State of Florida Supreme Court Building in Tallahassee. (Courtesy Florida Supreme Court Historical Society, Tallahassee)

(The following article is taken from the U.S. Department of State publication, Outline of the U.S. Legal System.)

 

One of the most important, most interesting, and, possibly, most confusing features of the judiciary in the United States is the dual court system; that is, each level of government (state and national) has its own set of courts. Thus, there is a separate court system for each state, one for the District of Columbia, and one for the federal government. Some legal problems are resolved entirely in the state courts, whereas others are handled entirely in the federal courts. Still others may receive attention from both sets of tribunals, which sometimes causes friction. The federal courts are discussed in this chapter and the state courts in Chapter 2.

 

THE HISTORICAL CONTEXT

Prior to the adoption of the Constitution, the United States was governed by the Articles of Confederation. Under the Articles, almost all functions of the national government were vested in a single-chamber legislature called Congress. There was no separation of executive and legislative powers.

 

The absence of a national judiciary was considered a major weakness of the Articles of Confederation. Consequently, the delegates gathered at the Constitutional Convention in Philadelphia in 1787 expressed widespread agreement that a national judiciary should be established. A good deal of disagreement arose, however, on the specific form that the judicial branch should take.

 

The Constitutional Convention and Article III

The first proposal presented to the Constitutional Convention was the Virginia Plan, which would have set up both a Supreme Court and inferior federal courts. Opponents of the Virginia Plan responded with the New Jersey Plan, which called for the creation of a single federal supreme tribunal. Supporters of the New Jersey Plan were especially disturbed by the idea of lower federal courts. They argued that the state courts could hear all cases in the first instance and that a right of appeal to the Supreme Court would be sufficient to protect national rights and provide uniform judgments throughout the country.

 

The conflict between the states' rights advocates and the nationalists was resolved by one of the many compromises that characterized the Constitutional Convention. The compromise is found in Article III of the Constitution, which begins, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

 

The Judiciary Act of 1789

Once the Constitution was ratified, action on the federal judiciary came quickly. When the new Congress convened in 1789, its first major concern was judicial organization. Discussion of Senate Bill 1 involved many of the same participants and arguments as were involved in the Constitutional Convention's debates on the judiciary. Once again, the question was whether lower federal courts should be created at all or whether federal claims should first be heard in state courts. Attempts to resolve this controversy split Congress into two distinct groups.

 

One group, which believed that federal law should be adjudicated in the state courts first and by the U.S. Supreme Court only on appeal, expressed the fear that the new government would destroy the rights of the states. The other group of legislators, suspicious of the parochial prejudice of state courts, feared that litigants from other states and other countries would be dealt with unjustly. This latter group naturally favored a judicial system that included lower federal courts. The law that emerged from this debate, the Judiciary Act of 1789, set up a judicial system composed of a Supreme Court, consisting of a chief justice and five associate justices; three circuit courts, each comprising two justices of the Supreme Court and a district judge; and 13 district courts, each presided over by one district judge. The power to create inferior federal courts, then, was immediately exercised. Congress created not one but two sets of lower courts.

 

THE U.S. SUPREME COURT

Supreme Court Justice Charles Evans Hughes wrote in The Supreme Court of the United States (1966) that the Court "is distinctly American in conception and function, and owes little to prior judicial institutions." To understand what the framers of the Constitution envisioned for the Court, another American concept must be considered: the federal form of government. The Founders provided for both a national government and state governments; the courts of the states were to be bound by federal laws. However, final interpretation of federal laws could not be left to a state court and certainly not to several state tribunals, whose judgments might disagree. Thus, the Supreme Court must interpret federal legislation. Another of the Founders' intentions was for the federal government to act directly upon individual citizens as well as upon the states.

 

Given the Supreme Court's importance to the U.S. system of government, it was perhaps inevitable that the Court would evoke great controversy. Charles Warren, a leading student of the Supreme Court, said in The Supreme Court in United States History: "Nothing in the Court's history is more striking than the fact that while its significant and necessary place in the Federal form of Government has always been recognized by thoughtful and patriotic men, nevertheless, no branch of the Government and no institution under the Constitution has sustained more continuous attack or reached its present position after more vigorous opposition."

 

The Court's First Decade

George Washington, the first president of the United States, established two important traditions when he appointed the first Supreme Court justices. First, he began the practice of naming to the Court those with whom he was politically compatible. Washington, the only president ever to have an opportunity to appoint the entire federal judiciary, filled federal judgeships, without exception, with faithful members of the Federalist Party. Second, Washington's appointees offered roughly equal geographic representation on the federal courts. His first six appointees to the Supreme Court included three Northerners and three Southerners.

 

The chief justiceship was the most important appointment Washington made. The president felt that the man to head the first Supreme Court should be an eminent lawyer, statesman, executive, and leader. Many names were presented to Washington, and at least one person formally applied for the position. Ultimately, Washington settled upon John Jay of New York. Although only 44 years old, Jay had experience as a lawyer, a judge, and a diplomat. In addition, he was the main drafter of his state's first constitution.

 

The Supreme Court met for the first time on Monday, February 1, 1790, in the Royal Exchange, a building located in the Wall Street section of New York City, and its first session lasted just 10 days. During this period the Court selected a clerk, chose a seal, and admitted several lawyers to practice before it in the future. There were, of course, no cases to be decided; the Court did not rule on a single case during its first three years. In spite of this insignificant and abbreviated beginning, Charles Warren wrote, "The New York and the Philadelphia newspapers described the proceedings of this first session of the Court more fully than any other event connected with the new government; and their accounts were reproduced in the leading papers of all the states."

 

During its first decade the Court decided only about 50 cases. Given the scarcity of Supreme Court business in the early days, Chief Justice Jay's contributions may be traced primarily to his circuit court decisions and his judicial conduct.

 

Perhaps the most important of Jay's contributions, however, was his insistence that the Supreme Court could not provide legal advice for the executive branch in the form of an advisory opinion. Jay was asked by Treasury Secretary Alexander Hamilton to issue an opinion on the constitutionality of a resolution passed by the Virginia House of Representatives, and President Washington asked Jay for advice on questions relating to his Neutrality Proclamation. In both instances, Jay's response was a firm "No," because Article III of the Constitution provides that the Court is to decide only cases pertaining to actual controversies.

 

The Impact of Chief Justice Marshall

John Marshall served as chief justice from 1801 to 1835 and dominated the Court to a degree unmatched by any other justice. Marshall's dominance of the Court enabled him to initiate major changes in the way opinions were presented. Prior to his tenure, the justices ordinarily wrote separate opinions (called "seriatim" opinions – Latin for "one after the other") in major cases. Under Marshall's stewardship, the Court adopted the practice of handing down a single opinion. Marshall's goal was to keep dissension to a minimum. Arguing that dissent undermined the Court's authority, he tried to persuade the justices to settle their differences privately and then present a united front to the public. Marshall also used his powers to involve the Court in the policy-making process. Early in his tenure as chief justice, for example, the Court asserted its power to declare an act of Congress unconstitutional, in Marbury v. Madison (1803).

 

This case had its beginnings in the presidential election of 1800, when Thomas Jefferson defeated John Adams in his bid for reelection. Before leaving office in March 1801, however, Adams and the lame-duck Federalist Congress created several new federal judgeships. To fill these new positions Adams nominated, and the Senate confirmed, loyal Federalists. In addition, Adams named his outgoing secretary of state, John Marshall, to be the new chief justice of the Supreme Court.

 

As secretary of state it had been Marshall's job to deliver the commissions of the newly appointed judges. Time ran out, however, and 17 of the commissions were not delivered before Jefferson's inauguration. The new president ordered his secretary of state, James Madison, not to deliver the remaining commissions. One of the disappointed nominees was William Marbury. He and three of his colleagues, all confirmed as justices of the peace for the District of Columbia, decided to ask the Supreme Court to force Madison to deliver their commissions. They relied upon Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the authority to issue writs of mandamus – court orders commanding a public official to perform an official, nondiscretionary duty.

 

The case placed Marshall in a predicament. Some suggested that he disqualify himself because of his earlier involvement as secretary of state. There was also the question of the Court's power. If Marshall were to grant the writ, Madison (under Jefferson's orders) would be almost certain to refuse to deliver the commissions. The Supreme Court would then be powerless to enforce its order. However, if Marshall refused to grant the writ, Jefferson would win by default.

 

The decision Marshall fashioned from this seemingly impossible predicament was evidence of sheer genius. He declared Section 13 of the Judiciary Act of 1789 unconstitutional because it granted original jurisdiction to the Supreme Court in excess of that specified in Article III of the Constitution. Thus the Court's power to review and determine the constitutionality of acts of Congress was established. This decision is rightly seen as one of the single most important decisions the Supreme Court has ever handed down. A few years later the Court also claimed the right of judicial review over actions of state legislatures; during Marshall's tenure it overturned more than a dozen state laws on constitutional grounds.

 

The Changing Issue Emphasis of the Supreme Court

Until approximately 1865 the legal relationship between the national and state governments, or cases of federalism, dominated the Court's docket. John Marshall believed in a strong national government and did not hesitate to restrict state policies that interfered with its activities. A case in point is Gibbons v. Ogden (1824), in which the Court overturned a state monopoly over steamboat transportation on the ground that it interfered with national control over interstate commerce. Another good example of Marshall's use of the Court to expand the federal government's powers came in McCulloch v. Maryland (1819), in which the chief justice held that the Constitution permitted Congress to establish a national bank. The Court's insistence on a strong national government did not significantly diminish after Marshall's death. Roger Taney, who succeeded Marshall as chief justice, served from 1836 to 1864. Although the Court's position during this period was not as uniformly favorable to the federal government, the Taney Court did not reverse the Marshall Court's direction.

 

During the period 1865-1937 issues of economic regulation dominated the Court's docket. The shift in emphasis from federalism to economic regulation was brought on by a growing number of national and state laws aimed at monitoring business activities. As such laws increased, so did the number of cases challenging their constitutionality. Early in this period the Court's position on regulation was mixed, but by the 1920s the bench had become quite hostile toward government regulatory policy. Federal regulations were generally overturned on the ground that they were unsupported by constitutional grants of power to Congress, whereas state laws were thrown out mainly as violations of economic rights protected by the Fourteenth Amendment.

 

Since 1937 the Supreme Court has focused on civil liberties concerns – in particular, the constitutional guarantees of freedom of expression and freedom of religion. In addition, an increasing number of cases have dealt with procedural rights of criminal defendants. Finally, the Court has decided a great number of cases concerning equal treatment by the government of racial minorities and other disadvantaged groups.

 

The Supreme Court as a Policy Maker

The Supreme Court's role as a policy maker derives from the fact that it interprets the law. Public policy issues come before the Court in the form of legal disputes that must be resolved.

 

An excellent example may be found in the area of racial equality. In the late 1880s many states enacted laws requiring the separation of African Americans and whites in public facilities. In 1890, for instance, Louisiana enacted a law requiring separate but equal railroad accommodations for African Americans and whites. A challenge came two years later. Homer Plessy, who was one-eighth black, protested against the Louisiana law by refusing to move from a seat in the white car of a train traveling from New Orleans to Covington, Louisiana. Arrested and charged with violating the statute, Plessy contended that the law was unconstitutional. The U.S. Supreme Court, in Plessy v. Ferguson (1896), upheld the Louisiana statute. Thus the Court established the "separate-but-equal" policy that was to reign for about 60 years. During this period many states required that the races sit in different areas of buses, trains, terminals, and theaters; use different restrooms; and drink from different water fountains. African Americans were sometimes excluded from restaurants and public libraries. Perhaps most important, African American students often had to attend inferior schools.

 

Separation of the races in public schools was contested in the famous case Brown v. Board of Education (1954). Parents of African American schoolchildren claimed that state laws requiring or permitting segregation deprived them of equal protection of the laws under the Fourteenth Amendment. The Supreme Court ruled that separate educational facilities are inherently unequal and, therefore, segregation constitutes a denial of equal protection. In the Brown decision the Court laid to rest the separate-but-equal doctrine and established a policy of desegregated public schools.

 

In an average year the Court decides, with signed opinions, between 80 and 90 cases. Thousands of other cases are disposed of with less than the full treatment. Thus the Court deals at length with a very select set of policy issues that have varied throughout the Court's history. In a democracy, broad matters of public policy are presumed to be left to the elected representatives of the people – not to judicial appointees with life terms. Thus, in principle U.S. judges are not supposed to make policy. However, in practice judges cannot help but make policy to some extent.

 

The Supreme Court, however, differs from legislative and executive policy makers. Especially important is the fact that the Court has no self-starting device. The justices must wait for problems to be brought to them; there can be no judicial policy making if there is no litigation. The president and members of Congress have no such constraints. Moreover, even the most assertive Supreme Court is limited to some extent by the actions of other policy makers, such as lower-court judges, Congress, and the president. The Court depends upon others to implement or carry out its decisions.

 

The Supreme Court as Final Arbiter

The Supreme Court has both original and appellate jurisdiction. Original jurisdiction means that a court has the power to hear a case for the first time. Appellate jurisdiction means that a higher court has the authority to review cases originally decided by a lower court. The Supreme Court is overwhelmingly an appellate court since most of its time is devoted to reviewing decisions of lower courts. It is the highest appellate tribunal in the country. As such, it has the final word in the interpretation of the Constitution, acts of legislative bodies, and treaties – unless the Court's decision is altered by a constitutional amendment or, in some instances, by an act of Congress.

 

Since 1925 a device known as "certiorari" has allowed the Supreme Court to exercise discretion in deciding which cases it should review. Under this method a person may request Supreme Court review of a lower court decision; then the justices determine whether the request should be granted. If review is granted, the Court issues a writ of certiorari, which is an order to the lower court to send up a complete record of the case. When certiorari is denied, the decision of the lower court stands.

 

The Supreme Court at Work

The formal session of the Supreme Court lasts from the first Monday in October until the business of the term is completed, usually in late June or July. Since 1935 the Supreme Court has had its own building in Washington, D.C. The imposing five-story marble building has the words "Equal Justice Under Law" carved above the entrance. It stands across the street from the U.S. Capitol. Formal sessions of the Court are held in a large courtroom that seats 300 people. At the front of the courtroom is the bench where the justices are seated. When the Court is in session, the chief justice, followed by the eight associate justices in order of seniority, enters through the purple draperies behind the bench and takes a seat. Seats are arranged according to seniority with the chief justice in the center, the senior associate justice on the chief justice's right, the second-ranking associate justice on the left, and continuing alternately in declining order of seniority. Near the courtroom are the conference room where the justices decide cases and the chambers that contain offices for the justices and their staffs.

 

The Court's term is divided into sittings of approximately two weeks each, during which it meets in open session and holds internal conferences, and recesses, during which the justices work behind closed doors as they consider cases and write opinions. The 80 to 90 cases per term that receive the Court's full treatment follow a fairly routine pattern.

 

Oral Argument. Oral arguments are generally scheduled on Monday through Wednesday during the sittings. The sessions run from 10:00 a.m. until noon and from 1:00 until 3:00 p.m. Because the procedure is not a trial or the original hearing of a case, no jury is assembled and no witnesses are called. Instead, the two opposing attorneys present their arguments to the justices. The general practice is to allow 30 minutes for each side, although the Court may decide that additional time is necessary. The Court can normally hear four cases in one day. Attorneys presenting oral arguments are frequently interrupted with questions from the justices. The oral argument is considered very important by both attorneys and justices because it is the only stage in the process that allows such personal exchanges.

 

The Conference. On Fridays preceding the two-week sittings the Court holds conferences; during sittings it holds conferences on Wednesday afternoon and all day Friday. At the Wednesday meeting the justices discuss the cases argued on Monday. At the Friday conference they discuss the cases that were argued on Tuesday and Wednesday, plus any other matters that need to be considered. The most important of these other matters are the certiorari petitions.

 

Prior to the Friday conference each justice is given a list of the cases that will be discussed. The conference begins at about 9:30 or 10:00 a.m. and runs until 5:30 or 6:00 p.m. As the justices enter the conference room they shake hands and take their seats around a rectangular table. They meet behind locked doors, and no official record is kept of the discussions. The chief justice presides over the conference and offers an opinion first in each case. The other justices follow in descending order of seniority.

 

A quorum for a decision on a case is six members; obtaining a quorum is seldom difficult. Cases are sometimes decided by fewer than nine justices because of vacancies, illnesses, or nonparticipation resulting from possible conflicts of interest. Supreme Court decisions are made by a majority vote. In case of a tie the lower-court decision is upheld.

 

Opinion Writing. After a tentative decision has been reached in conference, the next step is to assign the Court's opinion to an individual justice. The chief justice, if voting with the majority, either writes the opinion or assigns it to another justice who voted with the majority. When the chief justice votes with the minority, the most senior justice in the majority makes the assignment.

 

After the conference the justice who will write the Court's opinion begins work on an initial draft. Other justices may work on the case by writing alternative opinions. The completed opinion is circulated to justices in both the majority and the minority groups. The writer seeks to persuade justices originally in the minority to change their votes, and to keep his or her majority group intact. A bargaining process occurs, and the wording of the opinion may be changed in order to satisfy other justices or obtain their support. A deep division in the Court makes it difficult to achieve a clear, coherent opinion and may even result in a shift in votes or in another justice's opinion becoming the Court's official ruling.

 

In most cases a single opinion does obtain majority support, although few rulings are unanimous. Those who disagree with the opinion of the Court are said to dissent. A dissent does not have to be accompanied by an opinion; in recent years, however, it usually has been. Whenever more than one justice dissents, each may write an opinion or all may join in a single opinion.

 

On occasion a justice will agree with the Court's decision but differ in his or her reason for reaching that conclusion. Such a justice may write what is called a concurring opinion. An opinion labeled "concurring and dissenting" agrees with part of a Court ruling but disagrees with other parts. Finally, the Court occasionally issues a per curiam opinion – an unsigned opinion that is usually quite brief. Such opinions are often used when the Court accepts the case for review but gives it less than full treatment. For example, it may decide the case without benefit of oral argument and issue a per curiam opinion to explain the disposition of the case.

 

THE U.S. COURTS OF APPEALS

The courts of appeals receive less media coverage than the Supreme Court, but they are very important in the U.S. judicial system. Considering that the Supreme Court hands down decisions with full opinions in only 80 to 90 cases each year, it is apparent that the courts of appeals are the courts of last resort for most appeals in the federal court system.

 

Circuit Courts: 1789-1891The Judiciary Act of 1789 created three circuit courts (courts of appeals), each composed of two justices of the Supreme Court and a district judge. The circuit court was to hold two sessions each year in each district within the circuit. The district judge became primarily responsible for establishing the circuit court's workload. The two Supreme Court justices then came into the local area and participated in the cases. This practice tended to give a local rather than national focus to the circuit courts.

 

The circuit court system was regarded from the beginning as unsatisfactory, especially by Supreme Court justices, who objected to the traveling imposed upon them. Attorney General Edmund Randolph and President Washington urged relief for the Supreme Court justices. Congress made a slight change in 1793 by altering the circuit court organization to include only one Supreme Court justice and one district judge. In the closing days of President John Adams's administration in 1801, Congress eliminated circuit riding by the Supreme Court justices, authorized the appointment of 16 new circuit judges, and greatly extended the jurisdiction of the lower courts.

 

The new administration of Thomas Jefferson strongly opposed this action, and Congress repealed it. The Circuit Court Act of 1802 restored circuit riding by Supreme Court justices and expanded the number of circuits. However, the legislation allowed the circuit court to be presided over by a single district judge. Such a change may seem slight, but it proved to be of great importance. Increasingly, the district judges began to assume responsibility for both district and circuit courts. In practice, then, original and appellate jurisdiction were both in the hands of the district judges.

 

The next major step in the development of the courts of appeals did not come until 1869, when Congress approved a measure that authorized the appointment of nine new circuit judges and reduced the Supreme Court justices' circuit court duty to one term every two years. Still, the High Court was flooded with cases because there were no limitations on the right of appeal to the Supreme Court.

 

The Courts of Appeals: 1891 to the Present

On March 3, 1891, the Evarts Act was signed into law, creating new courts known as circuit courts of appeals. These new tribunals were to hear most of the appeals from district courts. The old circuit courts, which had existed since 1789, also remained. The new circuit court of appeals was to consist of one circuit judge, one circuit court of appeals judge, one district judge, and a Supreme Court justice. Two judges constituted a quorum in these new courts.

 

Following passage of the Evarts Act, the federal judiciary had two trial tribunals: district courts and circuit courts. It also had two appellate tribunals: circuit courts of appeals and the Supreme Court. Most appeals of trial decisions were to go to the circuit court of appeals, although the act also allowed direct review in some instances by the Supreme Court. In short, creation of the circuit courts of appeals released the Supreme Court from many petty types of cases. Appeals could still be made, but the High Court would now have much greater control over its own workload. Much of its former caseload was thus shifted to the two lower levels of the federal judiciary.

 

The next step in the evolution of the courts of appeals came in 1911. In that year Congress passed legislation abolishing the old circuit courts, which had no appellate jurisdiction and frequently duplicated the functions of district courts.

 

Today the intermediate appellate tribunals are officially known as courts of appeals, but they continue to be referred to colloquially as circuit courts. There are now 12 regional courts of appeals, staffed by 179 authorized courts of appeals judges. The courts of appeals are responsible for reviewing cases appealed from federal district courts (and in some cases from administrative agencies) within the boundaries of the circuit. A specialized appellate court came into existence in 1982 when Congress established the Federal Circuit, a jurisdictional rather than a geographic circuit.

 

The Review Function of the Courts of Appeals

Most of the cases reviewed by the courts of appeals originate in the federal district courts. Litigants disappointed with the lower-court decision may appeal the case to the court of appeals of the circuit in which the federal district court is located. The appellate courts have also been given authority to review the decisions of certain administrative agencies.

 

Because the courts of appeals have no control over which cases are brought to them, they deal with both routine and highly important matters. At one end of the spectrum are frivolous appeals or claims that have no substance and little or no chance for success. At the other end of the spectrum are the cases that raise major questions of public policy and evoke strong disagreement. Decisions by the courts of appeals in such cases are likely to establish policy for society as a whole, not just for the specific litigants. Civil liberties, reapportionment, religion, and education cases provide good examples of the kinds of disputes that may affect all citizens.

 

There are two purposes of review in the courts of appeals. The first is error correction. Judges in the various circuits are called upon to monitor the performance of federal district courts and federal agencies and to supervise their application and interpretation of national and state laws. In doing so, the courts of appeals do not seek out new factual evidence, but instead examine the record of the lower court for errors. In the process of correcting errors the courts of appeals also settle disputes and enforce national law.

 

The second function is sorting out and developing those few cases worthy of Supreme Court review. The circuit judges tackle the legal issues earlier than the Supreme Court justices and may help shape what they consider review-worthy claims. Judicial scholars have found that appealed cases often differ in their second hearing from their first.

 

The Courts of Appeals as Policy Makers

The Supreme Court's role as a policy maker derives from the fact that it interprets the law, and the same holds true for the courts of appeals. The scope of the courts of appeals' policy-making role takes on added importance, given that they are the courts of last resort in the vast majority of cases.

 

As an illustration of the far-reaching impact of circuit court judges, consider the decision in a case involving the Fifth Circuit. For several years the University of Texas Law School (as well as many other law schools across the country) had been granting preference to African American and Mexican American applicants to increase the enrollment of minority students. This practice was challenged in a federal district court on the ground that it discriminated against white and nonpreferred minority applicants in violation of the Fourteenth Amendment. On March 18, 1996, a panel of Fifth Circuit judges ruled in Hopwood v. Texas that the Fourteenth Amendment does not permit the school to discriminate in this way and that the law school may not use race as a factor in law school admissions. The U.S. Supreme Court denied a petition for a writ of certiorari in the case, thus leaving it the law of the land in Texas, Louisiana, and Mississippi, the states comprising the Fifth Circuit. Although it may technically be true that only schools in the Fifth Circuit are affected by the ruling, an editorial in The National Law Journal indicates otherwise, noting that while some "might argue that Hopwood's impact is limited to three states in the South..., the truth is that across the country law school (and other) deans, fearing similar litigation, are scrambling to come up with an alternative to affirmative action."

 

The Courts of Appeals at Work

The courts of appeals do not have the same degree of discretion as the Supreme Court to decide whether to accept a case. Still, circuit judges have developed methods for using their time as efficiently as possible.

 

Screening. During the screening stage the judges decide whether to give an appeal a full review or to dispose of it in some other way. The docket may be reduced to some extent by consolidating similar claims into single cases, a process that also results in a uniform decision. In deciding which cases can be disposed of without oral argument, the courts of appeals increasingly rely on law clerks or staff attorneys. These court personnel read petitions and briefs and then submit recommendations to the judges. As a result, many cases are disposed of without reaching the oral argument stage.

 

Three-Judge Panels. Those cases given the full treatment are normally considered by panels of three judges rather than by all the judges in the circuit. This means that several cases can be heard at the same time by different three-judge panels, often sitting in different cities throughout the circuit.

 

En Banc Proceedings. Occasionally, different three-judge panels within the same circuit may reach conflicting decisions in similar cases. To resolve such conflicts and to promote circuit unanimity, federal statutes provide for an "en banc" (Old French for high seat)procedure in which all the circuit's judges sit together on a panel and decide a case. The exception to this general rule occurs in the large Ninth Circuit where assembling all the judges becomes too cumbersome. There, en banc panels normally consist of 11 judges. The en banc procedure may also be used when the case concerns an issue of extraordinary importance.

 

Oral Argument. Cases that have survived the screening process and have not been settled by the litigants are scheduled for oral argument. Attorneys for each side are given a short amount of time (as little as 10 minutes) to discuss the points made in their written briefs and to answer questions from the judges.

 

The Decision. Following the oral argument, the judges may confer briefly and, if they are in agreement, may announce their decision immediately. Otherwise, a decision will be announced only after the judges confer at greater length. Following the conference, some decisions will be announced with a brief order or per curiam opinion of the court. A small portion of decisions will be accompanied by a longer, signed opinion and perhaps even dissenting and concurring opinions. Recent years have seen a general decrease in the number of published opinions, although circuits vary in their practices.

 

U.S. DISTRICT COURTS

The U.S. district courts represent the basic point of input for the federal judicial system. Although some cases are later taken to a court of appeals or perhaps even to the Supreme Court, most federal cases never move beyond the U.S. trial courts. In terms of sheer numbers of cases handled, the district courts are the workhorses of the federal judiciary. However, their importance extends beyond simply disposing of a large number of cases.

 

The First District Courts

Congress made the decision to create a national network of federal trial courts when it passed the Judiciary Act of 1789. Section 2 of the act established 13 district courts by making each of the 11 states then in the Union a district, and by making the parts of Massachusetts and Virginia that were to become Maine and Kentucky into separate districts. That organizational scheme established the practice, which still exists, of honoring state boundary lines in drawing districts.

 

The First District Judges

Each federal district court was to be presided over by a single judge who resided in the district. As soon as this became known, President Washington began receiving letters from individuals desiring appointment to the various judgeships. Many asked members of Congress or Vice President John Adams to recommend them to President Washington. Personal applications were not necessarily successful and were not the only way in which names came to the president's attention. Harry Innes, for example, was not an applicant for the Kentucky judgeship but received it after being recommended by a member of Congress from his state.

 

As new states came into the Union, additional district courts were created. The additions, along with resignations, gave Washington an opportunity to offer judgeships to 33 people. All of the judges he appointed were members of the bar, and all but seven had state or local legal experience as judges, prosecutors, or attorneys general. Presidents have continued to appoint lawyers with public service backgrounds to the federal bench.

 

Present Organization of the District Courts

As the country grew, new district courts were created. Eventually, Congress began to divide some states into more than one district. California, New York, and Texas have the most, with four each. Other than consistently honoring state lines, the organization of district constituencies appears to follow no rational plan. Size and population vary widely from district to district. Over the years, a court was added for the District of Columbia, and several territories have been served by district courts. There are now U.S. district courts serving the 50 states, the District of Columbia, Guam, Puerto Rico, the Virgin Islands, and the Northern Mariana Islands.

 

The original district courts were each assigned one judge. With the growth in population and litigation, Congress has periodically had to add judges to most of the districts. The Federal Judgeship Act of 1990 created 74 new district judgeships, bringing the current total to 649. Today all districts have more than one judge; the Southern District of New York, which includes Manhattan and the Bronx, currently has 28 judges and is thus the largest. Because each federal district court is normally presided over by a single judge, several trials may be in session within the district at any given time.

 

The District Courts as Trial Courts

Congress established the district courts as the trial courts of the federal judicial system and gave them original jurisdiction over virtually all cases. They are the only federal courts in which attorneys examine and cross-examine witnesses. The factual record is thus established at this level. Subsequent appeals of the trial court decision focus on correcting errors rather than on reconstructing the facts.

 

The task of determining the facts in a case often falls to a jury, a group of citizens from the community who serve as impartial arbiters of the facts and apply the law to the facts. The Constitution guarantees the right to a jury trial in criminal cases in the Sixth Amendment and the same right in civil cases in the Seventh Amendment. The right can be waived, however, in which case the judge becomes the arbiter both of questions of fact and of matters of law. Such trials are referred to as bench trials.

 

Two types of juries are associated with federal district courts. The grand jury is a group of men and women convened to determine whether there is probable cause to believe that a person has committed the federal crime of which he or she has been accused. Grand jurors meet periodically to hear charges brought by the U.S. attorney. Petit jurors are chosen at random from the community to hear evidence and determine whether a defendant in a civil trial has liability or whether a defendant in a criminal trial is guilty or not guilty. Federal rules call for 12 jurors in criminal cases but permit fewer in civil cases. The federal district courts generally use six-person juries in civil cases.

 

Trial courts are viewed as engaging primarily in norm enforcement, whereas appellate courts are seen as having greater opportunity to make policy. Norm enforcement is closely tied to the administration of justice, because all nations develop standards considered essential to a just and orderly society. Societal norms are embodied in statutes, administrative regulations, prior court decisions, and community traditions. Criminal statutes, for example, incorporate concepts of acceptable and unacceptable behavior into law. A judge deciding a case concerning an alleged violation of that law is practicing norm enforcement. Because cases of this type rarely allow the judge to escape the strict restraints of legal and procedural requirements, he or she has little chance to make new law or develop new policy. In civil cases, too, judges are often confined to norm enforcement, because such litigation generally arises from a private dispute whose outcome is of interest only to the parties in the suit.

 

The district courts also play a policy-making role, however. As Americans have become more litigation-conscious, disputes that were once resolved informally are now more likely to be decided in a court of law. The courts find themselves increasingly involved in domains once considered private. What does this mean for the federal district courts? According to one study, "These new areas of judicial involvement tend to be relatively free of clear, precise appellate court and legislative guidelines; and as a consequence the opportunity for trial court jurists to write on a clean slate, that is, to make policy, is formidable."

 

CONSTITUTIONAL COURTS AND LEGISLATIVE COURTS

The Judiciary Act of 1789 established the three levels of the federal court system in existence today. Periodically, however, Congress has exercised its power, based on Article III and Article I of the Constitution, to create other federal courts. Courts established under Article III are known as constitutional courts and those created under Article I are called legislative courts. The Supreme Court, courts of appeals, and federal district courts are constitutional courts. Legislative courts include the U.S. Court of Military Appeals, the United States Tax Court, and the Court of Veterans Appeals.

 

Legislative courts, unlike their constitutional counterparts, often have administrative and quasi-legislative as well as judicial duties. Another difference is that legislative courts are often created for the express purpose of helping to administer a specific congressional statute. Constitutional courts, on the other hand, are tribunals established to handle litigation.

 

Finally, the constitutional and legislative courts vary in their degree of independence from the other two branches of government. Article III (constitutional court) judges serve during a period of good behavior, or what amounts to life tenure. Because Article I (legislative court) judges have no constitutional guarantee of good-behavior tenure, Congress may set specific terms of office for them. In sum, the constitutional courts have a greater degree of independence from the other two branches of government than the legislative courts.

 

ADMINISTRATIVE AND STAFF SUPPORT IN 

THE FEDERAL JUDICIARY

Although judges are the most visible actors in the judicial system, a large supporting cast is also at work. Their efforts are necessary to perform the tasks for which judges are unskilled or unsuited, or for which they simply do not have adequate time. Some members of the support team, such as law clerks, may work specifically for one judge. Others – for example, U.S. magistrate judges – are assigned to a particular court. Still others may be employees of an agency, such as the Administrative Office of the United States Courts, that serves the entire judicial system.

 

U.S. Magistrate Judges

In an effort to help federal district judges deal with increased workloads, Congress in 1968 created a system of magistrate judges that responds to each district court's specific needs and circumstances. Magistrate judges are appointed by the judges of the district court for eight-year terms of office, although they can be removed before the expiration of the term for "good cause." Within guidelines set by the Congress, the judges in each district court establish the duties and responsibilities of their magistrate judges. The legislation permits a magistrate judge, with the consent of the involved parties, to conduct all proceedings in a jury or nonjury civil matter and enter a judgment in the case and to conduct a trial of persons accused of misdemeanors (less serious offenses than felonies) committed within the district, provided the defendants consent. Because the decision to delegate responsibilities to a magistrate judge is still made by the district judge, however, a magistrate judge's participation in the processing of cases may be more narrow than that permitted by statute.

 

Law Clerks

The first use of law clerks by an American judge is generally traced to Horace Gray of Massachusetts. In the summer of 1875, while serving as chief justice of the Massachusetts Supreme Court, he employed, at his own expense, a highly ranked new graduate of the Harvard Law School. Each year, he employed a new clerk from Harvard. When Gray was appointed to the U.S. Supreme Court in 1882, he brought a law clerk with him to the nation's highest court.

 

Justice Gray's successor on the High Court was Oliver Wendell Holmes, who also adopted the practice of annually hiring honor graduates of Harvard Law School as his clerks. When William Howard Taft, a former law professor at Yale, became chief justice, he secured a new law clerk annually from the dean of the Yale Law School. Harlan Fiske Stone, former dean of the Columbia Law School, joined the Court in 1925 and made it his practice to hire a Columbia graduate each year.

 

Since these early beginnings there has been a steady growth in the use of law clerks by all federal courts. More than 2,000 law clerks now work for federal judges, and more than 600 serve bankruptcy judges and U.S. magistrate judges. In addition to the law clerks hired by individual judges, all appellate courts and some district courts hire staff law clerks who serve the entire court.

 

A law clerk's duties vary according to the preferences of the judge for whom he or she works. They also vary according to the type of court. Law clerks for federal district judges often serve primarily as research assistants. They spend a good deal of time examining the various motions filed in civil and criminal cases. They review each motion, noting the issues and the positions of the parties involved, then research important points raised in the motions and prepare written memorandums for the judges. Because their work is devoted to the earliest stages of the litigation process, they may have a substantial amount of contact with attorneys and witnesses. Law clerks at this level may be involved in the initial drafting of opinions.

 

At the appellate level, the law clerk becomes involved in a case first by researching the issues of law and fact presented by an appeal. The courts of appeals do not have the same discretion to accept or reject a case that the Supreme Court has, and they use certain screening devices to differentiate between cases that can be handled quickly and those that require more time and effort. Law clerks are an integral part of this screening process.

 

A number of cases are scheduled for oral argument, and the clerk may be called upon to assist the judge in preparing for it. Intensive analysis of the record by judges prior to oral argument is not always possible. They seldom have time to do more than scan pertinent portions of the record called to their attention by law clerks.

 

Once a decision has been reached by an appellate court, the law clerk frequently participates in writing the order that accompanies the decision. The clerk's participation generally consists of drafting a preliminary opinion or order pursuant to the judge's directions. A law clerk may also be asked to edit or check citations(references to a statute, precedent-setting case, or legal textbook, in a brief or argument in court) in an opinion written by the judge. The work of the law clerk for a Supreme Court justice roughly parallels that of a clerk in the other appellate courts. Clerks play an indispensable role in helping justices decide which cases should be heard. At the suggestion of Justice Lewis F. Powell, Jr., in 1972, a majority of the Court's members began to participate in a "certpool"; the justices pool their clerks, divide up all filings, and circulate a single clerk's certiorari memo to all those participating in the pool. The memo summarizes the facts of the case, the questions of law presented, and the recommended course of action – that is, whether the case should be granted a full hearing, denied, or dismissed. Once the justices have voted to hear a case, the law clerks, like their counterparts in the courts of appeals, prepare bench memorandums that the justices may use during oral argument. Finally, law clerks for Supreme Court justices, like those who serve courts of appeals judges, help to draft opinions.

 

Administrative Office of the U.S. Courts

The administration of the federal judicial system as a whole is managed by the Administrative Office of the U.S. Courts. Since its creation in 1939 it has handled everything from distributing supplies to negotiating with other government agencies for court accommodations in federal buildings to maintaining judicial personnel records and collecting data on cases in the federal courts.

 

The Administrative Office also serves the Judicial Conference of the United States, the central administrative policy-making organization of the federal judicial system. In addition to providing statistical information to the conference's many committees, the Administrative Office acts as a reception center and clearinghouse for information and proposals directed to the Judicial Conference. The office also acts as liaison for both the federal judicial system and the Judicial Conference, serving as advocate for the judiciary in its dealings with Congress, the executive branch, professional groups, and the general public. Especially important is its representative role before Congress where, along with concerned judges, it presents the judiciary's budget proposals, requests for additional judgeships, suggestions for changes in court rules, and other key measures.

 

The Federal Judicial Center

The Federal Judicial Center, created in 1967, is the federal courts' agency for continuing education and research. Its duties fall generally into three categories: conducting research on the federal courts, making recommendations to improve the administration and management of the federal courts, and developing educational and training programs for personnel of the judicial branch.

 

Since its inception, judges have benefited from orientation sessions and other educational programs put on by the Federal Judicial Center. In recent years, magistrate judges, bankruptcy judges, and administrative personnel have also been the recipients of educational programs. The Federal Judicial Center's extensive use of videos and satellite technology allows it to reach large numbers of people.

 

FEDERAL COURT WORKLOAD

The workload of the courts is heavy for all three levels of the federal judiciary – U.S. district courts, courts of appeals, and the Supreme Court.

 

For fiscal year 2002 slightly more than 340,000 cases were commenced in the federal district courts. Criminal filings alone have risen 43 percent since 1993.

 

In 1995, 50,072 appeals were filed in one of the regional circuit courts. This figure increased every year, to a high of 60,847 appeals in 2003. However, the number of appeals terminated by the courts of appeals has also been steadily increasing, from 49,805 in 1995 to 56,586 in 2002.

 

The overall caseload of the Supreme Court is large by historical standards; there were 8,255 cases on the docket for the 2002 term. The Supreme Court, however, has discretion to decide which cases merit its full attention. As a result, the number of cases argued before the Court has declined rather dramatically over the years. In the 2002 term only 84 cases were argued and 79 were disposed of in 71 signed opinions.

 

[Chapters 1 through 8 are adapted with permission from the book Judicial Process in America, 5th edition, by Robert A. Carp and Ronald Stidham, published by Congressional Quarterly, Inc. Copyright © 2001 Congressional Quarterly Inc. All rights reserved.]