The Judiciary
American Government


By the end of this chapter, you should be able to:

  1. Explain what judicial review is and trace its origins.

  2. List and comment on the three eras of varying Supreme Court influences on national policy.

  3. Explain what is meant by a dual court system and describe its effects on how cases are processed, decided, and appealed.

  4. List the various steps that cases go through to reach the Supreme Court and explain the considerations involved at each step.

  5. Discuss the dimensions of power exercised today by the Supreme Court and the opposing viewpoints on an activist Supreme Court.



An independent judiciary with the power of judicial review—the power to decide the constitutionality of acts of Congress, the executive branch, and state governments—can be a potent political force. The judicial branch of the United States government has developed its power from the earliest days of the nation, when Marshall and Taney put the Supreme Court at the center of the most important issues of the time.

From 1787 to 1865, the Supreme Court focused on the establishment of national supremacy. From 1865 to 1937, it struggled with defining the scope of the government’s power over the economy. In the present era, it has deliberated about personal liberties.

It became easier for citizens and groups to gain access to the federal courts in the mid- to late twentieth century. This is the result of judges’ willingness to consider class action suits and amicus curiae briefs and to allow fee shifting. The lobbying efforts of interest groups also had a powerful effect. At the same time, the scope of the courts’ political influence has increasingly widened as various groups and interests have acquired access to the courts, as the judges have developed a more activist stance, and as Congress has passed more laws containing vague or equivocal language. Still, the Supreme Court controls its own workload and grants certiorari to a very small percentage of appellate cases. As a result, although the Supreme Court is the pinnacle of the federal judiciary, most decisions are made by the twelve circuit courts of appeals and the ninety-four federal district courts.

Chapter Outline


I.      The idea of judicial review

A.    Only in the United States do judges play so large a role in policy-making

1.     Judicial review: the right of the federal courts to rule on the constitutionality of laws and executive actions

a)     Chief judicial weapon in the checks and balances system

b)     Since 1789, the Supreme Court has declared over 160 federal laws unconstitutional

2.     Few other countries have such a power

a)     In Britain, parliament is the supreme law-maker

b)     Judicial review is only effective in a few other countries with stable federal systems (e.g., Australia, Canada, Germany, India)

B.     Debate is over how the Constitution should be interpreted

1.     Strict construction: judges are bound by wording of Constitution

2.     Activist: judges should look to underlying principles of Constitution

3.     Not a matter of liberal versus conservative

a)     A judge can be both conservative and activist, or liberal and strict constructionist

b)     Today: most activists tend to be liberal, most strict constructionists tend to be conservative

II.     The development of the federal courts

A.    Founders’ view

1.     Most Founders probably expected judicial review but did not expect federal court to play such a large role in policy-making

2.     Traditional view: judges find and apply existing law

3.     Activist judges would later respond that judges make law

4.     Traditional view made it easy for Founders to predict courts would be neutral and passive in public affairs

5.     Hamilton: courts are the least dangerous branch; their authority only limits the legislature

6.     But federal judiciary evolved toward judicial activism, shaped by political, economic, ideological forces of three historical eras

B.     National supremacy and slavery: 1789 to 1861

1.     Marbury v. Madison (1803) and McCulloch v. Maryland (1819)

a)     Supreme Court could declare a congressional act unconstitutional

b)     Power granted to federal government should be construed broadly

c)     Federal law is supreme over state law

2.     Other cases: interstate commerce clause is placed under the authority of federal law; state law conflicting with federal law was declared void

3.     Dred Scott v. Sandford (1857): Blacks were not, and could not become, free citizens of the U.S.; federal law (Missouri Compromise) prohibiting slavery in northern territories was unconstitutional

C.     Government and the economy: 1865 to 1936

1.     Dominant issues of the period

a)     Under what circumstances could the state governments regulate the economy?

b)     When could the federal government do so?

2.     Private property held to be protected by the Fourteenth Amendment

3.     Judicial activism—Supreme Court assessing the constitutionality of governmental regulation of business or labor

4.     Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business

5.     The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to Blacks—upheld segregation, excluded Blacks from voting in many states

D.    Government and political liberty: 1936 to the present

1.     Court establishes tradition of deferring to the legislature in economic regulation cases

2.     Court shifts attention to personal liberties and is active in defining rights

3.     Failed court-packing plan (FDR); “the switch in time that saved nine”

4.     Warren Court provided a liberal protection of rights and liberties against government trespass

E.     The revival of state sovereignty

1.     Beginning in 1992, the Supreme Court began to rule that the states have the right to resist some federal action

2.     Reassertion of limits to federal supremacy in cases involving gun control, Indian tribe lawsuits

III.    The structure of the federal courts

A.    Two kinds of federal courts were created by Congress to handle cases that the Supreme Court does not need to decide

1.     Constitutional courts—exercise judicial powers found in Article III

a)     Judges serve during good behavior

b)     Salaries not reduced while in office

c)     Examples: District Courts (94), Courts of Appeals (12)

2.     Legislative courts

a)     Created by Congress for specialized purposes

b)     Judges have fixed terms

c)     Judges can be removed

d)     No salary protection

e)     Example: Court of Military Appeals

B.     Selecting judges

1.     Judicial behavior

a)     Party background has a strong effect on judicial behavior

b)     Other factors also shape court decisions: facts of the case, prior rulings, legal arguments

2.     Senatorial courtesy

a)     Appointees for federal courts are reviewed by senators from that state, if the senators are of the president’s party (particularly for U.S. district courts)

b)     Gives heavy weight to preferences of senators from state in which judge will serve

3.     The “litmus test”

a)     Litmus test: a test of ideological purity

b)     Presidents seek judicial appointees who share their political ideologies

c)     Has caused different circuits to come to different rulings about similar cases

d)     Raises concerns that ideological tests are too dominant, and has caused delays in securing Senate confirmations

e)     Greatest impact on Supreme Court—no tradition of senatorial courtesy

IV.   The jurisdiction of the federal courts

A.    Dual court system

1.     State court systems, federal court system

2.     Federal cases listed in Article III and Eleventh Amendment of Constitution

a)     Federal question cases: involving U.S. Constitution, federal law, treaties

b)     Diversity cases: involving different states, or citizens of different states

3.     Some cases can be tried in either federal or state court

a)     Example: if both federal and state laws have been broken (dual sovereignty; the Rodney King case)

b)     Jurisdiction: each government has right to enact laws and neither can block prosecution out of sympathy for the accused

4.     Some cases that begin in state courts can be appealed to Supreme Court

5.     Controversies between two state governments can only be heard by Supreme Court

B.     Route to the Supreme Court

1.     Most federal cases begin in district courts

a)     Most are straightforward, do not lead to new public policy

b)     Volume is huge: About 650 district court judges received over 300,000 cases

2.     Supreme Court picks the cases it wants to hear on appeal

a)     Requires agreement of four justices to hear case—to issue a writ of certiorari

b)     Supreme Court generally only agrees to review certain types of cases

(1)    Involving significant federal or constitutional question

(2)    Involving conflicting decisions by circuit courts

(3)    Involving Constitutional interpretation by one of the highest state courts, about state or federal law

c)     Court may consider 7,000 petitions each year, but only about 100 appeals are granted certiorari

d)     Limited number of cases heard results in diversity of constitutional interpretation among appeals courts

V.     Getting to court

A.    Deterrents to the courts acting as democratic institutions

1.     Supreme Court rejects all but a few of the applications for certiorari

2.     Costs of appeal are high

a)     Financial costs may be lowered

(1)    In forma pauperis: plaintiff indigent, with costs paid by government

(2)    Indigent defendant in a criminal trial: legal counsel provided by government at no charge

(3)    Payment by interest groups (e.g., American Civil Liberties Union)

b)     Cost in terms of time is also high, and cannot be mitigated

B.     Fee shifting

1.     Usually, each party must pay their own legal expenses

2.     The losing defendant pays the plaintiff’s expenses (fee shifting) in certain cases

C.     Standing

1.     Guidelines regarding who is entitled to bring a case

a)     There must be a real controversy between adversaries

b)     Personal harm must be demonstrated

c)     Being a taxpayer does not ordinarily constitute entitlement to challenge federal government action; this requirement is relaxed when the First Amendment is involved

2.     Sovereign immunity

a)     Government must consent to being sued

b)     By statute, government has given its consent to be sued in cases involving contract disputes and negligence

D.    Class-action suits

1.     Brought on behalf of all similarly situated persons

2.     Number of class-action suits increased because there were financial incentives to bring suit and because Congress was not meeting new concerns

3.     In 1974, Supreme Court tightened rules on these suits for federal courts, though many state courts remain accessible

4.     Big class-action suits affect how courts make public policy (ex.: asbestos, silicone breast implants)

VI.   The Supreme Court in action

A.    Most cases arrive at the Court through a writ of certiorari

B.     Lawyers then submit briefs: documents that set forth the facts of the case, summarizes the lower court decision, gives the argument of that side of the case, and discusses other issues

C.     Oral arguments by lawyers after briefs submitted

1.     Each side has one half-hour

2.     Justices can interrupt with questions

D.    Since federal government is a party to almost half the cases, the solicitor general frequently appears before the courts

1.     Solicitor general: federal government’s top trial lawyer

2.     Decides what cases the government will appeal from lower courts

3.     Approves every case presented to the Supreme Court

E.     Justices may also consider other opinions

1.     Amicus curiae briefs submitted if both parties agree or Supreme Court grants permission

2.     Other influences on the justices include law journals

F.     Conference procedures

1.     Role of chief justice: speaking first, voting last

2.     Selection of opinion writer by senior judge on winning side

3.     Four kinds of court opinions

a)     Per curiam: brief and unsigned

b)     Opinion of the court: majority opinion

c)     Concurring opinion: agree with the ruling of the majority opinion, but modify the supportive reasoning

d)     Dissenting opinion: minority opinion

e)     About 40% of opinions are unanimous

VII.  The power of the federal courts

A.    The power to make policy

1.     By interpretation of the Constitution or law

2.     By extending the reach of existing law

3.     By designing remedies that involve judges acting in administrative or legal ways

B.     Measures of power

1.     Number of laws declared unconstitutional (over 160)

2.     Number of prior cases overturned; not following stare decisis (over 260 cases since 1810)

3.     Extent to which judges will handle cases once left to the legislature (political questions)

4.     Kinds of remedies imposed; judges may go beyond what is narrowly required

5.     Basis for sweeping orders can come either from the Constitution or from court interpretation of federal laws

C.     Views of judicial activism

1.     Supporters

a)     Courts should correct injustices when other branches or state governments refuse to do so

b)     Courts are the last resort for those without the power or influence to gain new laws

Important Terms

*activist approach

The view that judges should discern the general principles underlying laws or the Constitution and apply them to modern circumstances.

*amicus curiae

A brief submitted by a “friend of the court.”


A written statement by an attorney that summarizes a case and the laws and rulings that support it.

*class action suit

A case brought by someone to help him or her and all others who are similarly situated.

*concurring opinion

A signed opinion in which one or more justices agree with the majority’s conclusion but for different reasons.

*constitutional court

A federal court authorized by Article III of the Constitution that keeps judges in office during good behavior and prevents their salaries from being reduced.  They are the Supreme Court (created by the Constitution) and appellate and district courts created by Congress.

*courts of appeals

Federal courts that hear appeals from district courts.  No trials.

*dissenting opinion

A signed opinion in which one or more of the justices disagree with the majority view.

*district courts

The lowest federal courts; federal trials can be held only here.


*diversity cases

Cases involving citizens of different states who can bring suit in federal courts.

*dual sovereignty

A doctrine holding that state and federal authorities can prosecute the same person for the same conduct, each authority prosecuting under its own law.

*federal question cases

Cases concerning the Constitution, federal laws, or treaties.

*judicial review

The power of courts to declare acts of the legislature and the executive unconstitutional.

*legislative court

Courts created by Congress for specialized purposes whose judges do not enjoy the protections of Article III of the Constitution.

*litmus test

An examination of the political ideology of a nominated judge.

*opinion of the Court

An signed opinion of a majority of the Supreme Court.

*per curiam opinion

A brief and unsigned court opinion.


The party that initiates a lawsuit.

*political question

An issue the Supreme Court will allow the executive and legislative branches to decide.


A judicial order enforcing a right or redressing a wrong.

*sovereign immunity

The rule that a citizen cannot sue the government without the government’s consent.


A legal rule stating who is authorized to start a lawsuit.

*stare decisis

”Let the decision stand,” or allowing prior rulings to control the current case.

*strict constructionist

The view that judges should decide cases strictly on the basis of the language of the laws and the Constitution.

*writ of certiorari

An order by a higher court directing a lower court to send up a case for review.