Associate Justice Sarah Parker of the Supreme Court of North Carolina examines a map during a court session. (© AP Images)

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

 

In setting the jurisdictions of courts, Congress and the U.S. Constitution – and their state counterparts – mandate the types of cases each court may hear. This chapter considers how Congress, in particular, can influence judicial behavior by redefining the types of cases judges may hear. It also discusses judicial self-restraint, examining 10 principles, derived from legal tradition and constitutional and statutory law, that govern a judge's decision about whether to review a case.

 

FEDERAL COURTS

The federal court system is divided into three separate levels: the trial courts, the appellate tribunals, and the U.S. Supreme Court.

 

U.S. District Courts

Congress has set forth the jurisdiction of the federal district courts. These tribunals have original jurisdiction in federal criminal and civil cases; that is, by law, the cases must be first heard in these courts, no matter who the parties are or how significant the issues.

 

Criminal Cases. These cases commence when the local U.S. attorneys have reason to believe that a violation of the U.S. Penal Code has occurred. After obtaining an indictment from a federal grand jury, the U.S. attorney files charges against the accused in the district court in which he or she serves. Criminal activity as defined by Congress covers a wide range of behavior, including interstate theft of an automobile, illegal importation of narcotics, assassination of a president, conspiracy to deprive persons of their civil rights, and even the killing of a migratory bird out of season.

 

After charges are filed against an accused, and if no plea bargain has been made, a trial is conducted by a U.S. district judge. In court the defendant enjoys all the privileges and immunities granted in the Bill of Rights (such as the right to a speedy and public trial) or by congressional legislation or Supreme Court rulings (for instance, a 12-person jury must render a unanimous verdict). Defendants may waive the right to a trial by a jury of their peers. A defendant who is found not guilty of the crime is set free and may never be tried again for the same offense (the Fifth Amendment's protection against double jeopardy). If the accused is found guilty, the district judge determines the appropriate sentence within a range set by Congress. The length of a sentence cannot be appealed so long as it is in the range prescribed. A verdict of not guilty may not be appealed by the government, but convicted defendants may appeal if they believe that the judge or jury made an improper legal determination.

 

Civil Cases. A majority of the district court caseload is civil in nature; that is, suits between private parties or between the U.S. government, acting in a nonprosecutorial capacity, and a private party. Civil cases that originate in the U.S. district courts may be placed in several categories. The first is litigation concerning the interpretation or application of the Constitution, acts of Congress, or U.S. treaties. Examples of cases in this category include the following: a petitioner claims that one of his or her federally protected civil rights has been violated, a litigant alleges that he or she is being harmed by a congressional statute that is unconstitutional, and a plaintiff argues that he or she is suffering injury from a treaty that is improperly affecting him. The key point is that a federal question must be raised in order for the U.S. trial courts to have jurisdiction.

 

Traditionally, some minimal dollar amounts had to be in controversy in some types of cases before the trial courts would hear them, but such amounts have been waived if the case falls into one of several general categories. For example, an alleged violation of a civil rights law, such as the Voting Rights Act of 1965, must be heard by the federal rather than the state judiciary. Other types of cases in this category are patent and copyright claims, passport and naturalization proceedings, admiralty and maritime disputes, and violations of the U.S. postal laws.

 

Another broad category of cases over which the U.S. trial courts exercise general original jurisdiction includes what are known as diversity of citizenship disputes. These are disputes between parties from different states or between an American citizen and a foreign country or citizen.

 

Federal district courts also have jurisdiction over petitions from convicted prisoners who contend that their incarceration (or perhaps their denial of parole) is in violation of their federally protected rights. In the vast majority of these cases prisoners ask for a writ of "habeas corpus" (Latin for "you should have the body"), an order issued by a judge to determine whether a person has been lawfully imprisoned or detained. The judge would demand that the prison authorities either justify the detention or release the petitioner. Prisoners convicted in a state court must argue that a federally protected right was violated – for example, the right to be represented by counsel at trial. Otherwise, the federal courts would have no jurisdiction. Federal prisoners have a somewhat wider range for their appeals since all their rights and options are within the scope of the U.S. Constitution.

 

Finally, the district courts have the authority to hear any other cases that Congress may validly prescribe by law.

 

U.S. Courts of Appeals

The U.S. appellate courts have no original jurisdiction whatsoever; every case or controversy that comes to one of these intermediate level panels has been first argued in some other forum. These tribunals, like the district courts, are the creations of Congress, and their structure and functions have varied considerably over time.

 

Basically, Congress has granted the circuit courts appellate jurisdiction over two general categories of cases. The first of these are ordinary civil and criminal appeals from the federal trial courts. In criminal cases the appellant is the defendant because the government is not free to appeal a verdict of not guilty. In civil cases the party that lost in the trial court is usually the appellant, but the winning party may appeal if it is not satisfied with the lower-court judgment. The second broad category of appellate jurisdiction includes appeals from certain federal administrative agencies and departments and also from independent regulatory commissions, such as the Securities and Exchange Commission and the National Labor Relations Board.

 

U.S. Supreme Court

The U.S. Supreme Court is the only federal court mentioned by name in the Constitution, which spells out the general contours of the High Court's jurisdiction. Although the Supreme Court is usually thought of as an appellate tribunal, it does have some general original jurisdiction. Probably the most important subject of such jurisdiction is a suit between two or more states.

 

The High Court shares original jurisdiction (with the U.S. district courts) in certain cases brought by or against foreign ambassadors or consuls, in cases between the United States and a state, and in cases commenced by a state against citizens of another state or another country. In situations such as these, where jurisdiction is shared, the courts are said to have concurrent jurisdiction. Cases over which the Supreme Court has original jurisdiction are often important, but they do not constitute a sizable proportion of the overall caseload. In recent years less than 1 percent of the High Court's docket consisted of cases heard on original jurisdiction.

 

The U.S. Constitution declares that the Supreme Court "shall have appellate Jurisdiction...under such Regulations as the Congress shall make." Over the years Congress has passed much legislation setting forth the "Regulations" determining which cases may appear before the nation's most august judicial body. Appeals may reach the Supreme Court through two main avenues. First, there may be appeals from all lower federal constitutional and territorial courts and also from most, but not all, federal legislative courts. Second, the Supreme Court may hear appeals from the highest court in a state – as long as there is a substantial federal question.

 

Most of the High Court's docket consists of cases in which it has agreed to issue a writ of certiorari – a discretionary action. Such a writ (which must be supported by at least four justices) is an order from the Supreme Court to a lower court demanding that it send up a complete record of a case so that the Supreme Court can review it. Historically, the Supreme Court has agreed to grant the petition for a writ of certiorari in only a tiny proportion of cases – usually less than 10 percent of the time, and in recent years the number has been closer to 1 percent.

 

Another method by which the Supreme Court exercises its appellate jurisdiction is certification. This procedure is followed when one of the appeals courts asks the Supreme Court for instructions regarding a question of law. The justices may choose to give the appellate judges binding instructions, or they may ask that the entire record be forwarded to the Supreme Court for review and final judgment.

 

JURISDICTION AND POLICY MAKING OF STATE COURTS

The jurisdictions of the 50 separate state court systems in the United States are established in virtually the same manner as those within the national court system. Each state has a constitution that sets forth the authority and decision-making powers of its trial and appellate judges. Likewise, each state legislature passes laws that further detail the specific powers and prerogatives of judges and the rights and obligations of those who bring suit in the state courts. Because no two state constitutions or legislative bodies are alike, the jurisdictions of individual state courts vary from one state to another.

 

State courts are extremely important in terms of policy making in the United States. Well over 99 percent of the judicial workload in the United States consists of state, not federal, cases, and 95 percent of all judges in the United States work at the state level. Moreover, the decisions of state jurists frequently have a great impact on public policy. For example, during the 1970s a number of suits were brought into federal court challenging the constitutionality of a state's spending vastly unequal sums on the education of its schoolchildren. (This occurred because poorer school districts could not raise the same amount of money as could wealthy school districts.) The litigants claimed that children in the poorer districts were victims of unlawful discrimination in violation of their equal protection rights under the U.S. Constitution. The Supreme Court said they were not, however, in a five-to-four decision in San Antonio Independent School District v. Rodriguez (1973). But the matter did not end there. Litigation was instituted in many states arguing that unequal educational opportunities were in violation of various clauses in the state constitutions. Since Rodriguez such suits have been brought 28 times in 24 states. In 14 of these cases, state supreme courts invalidated their state's method of financing education, thus requiring the reallocation of billions of dollars.

 

JURISDICTION AND LEGISLATIVE POLITICS

Some judges and judicial scholars argue that the U.S. Constitution and the respective state documents confer a certain inherent jurisdiction upon the judiciaries in some key areas, independent of the legislative will. Nevertheless, the jurisdictional boundaries of American courts are also a product of legislative judgments – determinations often influenced by politics.

 

Congress may advance a particular cause by giving courts the authority to hear cases in a public policy realm that previously had been forbidden territory for the judiciary. For example, when Congress passed the Civil Rights Act of 1968, it gave judges the authority to penalize individuals who interfere with "any person because of his race, color, religion or national origin and because he is or has been...traveling in ...interstate commerce." Prior to 1968 the courts had no jurisdiction over incidents that stemmed from interference by one person with another's right to travel. Likewise, Congress may discourage a particular social movement by passing legislation to make it virtually impossible for its advocates to have success in the courts.

 

The jurisdictions of state courts, like their federal counterparts, also are very much governed by – and the political product of – the will of the state legislatures.

 

JUDICIAL SELF-RESTRAINT

The activities that judges are forbidden to engage in, or at least discouraged from engaging in, deal not so much with jurisdiction as with justiciability – the question of whether judges in the system ought to hear or refrain from hearing certain types of disputes. Ten principles of judicial self-restraint, discussed below, serve to check and contain the power of American judges. These maxims originate from a variety of sources – the U.S. Constitution and state constitutions, acts of Congress and of state legislatures, and the common law. Some apply more to appellate courts than to trial courts; most apply to federal and state judicial systems.

 

Federal also hear appeals on under the Endangered Species Act, which protects, among others, these Mexican spotted owls. (© AP Images)

A Definite Controversy Must Exist

The U.S. Constitution states that "the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made...under their Authority" (Article III, Section 2). The key word here is cases. Since 1789 the federal courts have chosen to interpret the term in its most literal sense: There must be an actual controversy between legitimate adversaries who have met all the technical legal standards to institute a suit. The dispute must concern the protection of a meaningful, nontrivial right or the prevention or redress of a wrong that directly affects the parties to the suit. There are three corollaries to this general principle.

 

The first is that the federal courts do not render advisory opinions, rulings about situations that are hypothetical or that have not caused an actual clash between adversaries. A dispute must be real and current before a court will agree to accept it for adjudication.

 

A second corollary is that the parties to the suit must have proper standing. This notion deals with the matter of who may bring litigation to court. The person bringing suit must have suffered (or be immediately about to suffer) a direct and significant injury. As a general rule, a litigant cannot bring a claim on behalf of others (except for parents of minor children or in special types of suits called class actions). In addition, the alleged injury must be personalized and immediate – not part of some generalized complaint.

 

The third corollary is that courts ordinarily will not hear a case that has become moot – when the basic facts or the status of the parties have significantly changed between the time when the suit was first filed and when it comes before the judge(s). The death of a litigant or the fact that the litigants have ceased to be warring parties would render a case moot in most tribunals. However, sometimes judges may decide that it is necessary to hear a case, even though the status of the facts and parties would seem to have radically altered. Examples include cases where someone has challenged a state's refusal to permit an abortion or to permit the life-support system of a terminally ill person to be switched off. (In such cases, by the time the suit reaches an appellate court, the woman may already have given birth or the moribund person may have died.) In these cases judges have believed that the issues were so important that they needed to be addressed by the court. To declare such cases moot would, practically speaking, prevent them from ever being heard in time by an appellate body.

 

Although federal judges do not rule on abstract, hypothetical issues, many state courts are permitted to do so in some form or other. Federal legislative courts may give advisory opinions as well. Also, American judges are empowered to render declaratory judgments, which define the rights of various parties under a statute, a will, or a contract. The judgments do not entail any type of coercive relief. The federal courts were given the authority to act in this capacity in the Federal Declaratory Judgment Act of 1934, and about three-fourths of the states grant their courts this power. Although a difference exists between an abstract dispute that the federal courts must avoid and a situation where a declaratory judgment is in order, in the real world the line between the two is often a difficult one for jurists to draw.

 

A Plea Must Be Specific

Another constraint upon the federal judiciary is that judges will hear no case on the merits unless the petitioner is first able to cite a specific part of the Constitution as the basis of the plea. For example, the First Amendment forbids government from making a law "respecting an establishment of religion." In 1989 the state of New York created a special school district solely for the benefit of the Satmar Hasids, a group of Hasidic Jews with East European roots that strongly resists assimilation into modern society. Most of the children attended parochial schools in the Village of Kiryas Joel, but these private schools weren't able to accommodate retarded and disabled students, and the Satmars claimed that such children within their community would be traumatized if forced to attend a public school. Responding to this situation, the state legislature created a special district encompassing a single school that served only handicapped children from the Hasidic Jewish community. This arrangement was challenged by the association representing New York state's school boards. In June 1994 the U.S. Supreme Court ruled that the creation of the one-school district effectively delegated political power to the orthodox Jewish group and therefore violated the First Amendment's ban on governmental "establishment of religion." Whether or not everyone agrees that the New York law was constitutional, few, if any, would doubt that the school board association met the specific criteria for securing judicial review: The Constitution clearly forbids the government from delegating political power to a specific religious entity. The government here readily acknowledged that it had passed a law for the unique benefit of a singular religious community.

 

However, if one went into court and contended that a particular law or official action "violated the spirit of the Bill of Rights" or "offended the values of the Founders," a judge surely would dismiss the proceeding. For if judges were free to give concrete, substantive meaning to vague generalities such as these, there would be little check on what they could do. In the real world this principle is not as simple and clear-cut as it sounds, because the Constitution contains many clauses that are open to a wide variety of interpretations, giving federal judges sufficient room to maneuver and make policy.

 

Beneficiaries May Not Sue

A third aspect of judicial self-restraint is that a petitioner who has been the beneficiary of a law or an official action may not subsequently challenge that law. For example, suppose that a farmer has long been a member of a program under which he agreed to take part of his land out of production and periodically was paid a subsidy by the federal government. After years as a participant, the farmer learns that a neighbor is also drawing regular payments for letting all of his farmland lie fallow. The idea that the neighbor is getting something for nothing offends the farmer, and he questions the program's constitutionality. The farmer challenges the legality of the program in the local federal district court. As soon as it is brought to the judge's attention that the farmer had himself been a member of the program and had gained financially from it, the suit is dismissed: One may not benefit from a particular governmental endeavor or official action and subsequently attack it in court.

 

Appellate Courts Rule on Legal – Not Factual – Questions

A working proposition of state and federal appellate court practice is that these courts will generally not hear cases if the grounds for appeal are that the trial judge or jury wrongly amassed and identified the basic factual elements of the case. It is not that trial judges and juries always do a perfect job of making factual determinations. Rather, there is the belief that they are closer to the actual parties and physical evidence of the case, and, therefore, they will do a much better job of making factual assessments than would an appellate body reading a transcript of the case some months or years after the trial. However, legal matters – which laws to apply to the facts of a case or how to assess the facts in light of the prevailing law – are appropriate for appellate review.

 

The Supreme Court Is Not Bound (Technically) by Precedents

If the High Court is free to overturn or circumvent past and supposedly controlling precedents when it decides a case, this might appear to be an argument for judicial activism – not restraint. However, this practice is one of the principles of self-restraint. If the Supreme Court were inescapably bound by the dictates of its prior rulings, it would have very little flexibility. By occasionally allowing itself the freedom to overrule a past decision or to ignore a precedent that would seem to be controlling, the Supreme Court establishes a corner of safety to which it can retreat if need be. When wisdom dictates that the Court change direction or at least keep an open mind, this principle of self-restraint is put to use.

 

Other Remedies Must Be Exhausted

Another principle of self-restraint often frustrates the anxious litigant but is essential to the orderly administration of justice: Courts in the United States will not accept a case until all other remedies, legal and administrative, have been exhausted. In its simplest form this doctrine means that one must work up the ladder with one's legal petitions. Federal cases must first be heard by the U.S. trial courts, then reviewed by one of the appellate tribunals, and finally heard by the U.S. Supreme Court. This orderly procedure of events must occur despite the importance of the case or of the petitioners who filed it. In certain circumstances, however, the appellate process can be shortened.

 

Exhaustion of remedies refers to possible administrative relief as well as to adherence to the principle of a three-tiered judicial hierarchy. Such relief might be in the form of an appeal to an administrative officer, a hearing before a board or committee, or formal consideration of a matter by a legislative body.

 

Courts Do Not Decide "Political Questions"

To U.S. judges, the executive and the legislative branches of government are political in that they are elected by the people for the purpose of making public policy. The judiciary, in contrast, was not designed by the Founders to be an instrument manifesting the popular will and is therefore not political. According to this line of reasoning, then, a political question is one that ought properly to be resolved by one of the other two branches of government.

 

For example, when the state of Oregon gave its citizens the right to vote on popular statewide referendums and initiatives around 1900, the Pacific States Telephone and Telegraph Company objected. (The company feared that voters would bypass the more business-oriented legislature and pass laws restricting its rates and profits.) The company claimed that Article IV, Section 4, of the Constitution guarantees to each state "a Republican Form of Government" – a term that supposedly means that laws are to be made only by the elected representatives of the people, not by the citizens directly. The High Court refused to rule on the merits of the case, declaring the issue to be a political question. The Court reasoned that since Article IV primarily prescribes the duties of Congress, it follows that the Founders wanted Congress – not the courts – to oversee the forms of government in the several states.

 

In recent decades an important political versus nonpolitical dispute has concerned the matter of reapportionment of legislative districts. Prior to 1962, a majority on the Supreme Court refused to rule on the constitutionality of legislative districts with unequal populations, saying that such matters were "nonjusticiable" and that the Court dared not enter what Justice Felix Frankfurter called "the political thicket." According to traditional Supreme Court thinking, the Founders wanted legislatures to redistrict themselves – perhaps with input from the electorate. However, with the Supreme Court's decision in Baker v. Carr (1962), the majority reversed that thinking. Since then the Court has held in scores of cases that the equal-protection clause of the Fourteenth Amendment requires legislative districts to be of equal population size and, furthermore, that the courts should see to it that this mandate is carried out.

 

The Burden of Proof Is on the Petitioner

The nation's jurists generally agree that an individual who would challenge the constitutionality of a statute bears the burden of proof. Thus, if someone were to attack a particular statute, he or she would have to do more than demonstrate that it was "questionable or of doubtful constitutionality"; the petitioner would have to persuade the court that the evidence against the law was clear-cut and overwhelming.

 

The only exception to this burden of proof principle is in the realm of civil rights and liberties. Some jurists who are strong civil libertarians have long contended that when government attempts to restrict basic human freedoms the burden of proof should shift to the government. And in several specific areas of civil rights jurisprudence that philosophy now prevails. For example, the U.S. Supreme Court has ruled in a variety of cases that laws that treat persons differently according to their race or gender are automatically subject to "special scrutiny." This means that the burden of proof shifts to the government to demonstrate a compelling or overriding need to differentiate persons according to their ethnic origins or sex. For instance, the government has long argued (successfully) that some major restrictions can be placed on women in the armed forces that prevent them from being assigned to full combat duty.

 

Laws Are Overturned on the Narrowest Grounds Only

Sometimes during a trial a judge clearly sees that the strictures of the Constitution have been offended by a legislative or executive act. Even here, however, a jurist may proceed with caution. First, a judge may have the option of invalidating an official action on what is called statutory, instead of constitutional, grounds. Statutory invalidation means that a judge overturns an official's action because the official acted beyond the authority delegated to him or her by the law. Such a ruling has the function of saving the law itself while still nullifying the official's misdeed. Second, judges may, if possible, invalidate only that portion of a law they find constitutionally defective instead of overturning the entire statute.

 

No Rulings Are Made on the "Wisdom" of Legislation

If followed strictly, this principle means that the only basis for declaring a law or an official action unconstitutional is that it literally violates the Constitution. Statutes do not offend the Constitution merely because they are unfair, are fiscally wasteful, or constitute bad public policy. If taken truly to heart, this means that judges and justices are not free to invoke their own personal notions of right and wrong or of good and bad public policy when they examine the constitutionality of legislation.

 

Another spinoff of this principle is that a law may be passed that all agree is good and wise but that is nevertheless unconstitutional; conversely, a statute may legalize the commission of an official deed that all know to be bad and dangerous but that still does not offend the Constitution.

 

The principle of not ruling on the "wisdom" of a law is difficult to follow in the real world. This is so because the Constitution, a rather brief document, is silent on many areas of public life and contains a number of phrases and admonitions that are open to a variety of interpretations. For instance, the Constitution says that Congress may regulate interstate commerce. But what exactly is commerce, and how extensive does it have to be before it is of an "interstate" character? As human beings, judges have differed in the way they have responded to this question. The Constitution guarantees a person accused of a crime the right to a defense attorney. But does this right continue if one appeals a guilty verdict and, if so, for how many appeals? Strict constructionists and loose constructionists have responded differently to these queries.

 

In all, despite the inevitable intrusion of judges' personal values into their interpretation of many portions of the Constitution, virtually every jurist subscribes to the general principle that laws can be invalidated only if they offend the Constitution – not the personal preferences of the judges.

 

[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.]