The Structural Context of Court Behavior
Constitutional Powers
The Constitution speaks only briefly about the judicial branch and doesn't provide much
guidance about what it is supposed to do or how it is supposed to go about its job.
The Constitution says little about the powers of the judicial branch in relation to the other two federal
branches or about its responsibilities in the area of constitutional interpretation.
The most interesting silence in the Constitution is the omission of any explicit mention of judicial
review, which is the power of the Court to declare state and federal laws null and void when they
conflict with the Constitution. Debate has raged for years over the question of whether the framers
intended for the Court to have this power. Although the authors of the Constitution apparently
believed that the Constitution ought to prevail when other laws were in conflict with it, it is not
clear that the framers expected the Court to have the power of judicial review.
Chief Justice John Marshall boldly claimed the power of judicial review for the Supreme Court in
the case of Marbury v. Madison, decided in 1803. On the surface, the decision was an act of great
modesty. It suggested that the Court could not force the action of an executive branch official,
in this case the action of the Secretary of State to deliver a commission to William
Marbury. The Court ruled that Congress had erred in the Judiciary Act of 1789 by giving the
Supreme Court too much power. Beneath the surface, however, was a less modest act: the claim that judicial review
was the province of the judicial branch alone.
Judicial review raises questions about democracy because it involves the right of a body shielded from direct accountability to the people to set aside the actions of government bodies whose members are directly elected. Some observers believe that judicial review is the only way to protect the rights of minorities and preserve the rules of the democratic process. In contrast, other observers believe that judicial review has no place in a democratic society.
Structural Change and Constitutional Interpretation
Scholars generally identify three periods in the history of constitutional law in the United States.
The first period extended from Chief Justice Marshall to the Civil War. A number of decisions of
the Marshall Court in particular enhanced national power over the states.
Gibbons v. Ogden (1824) helped create the foundation for a national economy in which commerce
could flow freely between the states. According to the Court, power over interstate
commerce was entirely in the hands of the national government, and no state could interfere with it by imposing
taxes or tariffs.
In Dartmouth College v. Woodward (1819), the Court ruled that a corporation was considered a
person under the law and as with any other citizen, the terms of its contract could not
be impaired or changed by the state. This decision reassured business leaders that corporations would be
largely free from state regulation.
In the Dred Scott case, the Court declared the Missouri Compromise unconstitutional and defined
slaves as property without rights as individuals. In general, the Court during this period
interpreted the Constitution to maximize the protection of property rights and promote
nationalism.
During the second period, which lasted from the late nineteenth to the early twentieth century, the
Supreme Court focused on the role of government in a burgeoning economy dominated by
business corporations. Initially, the Court took the position that the Fourteenth Amendment
protected corporations against regulation by state and federal governments.
The Supreme Court became the principle ally of business, overturning efforts by state and federal
governments to provide welfare for the poor; regulate manufacturing monopolies; adopt an
income tax; regulate interstate railroad rates; provide scholarships to students; regulate wages,
hours, and working conditions; and protect consumers against unsafe or unhealthy products.
The business-Supreme Court alliance lasted until the Great Depression. The New Deal reflected a
new national consensus about the need for a greatly expanded federal government with
a new set of responsibilities: to manage the economy; to provide a safety net for the poor, the unemployed,
and the elderly; to support collective bargaining arrangements between labor and management;
and to regulate business in the
public interest. Although the Supreme Court initially opposed these programs, it reversed itself in 1937.
When the third period of constitutional law began at the end of World War II, three fundamental
issues of American constitutional law were essentially settled: the relationship
of the states to the nation, the nature of private property, and the relationship between government and the national
economy.
After World War II, the Court turned its attention to the relationship between the individual and
the government. The Court, especially during the tenure of Chief Justice Earl Warren, rendered a
series of decisions that expanded protection for free expression and association, religious
expression, fair trials, and civil rights for minorities. In the process, the Court ruled that most of
the provisions of the Bill of Rights applied to the states.
The Federal Court System
Organization and Jurisdiction
The United States has a federal court system, with one court system for the national government and one in each of the states. Each state has its own system of courts adjudicating cases on the basis of its own constitution, statutes, and administrative rules. Most court cases in the U.S. (roughly 99 percent) are handled by state courts. The national court system is headed by the U.S. Supreme Court, which is the only court mentioned in the Constitution. The framers left the task of establishing inferior federal courts to Congress.
Federal District Courts
Most cases in the federal court system are first heard in one of the 94 district courts. District courts are courts of original jurisdiction, that is, they do not hear appeals from other courts. Most of the business of the federal courts takes place at this level.
U.S. Courts of Appeal
The United States is divided into twelve geographical jurisdictions called circuits. A U.S. court of appeals presides in each circuit, hearing appeals from the district courts. There is also a thirteenth circuit court, called the U.S. Court of Appeals for the Federal Circuit, located in Washington, DC, which hears cases on patents and government contracts. Cases cannot originate in these courts but must come form other courts to them. Because they exist only to hear appeals, we refer to them as appellate courts.
Once appellate decisions are published, they stand as precedents that guide the decision of other judges. Although judges do not slavishly follow precedent, they move away from precedent only when necessary and only in very small steps. This doctrine of closely following precedent as the basis for legal reasoning is known as stare decisis.
The Supreme Court
The Supreme Court is both a court of original jurisdiction and an appellate court. Disputes
involving ambassadors and other diplomatic personnel, two or more states, the federal
government and a state, or a state and a citizen from another state start in the Supreme Court
rather than in some other court.
The Supreme Court serves as an appellate court for the federal appeals courts and for the highest
courts of each of the states. Certain disputes must be accepted on appeal by the Supreme Court
for consideration. These disputes include those in which a state or a federal law has been declared
unconstitutional, or disputes in which the highest state court has denied a claim that a state law
violates federal law or the Constitution. As the highest appellate court in the federal court system,
the decisions and opinions of the Supreme Court become the main precedents on federal and
constitutional questions for courts at all other levels of jurisdiction.
Appointment to the Federal Bench
Who Are They?
Although appointees to the federal bench are lawyers by custom, they need not have judicial
experience. Almost half of all Supreme Court justices during this century had no
prior experience as judges. Because federal judges are lawyers, they tend to come from backgrounds that are more
privileged than the American norm. For the most part, they are white, male, Protestants from
upper-income or upper- middle-class families, who attended the most selective and
expensive undergraduate and graduate institutions.
The representativeness of judicial appointments at the circuit and district court levels is better,
but still a long way from reflecting the composition of the legal profession, much less the
American people as a whole. To those who believe that judges bring their personal outlooks to
bear when they are deciding cases, the significantly unrepresentative composition of the federal
judiciary may be cause for concern.
The Appointment Process
Federal judges assume office after they have been nominated by the president and approved by
the Senate. In some respects, all presidents approach the appointment process in
the same way. The president delegates the task of identifying judicial candidates to one or more senior White
House staff members and the attorney general. The FBI conducts background checks of the
leading candidates, and the American Bar Association is asked to evaluate their qualifications.
In making judicial appointments, presidents take many things into consideration besides merit.
No president wants a nomination rejected by the Senate, so he and his advisors consult with key
senators, especially those on the Judiciary Committee, before nominations are forwarded.
Nominations for district court judgeships are subject to what is called senatorial courtesy, that is,
the right of the senior senator from the president's party in the state where the district court is
located to approve the nominee.
Though presidents must be concerned about the merit of their candidates and their acceptability
in the Senate, they also try by their appointments to make their mark on the future.
For example, many presidents have been most interested in
nominating judges who shared their ideological and programmatic commitments.
Franklin Roosevelt tried to fill the courts with judges who favored the New Deal. Ronald Reagan
favored conservatives who were committed to rolling back affirmative action, abortion rights,
protection for criminal defendants, and broad claims of standing in environmental cases.
The Supreme Court in Action
Norms of Operation
The Supreme Court is a tradition-bound institution defined by long-standing rituals and norms. One norm is secrecy, which keeps conflict between justices out of the public eye and elevates the stature of the Court. While meeting in conference to argue and decide cases, the justices are alone, without secretaries or clerks.
Courtesy is another norm. Though justices may sometimes express their displeasure and distaste
for each other in private, in public they treat each other with great formality and
respect.
Seniority is another important norm. Seniority determines the assignment of office space, seating
arrangements in open court, order of speaking in conference, and order of voting.
Finally, the justices are expected to stick closely to precedent when reaching a decision. When the
Court departs from precedent, it is essentially overruling its own past actions, exercising judicial
review of itself. In most cases, departure from precedent comes in small steps taken
over many years.
Controlling the Agenda
The Court has a number of screening mechanisms to control its agenda and focus its attention on
cases that involve important federal or constitutional questions. Several technical rules help keep
the work load manageable.
Cases must be real and adverse, meaning that they must involve a real dispute between two
parties. Parties in a case must have standing, meaning that they must have a real and direct
interest in the issues that are raised.
Cases must also be ripe, meaning that all other avenues of appeal have been exhausted and that
injury has already taken place. Appeals must also be filed within a specific time
limit, paperwork must be proper and complete, and a filing fee of $200 must also be paid. The fee can be waived if
a petitioner is indigent and files an affidavit in form a pauperis (in the manner of a pauper).
The most powerful tool that the Court has for controlling its own agenda is the power to grant or
not to grant a writ of certiorari. A grant of cert is a decision of the Court that
an appellate case raises an important federal or constitutional issue that it is prepared to consider.
Under the rule of four, petitions are granted cert if at least four justices vote in favor. There are
several reasons why a petition may not command four votes, even if the case involves important
constitutional issues: it may involve a particularly controversial issue that the Court would like
to avoid, or the Court may not yet have developed a solid majority and wishes to avoid a split decision.
Deciding Cases
In about 25 percent of the cases heard by the Supreme Court, the issues are clear-cut and the
justices are so united that they render a decision without hearing oral arguments. They
schedule the remaining 150 or so cases for oral argument. The Court alerts the lawyers on each side as to
the key issues that the justices wish to consider, and invites new briefs. Other parties interested in
the case may submit briefs as well (known as friend of the court or amicus curiae
briefs). Each case is argued for about an hour, with one- half hour given to each side in the dispute.
After hearing oral arguments and reading the briefs in the case, the justices meet in conference to
reach a decision. The custom in conference is for each justice to state his or her position on the
case, starting with the chief justice and moving through the ranks in order of seniority. Political
scientists have tried to determine what factors are most important in predicting how justices will
vote. About all that one can say, however, is that the justices form relatively stable voting blocks
that make Court decisions on a wide range of issues relatively predictable.
The vote in conference is not final. The justices have an opportunity to change their vote in
response to the opinion supporting the majority decision. The opinion is a statement
of the legal reasoning that supports the decision of the Court. There are three kinds of opinions. The opinion
of the Court is the opinion of the majority. A concurring opinion is the opinion of a justice or
justices who support the majority decision but have different legal reasons for doing so. A
dissenting opinion presents the reasoning of the minority.
The chief justice assigns the majority opinion if he votes with the majority in conference. He can
write it himself or assign it to any justice in the majority. If the chief justice votes with the
minority, the most senior member
voting with the majority makes the assignment. Most opinions
go through numerous revisions, during which time a considerable amount of bargaining goes on.
In this process, the members of the Court function like nine independent law firms, drafting
opinions and negotiating compromises. The justices don't take a final vote until the
opinion is complete.
Key Personnel
The formal powers of the office of chief justice are not impressive. Whatever power a chief justice
has is based on a mix of leadership abilities, the prestige of the office derived from the actions of
past chief justices, and a set of norms that make the chief first among equals. The chief
justice also has certain administrative responsibilities. He is in charge of the management of the Supreme
Court building, chair of the U.S. Judicial Conference, and is chair of the Federal Judicial Center.
The solicitor general is appointed by the president to represent the U.S. government before the
Supreme Court. He and his staff decide which cases to appeal from lower courts and which cases
between private parties or the states to join on an amicus curiae basis. Political scientists believe
that the Court pays close attention to the position of the solicitor general when deciding whether
to grant certiorari because, being the representative of the president, he signals what the
administration considers to be most important.
Supreme Court clerks are a select group of young lawyers recruited from among recent graduates
of the best law schools in the United States. Their main role is to assist the justices in the
preparation of cases. Clerks prepare memoranda on cases being considered for certiorari, screen
petitions for in forma pauperis filings, do legal research, and write initial drafts of opinions.
Because the work load of the Court has increased, clerks have assumed more and more
responsibility for drafting and revising opinions. Nonetheless, each justice has the final word.
The Supreme Court as a National Policymaker
People often say that the Court should not make policy but should only settle disputes. But, because the disputes it settles involve contentious public issues and fundamental questions about the meaning of our constitutional rules, the Court can't help but make public policy. The fact that decisions are not simply handed down but come with an opinion attached for the purpose of guiding the actions of other courts, litigants, and public officials is another demonstration that the Court has a policymaking role.
The Debate over Judicial Activism
Many people think that the Supreme Court is too vigorous in its policymaking role. The Court is indeed more active now than in the past. Whether this is inappropriate depends on one's view of the role of the judiciary in a democracy.
The Supreme Court is changing in important ways. During the twentieth century, the Court has
been more willing to find the actions of the states and the other branches of the
federal government unconstitutional. Although adherence to precedent is one of the traditional norms
that guides judicial decision making, the Court is not as reluctant to overturn previous Court
decisions as in the past.
Critics claim that the Court increasingly is taking on matters that are political and that are best left
to the other branches of government. In response, defenders of the Court argue that when such
basic constitutional rights as equality of citizenship are at peril, the Court is
obligated to protect those rights, no matter what other government bodies may chose to do.
The activity which has generated the most criticism in recent years derives from the Court's
increased tendency to impose broad remedies. A remedy is what a court determines must be
done to rectify a wrong. Some of the most controversial of these remedies include court orders
requiring states to build more prison space and mandating that school districts bus
students to achieve racial balance.
Much of the debate about the role of the Court centers on the issue of original intention.
Advocates of original intention and strict construction believe that the Court must be guided
by the original intent of the framers and the words found in the Constitution. In contrast, proponents
of loose construction believe that the intentions of the Founders are impossible to determine and
unduly constricting. In their view, jurists must try to reconcile the fundamental
principles of the Constitution with changing conditions in the United States.
The Courts and Democracy
Governmental Influence on the Court
The Court must coexist with other governmental bodies that have their own powers, interests,
constituencies, and visions of the public good. Recognizing this, the Court usually
tries to stay somewhere near the boundaries of what is acceptable to other political actors. It does so for a
number of reasons.
First, the Court lacks the power to force others to comply with its decisions. It can only hope that
respect for the law and the Court will be enough to cause government officials to do what it has
mandated in a decision. If the Court fails to gain voluntary compliance, it risks a serious erosion
in its influence, for it then appears weak and ineffectual.
Second, both the president and Congress have certain constitutional powers that give them some
degree of influence over the Court. In addition to the Court's dependence on the
president to carry out its decisions, the president influences the direction of the Court through his power of
appointment. Congress retains the power to change the size, organization, and jurisdiction of the
federal courts. The Senate also plays a role in the appointment process and can
convey its views to the Court during the course of confirmation hearings.
Political Influences on the Court
Interest groups, social movements, and the public not only
indirectly influence the Court through the president and Congress but have direct influence as well. An important
political tactic of interest groups and social movements is the test case, which is an action brought by a group that
is designed to challenge the constitutionality of a law or an
action by government.
Groups wishing to force a court determination on an issue that is important to them will try to
find a person on whose behalf they can bring a suit. Test cases also can be created
by purposely breaking a law that an individual or group believes to be unconstitutional so that it can be tested
in the courts.
Many test cases take the form of class action suits. These are suits brought by an individual, not
only for himself or herself, but also for a class of people in a similar situation. Interest groups
often get involved in suits, even when they are not party to the case, by filing amicus curiae
briefs. Amicus briefs set out the group's position on the constitutional issues or discuss some of the
more important consequences of deciding the case one way or the other. In a sense, this activity is
a form of lobbying.
The Court does not usually stray far from the opinions of elites and the public. Social and
economic elites bring their influence to bear in a number of ways. Their influence
is substantial in the media, the interest group system, party politics, and elections at all levels. It follows,
then, that
elites will play a substantial role in the thinking of
presidents and members of Congress as they, in turn, deal with the Court.
In addition to this powerful but indirect influence, the Court is also shaped by developments on
issues and doctrine within the legal profession as these are expressed by bar associations, law
journals, and law schools. Elites act even more directly on the Court when the interest groups and
the associations that they run bring suits in the federal courts or file amicus briefs in disputes that
are of interest to them.
Public opinion also influences the Court, but the extent of its effects is unclear. Some research
shows that the Court conforms to public opinion about as much as the president and
Congress do. In contrast, other research shows public support for Court action only about one-third of the
time.
Anti-democratic Aspects of the Court
Democracy requires popular sovereignty. We have seen that popular preferences play a larger role in the actions of the Court than might appear to be the case at first glance. Court decisions are consistent with the opinions of the public in a substantial proportion of cases. However, the relationship is far from perfect. The Court's relationship to public opinion is problematic in democratic terms. Not only does it fail to conform to public opinion much of the time, but it often lags behind popular views, even when it eventually comes into line with public opinion.
The public shapes the Court indirectly through elected institutions such as Congress and the
president. However, two factors make the influence of the public less than it might be. First,
Congress and the president are themselves far from perfect democratic instruments of the people.
Second, though the president and Congress constrain its behavior, the Court is able to go its own
way to a considerable degree.
Democracy also requires liberty and political equality. To many people, the protection of freedom and equality is the
primary mission of the Court. Although the court plays an important role in the protection and extension of civil
liberties and citizenship rights, its actions over the long course of history are not entirely praiseworthy. By and
large, the Court generally goes along with government efforts to silence dissident voices and to keep
minorities from enjoying the full protection of the law.
Democracy and the Court Reconsidered
People disagree about what role the Court should play in a democracy. To the framers, who believed that popular democracy and liberty are contradictory, the appropriate role for the Court is that of protector of liberty against public opinion and the elected branches. They had in mind an institution that opposed popular sovereignty. Most Americans today think better of democracy than the framers did, so this openly antidemocratic conception of the Court's role is probably not as appealing as in the past. Americans no doubt want the Court to champion liberty but in a broader context that includes an appreciation for popular sovereignty and political equality. From the point of view used throughout this book, the appropriate role for the Court is to encourage the play of popular sovereignty, political equality, and liberty in American politics.