Chapter 14 Notes: The Courts (Foundations, Jurisdiction, Appointments, The Supreme Court in Action, and Its Role as Policymaker)

14.1 Foundations of judicial power

  • Overview: Chapter focuses on the judicial branch with emphasis on the Supreme Court; explores how federal judiciary is organized, what it does in American government, and its effects on public policy and democracy.
  • Framework for judicial action:
    • The Supreme Court is embedded in a rich web of political linkage and structural environment that shapes its behavior.
    • Political linkage institutions (elections, interest groups, social movements) influence composition, deliberations, and rulings.
    • Structural factors (economic and social change) shape agenda and decisions.
    • The democracy standard asks whether an unelected court can make major policy decisions and how popular sovereignty and majority rule interact with judicial power.
    • The Court often focuses on cases involving political equality and liberty, central to representative democracy.
  • Constitutional foundations of judicial power:
    • The United States Constitution vests judicial power in one Supreme Court and in inferior courts established by Congress (Article III, §1).
    • The judiciary safeguards liberty and property under the Constitution (famous maxim among scholars).
    • Chief Justice Charles Evans Hughes (early 20th c.) emphasized that the Court’s place in the separation of powers is shaped by constitutional provisions, court interpretations, and reactions of other political actors.
    • Article III is relatively sparse on powers and responsibilities of the judiciary; it creates the office of the Chief Justice, provides life tenure for federal judges, specifies Supreme Court jurisdiction, and grants Congress power to create additional courts as needed.
  • Judicial independence and tenure:
    • Federal judges serve life terms, subject to impeachment for “high crimes and misdemeanors”; Congress cannot reduce salaries once in office—meant to protect independence from legislative intimidation.
    • Judges serve during good behavior, effectively until retirement or death.
  • Judicial review and its origins:
    • The Constitution is silent about judicial review; its now-longstanding power to strike down laws/actions conflicting with the Constitution developed through practice.
    • Jefferson and Madison debated whether Congress/president could interpret constitutionality; Hamilton argued judicial review was inherent in separation of powers and essential to a balanced government (Federalist 78).
    • Federalist 78 argued that constitutions place limits on government powers and only the courts can enforce those limits.
    • Marbury v. Madison (1803): established judicial review for the Supreme Court. Key details:
    • Adams’ last-day moves to appoint Federalist judges; Jefferson’s administration instructed Secretary of State Madison not to deliver commissions.
    • Marbury sought a writ of mandamus from the Supreme Court to compel delivery.
    • Marshall’s decision: Marbury had a right to the commission, but the Court could not compel Madison because the Judiciary Act of 1789 extended the Court’s original jurisdiction in a way inconsistent with Article III; thus the Act was unconstitutional.
    • The ruling established judicial review as the province and duty of the judicial department to say what the law is.
  • Early use and evolution of judicial review:
    • Early republic: judicial review exercised with restraint, especially over Congressional acts; overruled states more often than federal action in the early period.
    • 19th–20th centuries: Rehnquist and Roberts courts have frequently overruled both Congress and the President in various contexts, expanding or curtailing federal power in different eras.
    • Post-9/11 and 21st century cases show a trend toward more aggressive use of judicial review in certain domains (e.g., detainee treatment, environmental regulation, immigration policy).
  • Democratic accountability and the counter-majoritarian difficulty:
    • The question of how a nonelected judiciary with life tenure can justify overriding elected branches.
    • Alexander Bickel’s concept of the counter-majoritarian difficulty (1962): judicial review can be seen as deviant in democracy.
    • Counterarguments emphasize protection of minority rights, checks on majoritarian excess, and constitutional amendments allowing popular control.
    • Scholarship suggests insulation from politics does not render judges completely disinterested; they respond to elected officials, public opinion, and other actors; constitutional amendment provides a channel for popular input.
  • Key takeaways:
    • Judicial review is a foundational, historically contested power that shapes national policy and constitutional interpretation.
    • The Supreme Court’s actions are deeply intertwined with political structure, public opinion, and elite influences, yet they also operate under norms (independence, interpretive frameworks).

14.2 Jurisdiction and organization of the federal court system

  • Dual court system:
    • The United States has a national federal court system and a separate system of state courts; most laws and disputes are resolved at the state level, but many important issues reach federal courts.
    • Federal courts deal with issues defined by Constitution, federal statutes, treaties, and other federal concerns; many disputes involving states or federal government are federal matters.
  • Federal jurisdiction (types of cases):
    • Constitutional questions: disputes over meaning of constitutional provisions (e.g., First Amendment, Commerce Clause, presidential powers).
    • Federal statutes: interpretation of federal laws enacted by Congress and signed by the president.
    • Ambassadors and diplomats, diplomatic immunity questions.
    • Treaties and their enforcement by states.
    • Admiralty and maritime issues.
    • United States government as a party in lawsuits.
    • Disputes between states; disputes between a state and a citizen of another state; disputes between a state or citizen and foreign states or citizens (e.g., copyright/patent issues).
  • Organization of the federal judiciary (three-tier pyramid):
    • Bottom tier: 9494 US district courts (trial courts; original jurisdiction; some cases with juries; others by judge).
    • Middle tier: 1313 US Courts of Appeals (appellate courts; hear appeals from district courts; panels usually of three judges; sometimes larger panels for important cases).
    • Top tier: US Supreme Court (ultimate authority; both original and appellate jurisdiction in limited settings; see below).
  • Constitutional vs legislative courts:
    • Constitutional courts: created by Article III; include the Supreme Court and the U.S. Courts of Appeals and District Courts.
    • Legislative courts: created under Article I; specialized courts (e.g., Tax Court, Court of Federal Claims, Foreign Claims Settlement Commission) with different tenure and jurisdiction rules.
  • Specialized appellate structure and notable courts:
    • The DC Circuit (the Twelfth Circuit) is special because it handles many agency rulemaking cases (e.g., SEC, NLRB) and is often described as the second highest court in the land.
    • The Federal Circuit (the Thirteenth Circuit) hears appeals from district courts nationwide on patents, government contracts, and some specialized areas.
  • Case volume and movement through federal courts:
    • District courts handle the vast majority of federal cases; in 2023, the district courts filed upwards of 350,000350{,}000 cases; about 80 ext{%} civil and 20 ext{%} criminal.
    • Appeals: in 2023, just over 40,00040{,}000 cases were filed in federal courts of appeals; roughly 1 ext{%} reached a formal hearing; many end in settlements.
  • Appellate procedure and precedents:
    • At the appellate level, briefs present legal issues; oral arguments may be heard; decisions are issued by panels (often of three judges).
    • Opinions accompany many rulings, explaining majority reasoning; concurring opinions can reflect different rationales; dissenting opinions express minority views and may influence future jurisprudence.
    • Precedent: published appellate decisions guide later decisions; while not always followed slavishly, lower courts generally adhere to precedents, changing only gradually.
  • Geographic and case-portfolio implications:
    • Different circuits have different interpretive tendencies (e.g., Fourth Circuit's emphasis on states’ rights in some periods; Ninth Circuit historically liberal on civil liberties).
    • The scope of nationwide impact: circuit court decisions affect large populations (e.g., Fourth Circuit’s reach to roughly 33,000,00033{,}000{,}000 people; Ninth Circuit to roughly 64,000,00064{,}000{,}000 people in the West).
  • Supreme Court jurisdiction and role in appeals:
    • Congress determines much of the Supreme Court’s appellate jurisdiction; historically, Congress restricted some review after the Civil War; in 19951995 it limited coverage by not requiring the Court to hear cases where a state court finds a federal statute unconstitutional, though it can choose to hear such cases.
    • The Supreme Court remains the highest appellate authority and its decisions become binding precedents for all courts.
  • Practical implications:
    • Most federal cases never reach the Supreme Court; the Court relies on the lower courts to develop most of the law.
    • The Court’s ability to shape nationwide policy depends on certiorari grants and the willingness of lower courts to raise issues of broad constitutional significance.

14.3 Appointment to the federal bench

  • Why appointments matter:
    • Federal judges are appointed for life, shaping long-term public policy; the selection process is a central instrument of presidential influence and political strategy.
  • Who can be a federal judge:
    • The Constitution offers no explicit qualifications beyond being a United States judge; customary expectations require lawyers; historically, many prominent justices had little or no prior judicial experience (e.g., John Marshall; Lewis Brandeis; Harlan Stone; Charles Evans Hughes; Felix Frankfurter; Earl Warren).
    • In recent decades, judicial experience has become increasingly valued as appointments carry long-term influence on policy.
  • Notable trends in backgrounds and diversity:
    • The modern bench has become more diverse in race, gender, and professional background, though still concentrated among elite law schools (Yale, Harvard) and white male elites historically; as of 2024, the Court includes two Black justices (e.g., Clarence Thomas, Ketanji Brown Jackson), one Hispanic justice (Sonia Sotomayor), and four women (Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, Ketanji Brown Jackson).
    • The majority of justices have backgrounds in top law schools and prestigious sectors of the legal profession; diversity in circuit and district levels has improved but still lags behind the broader legal profession and population.
  • The appointment process and politics:
    • Presidents nominate; Senate confirms; the process has become highly partisan and contentious as judicial outcomes have lasting policy implications.
    • Senators’ influence (senatorial courtesy) and the blue-slip process influence nominations:
    • Blue slip: Senators indicate approval/disapproval of a nominee from their state, providing a mechanism to block or vet nominees; its use has varied with partisan control.
    • The Senate has refused to confirm some nominees; historically, of the 143143 Supreme Court nominees, the Senate refused to approve 2828; most refusals occurred when the President was weak or the opposition controlled the Senate. Notable events include:
    • The Bork nomination (1987) failed due to ideological opposition.
    • Clarence Thomas’s confirmation (late 1990s) faced intense questions.
    • The Obama administration’s Merrick Garland nomination (2016) faced a Republican Senate refusal to hold hearings or vote.
    • Filibuster and rule changes:
    • The Senate repealed the judicial-nominations filibuster for federal district and circuit court judges in 20132013, enabling confirmation of many nominees during Obama’s term.
    • The rise of partisan nomination dynamics continued under Trump and Biden:
    • Trump leveraged lists from the conservative Federalist Society to nominate a large number of district and circuit judges; by the end of his term, more than oneextin4one ext{ in }4 sitting judges were Trump nominees.
    • Biden emphasized diversity and merit while seeking to reflect a broader demographic in nominations; by term end, 21 ext{%} of active federal judges were Biden appointees and 27 ext{%} were Trump appointees.
  • Notable historical and contemporary patterns:
    • The evolution from a predominantly white, Protestant, elite-circuit of appointees to a more diverse bench over the last several decades.
    • The interplay between ideology and nominee quality: presidents often select candidates whose judicial philosophies align with their public policy aims, while the Senate’s confirmation process acts as a check (though often a partisan one).
  • Examples illustrating nomination politics:
    • Harriet Miers (2005) nomination withdrawn due to lack of clear constitutional-law credentials; conservative backlash contrasted with Roberts/Alito confirmations who had strong conservative records on the bench.
    • The importance of perceived judicial philosophy during confirmation battles (e.g., concerns about whether nominees have judicial experience and sound constitutional views).
  • Notable longitudinal patterns:
    • Since the Reagan era, Republican presidents frequently nominated conservative judges; Democratic presidents have sought to diversify the bench and prioritize liberal-leaning or broadly acceptable candidates, while maintaining ideological alignment.
    • The bench’s composition can shift over time as justices retire or pass away; new appointments can alter the Court’s balance and its policy direction for decades.

14.4 The Supreme Court in action

  • The Court’s annual cycle and decision process:
    • The Court typically meets from the first Monday in October to late June/early July; it must decide which cases to hear, hear them, and issue rulings.
    • Norms guiding operation:
    • Secrecy: Keep conflicts among justices private to maintain institutional stature; law clerks keep memos and conversations confidential.
    • Seniority: Seniority shapes office space, seating, and order of speaking in conference.
    • Modern transparency pressures: Justices increasingly publish books, give interviews, etc.; a notable breach of secrecy occurred in 2022 with a leaked Dobbs draft.
  • Case selection and control of the docket:
    • The Court screens cases to focus on federal or constitutional questions; several screening mechanisms include standing, ripeness, real and adverse dispute, proper filing, and timely submission.
    • Standing: plaintiffs must have a real and direct stake in the issues; definitions of standing have varied across eras (e.g., Warren Court expanded standing; Rehnquist Court narrowed it).
    • Ripeness: issues must be concrete and not hypothetical; other appeals must be exhausted; injury must have occurred.
    • Writ of Certiorari: the Court can choose which cases to hear; the “Rule of Four” requires at least four justices to grant cert.
    • Practical statistics: the Court receives ~7,0007{,}000 petitions per year but grants cert in only a small portion (e.g., 5959 in the 2022−20232022-2023 term).
    • In the 1970s–1980s, the Court granted cert in about 150150 cases per term.
  • The certiorari and hearing process:
    • After cert is granted, the petitioner files a brief; the respondent files a brief; the federal government (through the Solicitor General) may file and argue the case.
    • Amicus curiae briefs may be filed by interest groups, agencies, or even the President; these briefs provide different perspectives on the issues.
    • Oral arguments: typically one hour total per case (about 30 minutes per side); sometimes more for complex proceedings; judges may grill advocates.
  • Decision making and opinion writing:
    • After arguments, the justices meet in conference; they state positions in order of seniority; the majority’s composition determines which justice writes the majority opinion.
    • Types of opinions:
    • Opinion of the Court: the majority ruling and its official reasoning.
    • Concurring opinion: agrees with the majority outcome but provides different rationales.
    • Dissenting opinion: explains why a justice disagrees with the majority.
    • Assignment of opinions:
    • If the Chief Justice is in the majority, the Chief assigns who writes the majority opinion; if not, the senior-most justice in the majority assigns.
    • The drafting and revision process involves clerks and collaboration with other justices; votes can shift during drafting (e.g., Chief Justice Roberts’ initial vote on Obamacare before writing the ruling).
  • Judicial interpretation approaches:
    • Strict constructionism (traditional/conservative): emphasizes fidelity to the original text and original intent; two main variants:
    • Originalism: interprets according to framers’ original intent.
    • Textualism: interprets according to the plain meaning of the text.
    • Living constitutionalism (liberal/modern approach): constitutional meaning evolves with society; judges consider text, history, tradition, precedent, purpose, and consequences (e.g., Stephen Breyer’s judicial pragmatism).
    • Critics of strict construction argue that the framers’ intent is difficult to determine and that strict approaches can freeze constitutional meaning, while living constitutionalists argue the document must adapt to modern conditions.
    • Notable case study: District of Columbia v. Heller (2008) on the Second Amendment; interpretation diverged between living constitutionalists (emphasizing the phrase about a well-regulated militia) and originalists (emphasizing the right of the people to keep and bear arms).
    • The interplay between living and originalist approaches persists in many major decisions (e.g., Lawrence v. Texas (2003), Obergefell v. Hodges (2015)).
  • External influences on decision making:
    • Governmental influences: president’s nominations, Senate confirmations, and potential legislative changes to jurisdiction or structure.
    • Congressional influence: the Senate’s “Advice and Consent” power; possible budgetary/policy pressures; potential statutory changes (e.g., Civil Rights Act of 1991 to facilitate discrimination suits).
    • Nongovernmental influences: interest groups, social movements, public opinion, and elite legal communities (e.g., Federalist Society) shape agendas and nominations; amicus briefs are a formal channel for public influence.
    • Historical themes: public opinion does not uniformly dictate Court outcomes, but public and elite opinion often align with or respond to major shifts in society (e.g., Warren Court civil liberties expansions often aligned with broad social changes but could conflict with prevailing public opinion at the time).
  • The Court as national policymaker:
    • The Court settles disputes and shapes constitutional meaning; its opinions guide lower courts and public officials.
    • Debates about judicial activism: whether the Court is overstepping its interpretive role or acting to protect constitutional rights and minority interests.
    • The Court’s role has varied across periods, but it consistently influences public policy, sometimes aligning with popular will and sometimes resisting it.

14.5 The Supreme Court as a national policymaker

  • Three traditional periods of constitutional interpretation (plus a more recent fourth):
    • Period 1: National power and property rights, early republic to Civil War (Marshall era, 1801–1835) – emphasis on nationalism and protection of property rights; Court supported strong national government and business interests; notable cases include Fletcher v. Peck (1810) and McCulloch v. Maryland (1819).
    • Period 2: Government and the economy, Reconstruction to the Great Depression – shift toward acknowledging federal power to regulate economy; the Fourteenth Amendment provides a vehicle for national power to regulate economic activity; the Court initially protected corporations against regulation but later accommodated broader federal intervention; the Great Depression era culminated in a constitutional crisis that led to the “switch in time that saved nine” (1937) and a reversal toward supporting New Deal reforms (Social Security Act, Labor Relations Act, state minimum wage laws).
    • Period 3: Individual rights and liberties, World War II to the Reagan era – expansion of civil liberties and incorporation of the Bill of Rights to apply to the states; Warren Court era produced significant decisions expanding free speech, free association, religious freedom, fair trials, and civil rights; notable emphasis on political equality of one person, one vote.
    • Period 4: Conservative retrenchment, 1990s to the present – rise of a conservative majority (Reagan and Bush nominees) that redefined many long-standing doctrines; key themes include limited use of the Commerce Clause to justify federal power, gun rights expansion via Heller (2008), expansion of corporate rights via Citizens United (2010), restrictions on class actions (Walmart v. Dukes; 2011), SB97 decisions on labor rights (Janus v. AFSCME, 2018), and major limitations on voting rights protections (Shelby County v. Holder, 2013).
  • Notable modern cases and their directional impact:
    • District of Columbia v. Heller (2008): upholds an individual right to possess firearms for personal use; interpretation varied between originalist and living approaches.
    • McDonald v. Chicago (2010): incorporation of Second Amendment rights to the states (noted in context; year not explicitly in transcript, but relevant to the period).
    • Citizens United v. FEC (2010): allows unlimited corporate campaign spending; overrides prior campaign-finance precedents; a major shift toward business influence in political processes.
    • Shelby County v. Holder (2013): struck down key provision of the 1965 Voting Rights Act; a major retreat in federal enforcement of voting rights protections across states with histories of discrimination.
    • Janus v. AFSCME (2018): held that non-union public employees cannot be compelled to pay agency fees; a rollback of some public-sector union influence.
    • Obergefell v. Hodges (2015) and Lawrence v. Texas (2003): expansions of LGBTQ+ rights; Kennedy’s pivotal role in both; occasional conservative defections (e.g., Kennedy) on LGBTQ rights and other issues.
    • Bostock v. Clayton County (2020) and Altitude Express v. Sarda (2020): recognition that anti-discrimination laws protect LGBTQ+ individuals in employment; Roberts aligned with liberal outcomes on some matters while maintaining conservative stance on others.
    • Dobbs v. Jackson Women’s Health Organization (2022): overturned Roe v. Wade and the constitutional right to abortion; a landmark conservative shift with massive policy implications.
    • New cases in the early 2020s (West Virginia v. EPA; Carson v. Mangan; Brnovich v. DNC; Cedar Point Nursery v. Hassid) illustrate continued conservative reinterpretation of federal powers and regulatory reach.
  • Dynamics of judicial activism and restraint:
    • The Court’s activist labeling depends on perspective; some argue the Court has become more overtly partisan and engaged in policy-making through its decisions; others argue it remains a necessary check on majorities and government overreach.
    • The Court’s use of remedies (court-ordered actions beyond declaring rights) has expanded since the 1960s (e.g., Brown v. Plata on prison overcrowding, Swan v. Charlotte-Mecklenburg on school desegregation); these remedies often require public spending and policy shifts by other branches.
  • Democracy and the Court: the democracy standard evaluates whether the Court enhances or hinders democracy.
    • The framers designed the Court as a check on democratic branches, but also created a relatively non-democratic institution (life tenure, appointment by a non-elected body).
    • The Court has at times advanced minority rights and democratic protections, and at other times aligned with business and state or federal government power against certain groups.
    • The Court’s relationship to public opinion and elites can shift over time; even when courts appear counter-majoritarian, they often reflect broader social, economic, and political currents and may be constrained by the political system.
  • Summary perspective:
    • The Supreme Court is a powerful and influential national policymaker whose authority is shaped by constitutional design, historical precedent, and ongoing political and social forces.
    • Its trajectory shows a pendulum between expansive protections for individual rights and reinforcements of governmental power or corporate rights, with ongoing debates about its proper role in a democratic society.
  • Connections to broader themes:
    • The Court’s evolution parallels shifts in economic regulation, civil rights, voting rights, campaign finance, and social policy.
    • The balance between majoritarian control and minority protections remains a central tension in American constitutional democracy.
  • Ethical and practical implications:
    • The legitimacy of the Court hinges on perceived legitimacy, independence, and restraint; controversial rulings raise questions about accountability and democratic participation.
    • Remedies and enforcement depend on other branches and public institutions; without voluntary compliance, the Court’s authority could be undermined.
  • Key figures and cases to know:
    • Marbury v. Madison (18031803)
    • Fletcher v. Peck (18101810), McCulloch v. Maryland (18191819)
    • Korematsu v. United States (19441944) – noted as a stark example of political pressure affecting judicial decisions
    • Brown v. Board of Education (19541954)
    • Plessy v. Ferguson (1896)
    • Roe v. Wade (1973) and Dobbs v. Jackson Women’s Health Organization (20222022)
    • Citizens United v. FEC (20102010)
    • Shelby County v. Holder (20132013)
    • Janus v. AFSCME (2018)
    • Lawrence v. Texas (2003) and Obergefell v. Hodges (2015)
    • Bostock v. Clayton County (20202020)
    • District of Columbia v. Heller (20082008)
    • Tracing the evolution from early constitutional interpretation to contemporary rulings helps explain how the Court acts as a national policymaker within the democratic system.

Connections to earlier chapters and real-world relevance:

  • Foundational principles of separation of powers, checks and balances, and judicial independence tie back to earlier discussions of constitutional design and the functioning of each branch.
  • The concept of “counter-majoritarian difficulty” connects to broader democratic theory and argues about how unelected judges can protect minority rights and constitutional guarantees even when they may contradict current popular sentiment.
  • The discussion of elite influence (law schools, bar associations, think tanks, public opinion, interest groups) ties to policy formation, politics, and the broader democratic process.
  • Real-world relevance is evident in contemporary debates over abortion rights, gun rights, voting rights, environmental regulation, labor rights, corporate political influence, and immigration policy, all of which involve the Court’s interpretations and remedies.

Quick reference notes (LaTeX-formatted items)

  • Article III: The judicial power shall be vested in one Supreme Court and in such inferior courts as Congress may ordain and establish. extArticleIII,Sec.1ext{Article III, Sec. 1}
  • Judicial tenure: lifelong appointments; salary protection; impeachment for misconduct. extgoodbehaviorext{good behavior}
  • Marbury v. Madison, 18031803: established judicial review; authority of the Court to say what the law is.
  • Writ of mandamus: used in Marbury; struck down as unconstitutional due to expansion of original jurisdiction by the Judiciary Act of 17891789.
  • Rule of Four: at least four justices must vote to grant certiorari.
  • District courts: 9494 districts; original jurisdiction.
  • Courts of Appeals: 1313 circuits; appellate jurisdiction; DC Circuit and Federal Circuit special roles.
  • Supreme Court composition: historically varied; current size set at 99 justices (since 18691869).
  • Notable terms and cases: Heller 20082008, Citizens United 20102010, Shelby County 20132013, Janus 20182018, Dobbs 20222022, Bostock 20202020, Obergefell 20152015, Lawrence 20032003.
  • Major procedural concepts: standing, ripeness, real and adverse dispute, case within the Court’s jurisdiction, certiorari process, briefs, oral arguments, conference, opinion writing, precedents, stare decisis.
  • Ideological schools of judicial interpretation:
    • Originalism: advocates interpret according to original meaning and intent.
    • Textualism: interpret according to the plain text.
    • Living constitutionalism: interpretation evolves with society; Breyer’s pragmatism emphasizes text, history, precedent, purpose, and consequences.
  • Notable shifts in jurisprudence:
    • From broad protection of corporate power and restrained government in Period 2 to expansion of individual rights in Period 3, followed by conservative retrenchment in Period 4.
  • Test cases illustrating the Court’s influence on public life: Brown v. Board of Education (1954), Roe v. Wade (1973), Brown v. Plata (2011), Swan v. Charlotte-Mecklenburg (1971), Gideon v. Wainwright (1963).
  • Structural note: the federal system handles most cases at the state level, with the federal courts addressing issues of constitutional rights, federal statutes, or intergovernmental disputes; most national policy questions eventually reach federal courts, but many are resolved at the state level beforehand.