American Government and the Constitution Lecture Five

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American Government and the Constitution Lectures: 1-2-3-4-5-6-7-8-9-10-11-12

We have discussed the legislative branch (Congress, which is authorized by Article I of the Constitution, and the executive branch (the presidency, which is authorized by Article II). In this lecture we discuss the third branch of government: the judiciary.

Alexander Hamilton, who was not an attorney, described the judiciary as "least dangerous" branch in Federalist No. 78:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

Alexander Hamilton was one of the greatest Founders of the United States, and he was right about many things, but he was flat-out wrong in describing the federal judiciary as being the least dangerous among the three branches. His description in the above quote about the differences between the three branches of government is insightful except for his claim that the judiciary is the "least dangerous" branch, and his quote is often cited for how it has been proven wrong since then. But recall that Hamilton wrote the Federalist Papers in order to reassure people that the Constitution did not give too much power to the new federal government, so his overstatement is not surprising.

Most of the problems today, from abortion to the ban on prayer in public schools to same-sex marriage, are based on decisions by the judiciary, not by the legislative or executive branches.

The Federal Judiciary

The Constitution creates one U.S. Supreme Court, and allows Congress to establish as many inferior federal courts as Congress wants. Where would we look to find this in the Constitution? In Article III, which establishes the judicial branch. Article III, Section 1, begins as follows:

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.

It is Congress, therefore, which decides the structure of the federal court system below the U.S. Supreme Court, and it is Congress which decides the "jurisdiction" of federal courts, meaning which types of cases federal courts will accept.

Federal courts, like the other branches of the federal government, are limited in their power. Most types of lawsuits cannot be filed in federal court. If you want to sue your neighbor for playing music too loudly late at night, you will not be able to sue in federal court over this. If you have a car accident and there is a dispute about it afterwards, that dispute cannot be decided by federal court. Those cases are decided by state and local courts, not federal ones.

Congress passes laws to establish which cases can be brought in federal court. If you feel your constitutional rights are violated by a government official, then you can sue in federal court under 42 United States Code (U.S.C.) Section 1983. Many thousands of those cases are brought every year. For example, if your town tries to stop you from preaching Christianity on a street corner, you may be able to sue your town in federal court for violating your rights to freedom of speech. It is not guaranteed you will win, because your town may have a valid law requiring you to obtain a permit first, or may say you were disrupting the peace by repeatedly talking too loudly. But if you do win, and many preachers have won on this issue, then you will be entitled to require the town to pay your legal fees in the case. There have been many cases about students wearing T-shirts in public school with Christian expressions on them which have become lawsuits in federal courts, after a public school official sent such a student home, under the Free Speech Clause of the First Amendment.

Other types of cases that Congress has authorized to be filed in federal court include:

  • suits brought under the laws of the United States, including the Sherman Act (antitrust lawsuits), the Copyright Act, and the America Invents Act (for patents)
  • suits brought by or against the federal government, or federal officials
  • suits brought between parties from different states, where the amount in controversy exceeds $75,000
  • most class actions which involve more than $5 million in total
  • habeas corpus petitions by prisoners (reread Lecture Four if you do not recall what that is)

Structure of the Federal Court System

Article III of the U.S. Constitution establishes the United States Supreme Court and authorizes Congress to create lower federal courts as part of a national court system. One of the first Acts passed by the new Congress in 1789, after the U.S. Constitution was ratified, was the Judiciary Act to create the federal court system. President George Washington signed this bill, officially entitled "An Act to Establish the Judicial Courts of the United States," into law on September 24, 1789.[1] This law also established the office of Attorney General in the Executive branch, within the Department of Justice, to enforce the federal laws in the federal court system.

Congress has amended this law many times ever since, but the basic structure of the federal court system remains largely the same. The federal judiciary has three levels:

  • U.S. Supreme Court
  • U.S. Courts of Appeals
  • U.S. District Courts

A typical case begins at the local district court level, and then goes on appeal to the Court of Appeals responsible for that region of the Nation. After the Court of Appeals renders a decision, the losing party can petition the U.S. Supreme Court for its review of the decision. The U.S. Supreme Court accepts only about 1% of the requests for it to review case, and it renders only about 75 decisions a year out of tens of thousands of decisions rendered by the other federal courts each year.

In federal court, the plaintiff must have legal "standing" or else the case will be dismissed. That is, the plaintiff must suffer an individual harm caused by the defendant, and the court must be able to grant relief that would redress that harm. Federal courts are courts of limited jurisdiction, which means that a plaintiff must first prove that his case belongs in federal court. Further, under the Constitution, federal courts can only decide actual cases and controversies; they cannot issue advisory opinions.

Federal courts accept cases based on rights guaranteed by the U.S. Constitution or federal statutes (including federal prosecutions of crimes). Jurisdiction also exists in federal court if the amount in dispute is substantial (more than $75,000) and the controversy is between citizens of different states ("diversity jurisdiction").[2] Most other cases, including the prosecution of most crimes ("criminal cases") and most disputes between individuals ("civil cases"), are handled in state courts.

U.S. Supreme Court

Today there are nine members of the U.S. Supreme Court (that number has varied in prior centuries). It is an odd rather than even number so that tie votes are very rare. (A tie is still possible if a justice "recuses himself" and does not participate in the decision in a particular case, as when he has a personal interest in the outcome and thus should not be acting as a judge over it.)

One of the most important presidential powers is the appointment of a new Justice to the U.S. Supreme Court, when there is a vacancy. The U.S. Constitution provides that such appointment must be based on the "Advice and Consent" of the Senate, which means that "confirmation" by a majority vote of the Senate is required. U.S. Const. Art II, Sec. 2, Cl. 2 (The President "by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court ....") (emphasis added).

The U.S. Supreme Court decides whether to grant petitions for certiorari ("cert"), which means that it will then review and decide the merits of the case, based on the "Rule of Four." The Rule of Four is simply this: if 4 out of the 9 Supreme Court Justices vote to hear a case, then the petition for cert is granted and the Supreme Court schedules the case for a full argument by both sides for a decision by the Court on the merits of the case.

The current Supreme Court "grants cert" to hear about 75 cases each year, which is only about 1% of the cases brought before it on petitions. Nearly all the cases are on appeal from a U.S. Court of Appeals; a few are on appeal from state courts, such as a state Supreme Court. There also also a very limited number of cases that are appealed from three-judge panels of a district court, as well as cases filed directly with the Supreme Court; those cases do not involve the certiorari process.

The U.S. Supreme Court uses two criteria in deciding whether to "grant cert" and hear an appeal.

  • is there a conflict between courts in different parts of the Nation, which the Court should resolve?
  • is the issue of immense national interest that the U.S. Supreme Court should decide?

The first reason -- a conflict between courts in different parts of the Nation -- is known as a "Circuit split." Each U.S. Court of Appeals is a numbered Circuit, as discussed below, and when they disagree on an issue and render conflicting decisions, then the U.S. Supreme Court likes to accept one of the cases to establish what the rule of law will be for that issue nationwide.

For example, if the U.S. Court of Appeals for the Third Circuit (which includes New Jersey) ruled that a search warrant is needed under the Fourth Amendment before police can search the trunk of someone's car, but the U.S. Court of Appeals for the Second Circuit (which includes New York) ruled that cops can search the trunk of someone's car without obtaining a search warrant, then the U.S. Supreme Court would "grant cert" on appeal from one of the two cases in order to establish a national, uniform rule concerning whether a search warrant is needed or not.

Unfortunately, many of the legal issues decided by the U.S. Supreme Court are more obscure than the above example. Among the 75 cases decided each year by this Court, only about 5-10 of them are recognizable to the general public.

One of the more interesting cases, in which your instructor was involved, was whether violent video games should receive protection as free speech under the First Amendment. Even though there was no "Circuit split" on this issue, your instructor filed a brief with the U.S. Supreme Court urging it to consider the issue due to its national importance. Millions of teenagers waste their lives playing hundreds of hours of video games each year, many of them extremely violent.

The Court heard oral argument from the State of California, which had passed a law limiting the sale of violent video games to children, on Election Day 2010 (the timing was a coincidence, and shows how the Court operates independent from elections). It took the Court longer to decide this case than any other issue that "Term" (the Court term lasts from October through June of the following year, before adjourning for the summer). Finally, on June 27, 2011, the U.S. Supreme Court announced its decision in Brown v. Entertainment Merchants Association: 5 out of the 9 Justices, a slim majority, held that violent video games are protected as free speech under the First Amendment, even with respect to their sale to children, and no law can limit their sale or rentals to children).[3] Do you agree?

Your instructor was immediately asked by USA Today to write an editorial about the decision, which it then published.[4]

Court of Appeals

There are 13 U.S. Courts of Appeals, numbered 1 through 11, plus D.C., plus a special "Federal Circuit" for handling patent and a few other specific issues. Here is a list of all the federal appellate courts:

  • U.S. Court of Appeals for the First Circuit (Maine, Massachusetts, New Hampshire, Rhode Island and Puerto Rico)
  • U.S. Court of Appeals for the Second Circuit (Vermont, Connecticut and New York)
  • U.S. Court of Appeals for the Third Circuit (located in Philadelphia, this Circuit handles appeals from New Jersey, Pennsylvania and Delaware, plus the U.S. Virgin Islands)
  • U.S. Court of Appeals for the Fourth Circuit (Virginia, West Virginia and North and South Carolina)
  • U.S. Court of Appeals for the Fifth Circuit (Texas, Louisiana and Mississippi)
  • U.S. Court of Appeals for the Sixth Circuit (Ohio, Michigan, Kentucky and Tennessee)
  • U.S. Court of Appeals for the Seventh Circuit (Indiana, Illinois and Wisconsin)
  • U.S. Court of Appeals for the Eighth Circuit (Arkansas, Nebraska, Missouri, Iowa, Minnesota, and North and South Dakota)
  • U.S. Court of Appeals for the Ninth Circuit (by far the largest Circuit, Alaska, Washington, Oregon, Idaho, Montana, California, Nevada, Arizona, Hawaii, Guam, and the Northern Mariana Islands)
  • U.S. Court of Appeals for the Tenth Circuit (Colorado, Kansas, Oklahoma, Utah, New Mexico and Wyoming)
  • U.S. Court of Appeals for the Eleventh Circuit (Alabama, Georgia, and Florida)
  • U.S. Court of Appeals for the D.C. Circuit (appeals from the federal district court in D.C.)
  • U.S. Court of Appeals for the Federal Circuit (patent issues and claims against the U.S.)

These Circuits average about a dozen active judges each, with far more on the massive Ninth Circuit, and fewer for the smaller Circuits such as the 1st Circuit. In total there are more than 100 federal appellate judges in the United States.

These Circuits have a duty to accept and hear appeals brought before them. Someone in a federal lawsuit has a right to appeal a district court decision to this level, and obtain a review of what the district court decided.

Because the U.S. Supreme Court considers only 1% of the cases brought before it, about 99% of the decisions by these Courts of Appeals are the last word in a lawsuit.

A few of these Courts of Appeals are known to be conservative-leaning, while others are liberal-leaning in their viewpoint, often reflecting the political views of the region they represent.

A decision in one Court of Appeals does not bind (control) the decisions in other Courts of Appeals. However, it is common for a Court of Appeals to refer to decisions by other Courts of Appeals when resolving an issue before it, when there is no prior decision in its own Court of Appeals that controls the outcome.

Unlike the district court level, where decisions are rendered by only one "trial" judge, the decisions rendered by each Court of Appeals is by a 3-judge panel. It is an odd rather than even number in order to reduce the possibility of a tie vote.

In rare cases of immense importance, such as abortion, the losing party may petition all the active judges on a Court of Appeals to "rehear en banc" a decision by a 3-judge panel.[5] The Court of Appeals for the Eighth Circuit (or "the Eighth Circuit" for short) did exactly that in 2012 to overturn a panel decision that favored abortion, and the en banc court then voted 7-4 to uphold a good pro-life law in South Dakota.

District Court

District Court is the trial level, where cases are decided by juries or by the judge himself. There are a total of 89 districts in the 50 United States (New Jersey and Alaska have only one federal district each, but Oklahoma has three!). There are also district courts in territories of the United States, such as Puerto Rico, where proceedings must be conducted in English even though Spanish is the predominant language of that United States territory.[6]

In federal court, the Seventh Amendment guarantees a right to a jury trial when someone sues for damages. But when a lawsuit is only for an injunction or declaratory relief, such as ordering a school to remove a plaque containing the Ten Commandments, then there is no right to a jury trial, and the judge will conduct a "bench trial" whereby the judge decides the issue. Furthermore, it is possible for both parties to waive their right to a jury trial before a complaint is filed (such as in a contract) or afterwards (by failing to timely request a jury trial).

There is much strategy among attorneys in choosing whether they prefer a jury trial or a bench trial, and there are some surprising views on the topic. A study found, for example, that often a criminal defendant is better off with a bench trial (a trial before only a judge) rather than a jury trial.

"Article III Judges"

"Article III" judges are those appointed by the President and confirmed by a majority of the U.S. Senate to lifetime tenure as federal judges, to either the district court, a Court of Appeals, or the U.S. Supreme Court. They are not elected and they can be removed from office only if impeached by the Senate, which is rare and has never been done based on how they ruled in specific cases.

There are also non-Article III judges, such as magistrate and bankruptcy judges. They are appointed for a fixed term (such as eight years), which can be renewed. These jobs are not guaranteed until they retire, as Article III jobs are. Magistrate judges can conduct jury trials only if both sides in the case consent for a Magistrate to preside over a jury trial.

"Withdrawal of Jurisdiction"

What Congress can grant, it can also take away, and that means Congress can take jurisdiction over certain issues away from federal courts. Indeed, the courts themselves have upheld numerous restrictions on the exercise of appellate jurisdiction. Examples include:

  • for a hundred years Congress did not allow a right of appeal to the U.S. Supreme Court in criminal cases except upon a certification of divided Courts of Appeals;
  • in 1932, Congress passed the Norris-LaGuardia Act to remove labor disputes from federal courts, and the Supreme Court upheld that withdrawal of jurisdiction in Lauf v. E.G. Shinner & Co. (1938): "There can be no question of the power of Congress thus to define and limit the jurisdiction of the inferior courts of the United States";
  • Congress also passed the Hiram Johnson Acts in order to remove jurisdiction from the federal courts over public utility rates and state tax rates;
  • In 1942, Congress removed jurisdiction from federal courts to consider the validity of the Emergency Price Control Act of 1942, and the Supreme Court upheld that withdrawal of jurisdiction in Lockerty v. Phillips (1943);
  • After the Supreme Court ordered employers to pay retroactive wages for coal miners' underground travel to and from their work station, in Tennessee Coal v. Muscoda (1944), Congress then passed the Portal-to-Portal Act of 1947 to prevent enforcement of that decision by prohibiting any federal court from enforcing such liability.

The list of examples of Congress withdrawing jurisdiction from courts goes on and on, and has continued right up to recent years. In 2005, for example, Congress passed the Protection of Lawful Commerce in Arms Act, which withdrew jurisdiction from federal courts to impose damages against gun manufacturers for "the criminal or unlawful misuse" of any gun distributed in interstate commerce. On the same day it was signed into law by President George W. Bush, gun manufacturers moved to dismiss a massive lawsuit filed against them, and the motion was successful: the entire lawsuit was dismissed. On appeal, the U.S. Court of Appeals for the Second Circuit affirmed the dismissal in City of New York v. Beretta U.S.A. Corp. (2008). The U.S. Supreme Court denied the cert petition by the pro-gun control plaintiff, the City of New York, in 2009.

State Courts

While this course is primarily about the federal government, do not forget that each State has its own government, and its own court system. Most states have elected judges, but some (including New Jersey) do not. In New Jersey, a judge is appointed by the Governor and confirmed by the New Jersey Senate, and after a fixed period of years (the term of office for the judge) comes up for renewal. Only if he is renewed does he enjoy the equivalent of "tenure" or a lifetime job.

State courts handle thirty times as many cases as federal courts. Each year there are about 30 million cases filed in state court, while about 1 million cases are filed in federal court. State courts also have far more judges. There are about 30,000 state court judges, while there are only about 1,700 federal court judges.[7]

Federal judges are appointed for life, and never stand for an election. Perhaps as a result, they tend to be more liberal than state court judges who must stand for elections, because voters tend to be more conservative than most lawyers. In the South (and in New York) most state judges are elected. When a judge loses reelection, then his cases must be reassigned to other judges who are elected.

Theories of Constitutional Interpretation

The Supreme Court views one of its primary roles to be to interpret the Constitution. Does the Constitution protect violent video games as free speech, under the First Amendment? Does the Constitution establish a right to burn the American flag? Does the Constitution prohibit Obamacare under the Origination Clause (because challengers argue that Obamacare raises revenue but did not originate as a revenue-raising bill in the House of Representatives)? Does the Constitution prohibit classroom prayer in public schools?

These are all questions that require interpreting the Constitution. Similarly, the Supreme Court (and all federal courts) are required to interpret statutes enacted by Congress. Often the statute passed is not clear in resolving a particular dispute. Controversy arises over what a new statute actually means, and how it should apply to a particular circumstance. Courts resolve this type of dispute.

There are several different "schools" of constitutional (and statutory) interpretation. Adherents to these "schools" will repeatedly champion their particular approach to interpreting the Constitution and statutes.

Soon after the adoption of the Constitution, the two leading philosophies for interpreting the Constitution were the "strict constructionists" and the "loose constructionists." The strict constructionists favored interpreting the Constitution narrowly in the powers that it gives to the federal government. Thomas Jefferson and the Democratic-Republican Party was of this view.[8] The loose constructionists, in contrast, interpreted the Constitution broadly to give the new federal government more power. Alexander Hamilton and the Federalist Party were loose constructionists. An example of the different views of the "strict" versus "loose" constructionists is how the strict constructionists (like Jefferson) felt that Congress did not have the power to create a national bank, while the loose constructionists (like Hamilton) felt that Congress has the power under the Constitution to create a national bank, and should do so.

But just as the terms "Federalist Party" and "Democratic-Republican Party" have disappeared over time from politics, the terms "strict" and "loose" constructionism are rarely used by politicians or judges today to describe their current differences in philosophies of interpretation. Instead, the three major philosophies of constitutional interpretation today are "originalism", "textualism", and an "evolving" Constitution.


"Originalism" means to interpret the Constitution (and other laws) based on their intended meaning. Judge Robert Bork, who was a judge on the U.S. Court of Appeals for the D.C. Circuit and was nominated to the U.S. Supreme Court by President Ronald Reagan but not confirmed by the U.S. Senate, was a leading supporter of originalism:

If the Constitution is law, then presumably its meaning, like that of all other law, is the meaning the lawmakers were understood to have intended. If the Constitution is law, then presumably, like all other law, the meaning the lawmakers intended is as binding upon judges as it is upon legislatures and executives. There is no other sense in which the Constitution can be what article VI proclaims it to be: "Law". ... This means, of course, that a judge, no matter on what court he sits, may never create new constitutional rights or destroy old ones. Any time he does so, he violates not only the limits to his own authority but, and for that reason, also violates the rights of the legislature and the people.

Judge Bork explained that "the philosophy of original understanding is thus a necessary inference from the structure of government apparent on the face of the Constitution."

Originalism gives priority to tradition. Chief Justice Warren Burger, a slightly conservative jurist, wrote an originalist opinion for the Supreme Court in Marsh v. Chambers (1983), which upheld the right of legislators to begin their sessions with a prayer based on the strong tradition of legislators starting with a prayer since before the Constitution was even adopted.[10] Thus the Framers could not have "intended" for the Constitution to prohibit it.

Simply put, "originalism" means that the "original intent" is what governs. Originalism requires giving a great deal of weight to what the legislators (or Framers) wrote or said at the time they were supporting the law (or Constitution). The people who wrote and ratified the 14th Amendment were not trying to establish a right to abortion, and thus under "originalism" there is no right to abortion in the Constitution.

Conservative judges tend to support originalism, but they differ on how much emphasis to place on "intent" rather than the plain meaning of the law itself. The originalists who are textualists, such as Justice Antonin Scalia, downplay the significance of legislative intent when the text is clear, as explained below.


"Textualism" is an approach to interpretation that is similar, but slightly different from, originalism. Under "textualism", the original meaning of the provision in the Constitution (or a law) is what governs, not the original intent. A textualist assumes that the people who wrote and passed a law (or a provision in the Constitution) meant what they said. A textualist does not look beyond the plain meaning of the law, if it is clear.

Advocates of textualism are Supreme Court Justices Antonin Scalia and Clarence Thomas, and a prominent judge on the U.S. Court of Appeals for the Seventh Circuit, Frank Easterbrook.

Under textualism, there is not a right to abortion in the Constitution either, because abortion is not even mentioned.

An "Evolving" Constitution

There are a variety of terms to describe the view that the meaning of the Constitution should change or "evolve" over time: non-originalist, pragmatist, results-oriented, etc. This view, the opposite of a conservative one, finds new rights even though those rights did not exist, and were not intended to be created, by the writing and ratification of the Constitution. Examples of the new rights "found" in the Constitution by liberal judges include abortion, same-sex marriage, censorship of classroom prayer, and a ban against the death penalty in many situations. The Framers would have been shocked to learn that the Constitution would ever be interpreted in this manner, but supporters of an "evolving" Constitution say that its meaning (and the meaning of other laws) should change over time.


Answer any five of the following six questions:

1. What are the three branches of government, and which do you feel is the "least dangerous" branch? Explain your answer.

2. Explain what the "Rule of Four" is, and how about how often it is satisfied each year. Include in your answer the percentage of cases in which it is satisfied.

3. Explain how many different U.S. Courts of Appeals there are, and how many federal district courts they handle appeals from. How many district courts are there in New Jersey, and which appellate court handles the appeals from New Jersey?

4. What is an "Article III" judge, and how is he different from a non-Article III judge? Include in your answer an example of an Article III and non-Article III judge.

5. Explain two or three different types of constitutional interpretation, including your view about which one you prefer. Your answer should include an issue for which the different approaches to interpretation reach different results.

6. Compare the system of state courts to the system of federal courts, including examples of types of cases which may, and which types of cases may not, be brought in federal court.


Answer any two of the following three questions:

7. Can you think of any issues in which you would want Congress to withdraw jurisdiction from the federal courts? Explain, including an example of an issue Congress has withdrawn from the federal courts.

8. Discuss your view on whether there should be a First Amendment right to sell violent video games to children. How did the U.S. Supreme Court decide that issue?

9. Should Article III judges stand for election? Do they? Include in your answer an explanation of how an Article III judge obtains his position (office), and how he can be removed from office.


  2. 28 USC § 1332(a).
  3. (The ruling was announced as being 7-2, but the vote was 5-4 to establish a First Amendment right to sell violent video games to children.
  5. Because of the Ninth Circuit's large size, rehearings en banc in the Ninth Circuit consist of a panel of eleven judges: the chief judge and ten other randomly selected judges. [1]
  6. Puerto Rico became a territory of the United States in 1898, as an acquisition from Spain at the conclusion of the Spanish-American War.
  8. The Democratic-Republican Party, which was originally called simply the Republican Party when it was founded in 1792, included many of the anti-Federalists and preferred a smaller, more limited federal government.
  9. The quotation is from Judge Bork's book, The Tempting of America (emphasis added).