robert Jackson. Rehnquist later recalled,
As of 2012, 108 male and four female Supreme Court justices have heard those opening words and proceeded to decide some of the nation’s most contentious legal issues.
Supreme Court justices are selected through the same process used for all federal judges. However, their appointments generally attract a great deal more attention.
When a vacancy occurs on the Court, the president pulls together a list of possible candidates to consider. The Department of Justice conducts background checks on the candidates to verify that their character, experience, and judicial philosophy meet the general criteria set by the president. This process of ten involves lengthy interviews with the candidates.
In the past, the American Bar Association, a voluntary association of lawyers, prescreened judicial appointments based on a candidate’s experience, professional competence, integrity, and judicial temperament. The ABA’s role in the selection process was controversial. Some critics argued that a nongovernmental organization should not have so much power in judicial appointments. Others raised concerns about political bias on the part of ABA committee members. The ABA’s formal involvement in the selection process ended in 2001.
Once a candidate has been selected, the nomination goes to the Senate Judiciary Committee for review. The committee holds public hearings, during which it takes testimony from the nominee and from witnesses who support or oppose the appointment. The Judiciary Committee then recommends, by majority vote, whether the full Senate should confirm or reject the nomination.
Finally, the full Senate votes on the nomination. In the case of district and appellate court appointments, the Senate usually confirms the president’s nominee. When the nomination is for a Supreme Court justice, however, the stakes are higher and confirmation is less sure. In the past, the Senate has rejected around one in five nominations to the Court.
The Judiciary Committee’s recommendation to confirm or reject a nomination is often affected by partisanship and the opinions of interest groups. In 1987, for example, President Reagan nominated Robert Bork for the Supreme Court. However, outcry from Democrats and interest groups, such as the ACLU, over Bork’s conservative views led the committee, and ultimately the full Senate, to reject the nomination. In order to avoid this fate, presidents are careful to select candidates whose views fit theirs but are not so extreme that the Senate rejects them.
More than one attorney, dismayed by a jury’s verdict, has vowed, “We’ll appeal this case all the way to the Supreme Court!” However, given the fact that the Court is asked to review several thousand cases each year but will only hear between 100 and 150, this is not a realistic promise.
The Supreme Court has both original and appellate jurisdiction. However, only a handful of original jurisdiction cases are filed each term. Overwhelmingly, the cases reaching the Supreme Court are appeals from cases that began in lower courts.
The most common way that a case comes to the Supreme Court is through a petition for a writ of certiorari. A writ is a legal document. A writ of certiorari is a document issued by the Supreme Court ordering that a case from a lower court be brought before it. When petitioning for a writ of certiorari, the party that lost an appeal in lower court explains why the Supreme Court should review the case.
For a writ of certiorari to be granted, four of the nine Supreme Court justices must agree to hear the case. If a writ is granted, the case is added to the Court’s docket. If a petition is denied, the decision of the lower court stands.
Once the Court decides to hear a case, the attorneys for both sides prepare legal briefs. These are written documents, sometimes hundreds of pages long, that present the legal arguments for each side in the case.
Sympathetic interest groups may also choose to file an amicus curiae brief. Amicus curiae is a Latin term meaning “friend of the court.” Interest groups use amicus briefs to let the Court know that the issue at hand is important to far more people than just the plaintiffs and defendants in the case.
Eventually, attorneys from both sides appear before the Court to present their case. This phase is known as oral argument. In general, attorneys are allotted only 30 minutes to explain why the Court should decide in favor of their client. The Court encourages attorneys to use this time to discuss the case, not deliver a formal lecture. During oral argument, the justices of ten interrupt to ask questions of the attorneys. The justices may even use their questions as a way of debating one another.
As interesting as oral arguments are to the public, the real work of the Court is done in conference. When the Court is in session, the justices meet twice a week in conference to discuss cases. No one other than the nine justices may attend. The chief justice presides and is the first to offer an opinion regarding a case. The other justices follow in order of seniority. Cases are decided by majority vote. But votes in conference are not final. As Justice John Harlan observed, “The books on voting are never closed until the decision actually comes down."
Most Supreme Court decisions either uphold or overturn a decision made by a lower court. If the lower court’s decision is upheld, the case ends at this point. There is no further appeal for the losing party to pursue.
If the Supreme Court overturns a lower court’s decision, it may send the case back to the lower court for further action. For example, should the Court decide that a criminal defendant was denied a fair trial, the case will be sent back to a lower court to be either dismissed or tried again.
Every decision serves as a precedent for future cases with similar circumstances. Under the doctrine known as stare decisis lower courts must honor decisions made by higher courts. The term stare decisis is Latin for “to stand by things decided.” This practice brings consistency to legal decisions from court to court.
Occasionally, the Court reverses a previous decision, thereby setting a new precedent. But this is not done lightly. “I do think that it is a jolt to the legal system when you overrule a precedent,” said Supreme Court nominee and future chief justice John Roberts during his confirmation hearings in 2005. A reversal may happen when the views of society have changed and when the Supreme Court reflects those changes. It may also occur when justices who voted one way leave the Court and new ones with different views take their place.
Once the Court as a whole decides a case, one justice will be assigned to write the majority opinion. An opinion is a legal document stating the reasons for a judicial decision. It often begins by laying out the facts of the case. Then it explains the legal issues involved, including past precedents, and the reasoning behind the Court’s decision. The chief justice writes this opinion if he or she sided with the majority. If not, the most senior justice in the majority camp writes the opinion.
Justices who disagree with the majority opinion may choose to write a dissenting opinion. In it, they layout their reasons for disagreeing with the majority. Some justices who sided with the majority, but for different reasons than stated in the majority opinion, may write a concurring opinion. In it, they explain how their reasoning differs from the majority’s. Because few decisions are unanimous, these additional opinions of ten accompany a majority opinion.
The most controversial cases decided by the Supreme Court are often those that involve judicial review. More than two centuries after the Court assumed this power, Americans are still divided about its proper use. On one side are supporters of judicial activism, and on the other are advocates of judicial restraint.
Judicial activism is based on the belief that the Court has both the right and the obligation to use its power of judicial review to overturn bad precedents and promote socially desirable goals. Liberals tend to be more supportive of judicial activism than are conservatives. They look to the Court to defend the rights of women and minorities, for example, when legislatures fail to act.
Advocates of judicial restraint hold that judicial review should be used sparingly, especially in dealing with controversial issues. Conservatives tend to be more supportive of judicial restraint than are liberals. In their view, elected representatives, not un elected judges, should make policy decisions on such issues as abortion rights and gay marriage.
Recent appointments to the Supreme Court have been more inclined toward judicial restraint than to activism. During Senate Judiciary Committee hearings on his nomination to the Supreme Court, John Roberts described his view of a judge’s role:
The U.S. judicial system has evolved over more than two centuries to meet the needs of a changing society. Today’s federal and state courts not only resolve conflicts, but also shape public policy through the judicial review process.
Dual court system The United States has two separate but related court systems: one federal and one state. The two systems maintain exclusive jurisdiction in some areas but overlap when cases involve both state and federal laws.
State judicial systems Each state has its own hierarchy of courts. Trial courts of limited and general jurisdiction handle most cases. Intermediate appeals courts and state courts of last resort review cases appealed from the lower courts.
Federal judicial system Most cases involving federal law and the Constitution are tried in U.S. district courts. Decisions made there can be appealed to higher courts, including the Supreme Court. The federal judicial system also includes special courts with very specific jurisdictions.
State and federal judges Many state judges are elected or appointed by the governor or legislature. In states using merit selection, judges are appointed and then confirmed by voters in a retention election. Federal judges are appointed by the president and confirmed by the Senate.