Key Terms:

amicus curiae briefs;  appellate jurisdiction;  certificate;  concurring opinion;  defendant;  dissenting opinion;  exclusive jurisdiction;  jurisdiction;  original jurisdiction;  judicial review;  majority opinion;  plaintiff;  redress;  writ of certiorari;

I.       The National Judiciary

A. The Creation of a National Judiciary

1. The federal court system was established by Article III of the Constitution.

2. There are two separate court systems in the United States.

a. The United States has a national system of courts.

b. The majority of the cases heard in the United States each year are heard in the state courts.

3. Over the years Congress has created two types of federal courts.

a. Article III, or Constitutional courts include the United States Supreme Court, the courts of appeals, the district courts, and the Court of International Trade.

b. Article I, or special, or legislative, courts are created by Congress and hear only a limited range of specialized cases.

B. Jurisdiction in the Federal Courts

1. Federal courts can hear cases that deal with the interpretation and application of a provision of the Constitution or of any federal statute or treaty. Jurisdiction is the power of a court to try and decide a case.

2. They can also hear cases that arise on the high seas or in navigable waters of the United States.

3. Federal courts may hear only cases that involve certain parties.

4. All cases that do not fall under the jurisdiction of the federal courts are within the jurisdiction of the State courts.

5. Some federal courts have exclusive jurisdiction, i.e., those cases that can ONLY be heard in the federal courts.

6. By far, the most common kind of jurisdiction (judicial authority) is concurrent jurisdiction, i.e., they share the power to hear cases. Cases can be heard in either the federal or state courts. **** In civil cases, a plaintiff is one who initiates a lawsuit, a defendant is the party against whom a lawsuit is brought.  In criminal cases, the government is the equivalent of a plaintiff in that the government is the party who initiates the criminal action.  

a.Cases involving concurrent jurisdiction fall into the following categories:

a. Common law - Also known as "judge made law" which is based on the legal concept of stare decisis, or judicial precedent. This law originated in England.

b. Cases of equity - Those cases which cannot be resolved under common law precedent. Judges may be asked to issue injunctions or award damages against an individual.

c. Statutory law:

1) Civil law - cases that deal with contract issues and tort cases and define the legal rights of individuals.

2) Criminal law - cases that derive from criminal statutes passed by the federal and state governments.

3) Public law - cases that include constitutional law, involving constitutional issues, and administrative law, involving disputes over the jurisdiction of public or administrative agencices.

7. The district court in which a case is first heard is said to have original jurisdiction. Original jurisdiction is the power to hear a case first, before any other court.

8. The appellate court to which a case is appealed from a lower court is said to have appellate jurisdiction. Appellate jurisdiction is the authority of a court to review decision of inferior (lower) courts on questions of law.

9. The concept of an independent judiciary presupposes that the courts are to be free from outside influence.

C. Appointment of Judges

1. Federal judges are nominated by the President and confirmed by the Senate. **** Federal Judges CANNOT be removed from office at the President's discretion. Only method of removal is through the constitutional avenue of impeachment.

2. **** Presidents almost always nominate persons from their own political party who share their ideology, with deference to the senators from the State in which the appointee will serve, i.e., "senatorial courtesy," and with "some" consultation of the leaders of the party to which the President belongs. This is especially true of the selection of Supreme Court justices where the nominees are usually members of the President's political party. From the administration of FDR to the administration of Bill Clinton, with the exception of Gerald Ford, every president has appointed over 90 percent of lower federal court judges from his own political party.

3. Once nominated, the judicial candidate must appear before the Senate Judiciary Committee and is given a complete background check by the Department of Justice.

D. Terms and Pay of Judges

1. Federal constitutional judges, Article III judges, are appointed for life and may be removed only through the impeachment process.

2. Congress sets judicial salaries and benefits.

E. Court Officers

1. Each district court has many officials who assist the district judge.

2. These include clerks, bailiffs, stenographers, magistrates, bankruptcy judges, United States attorneys, and federal marshals. Federal marshals carry out duties much like those handled by a county sheriff. They arrest persons accused of federal crimes, serve legal papers, execute court orders and decisions, among other things.

II.      The Inferior Courts

A. The United States District Courts

1. There are 632 federal district judges. 80 percent of the federal cases that come before federal judges are tried in the federal district courts. Usually, cases tried in federal district courts are heard by a single federal judge. Exception: Voting Rights cases and redistricting cases.

2. Each Stated forms at least one judicial district, and two judges are assigned to each district. U.S. District courts cover an assigned territory that is based primarily on geographic regions.

3. U.S. District Courts have original jurisdiction over most of the cases heard in the federal courts.

a. U.S. District Courts hear both civil and criminal cases.

b. U.S. District Courts use both grand and petit juries. Not used by the circuit courts.

B. The United States Courts of Appeals

1. U.S. Court of appeals were created in 1891 as "gatekeepers" to the Supreme Court. They were create primarily to relieve the United States Supreme Court of the burden of hearing most appeals. They have only appellate jurisdiction, no original jurisdiction.

2. There are now 12 courts of appeals and 179 circuit judges.

3. Appellate courts are regional and usually hear appeals from courts within their circuits. Cases brought before the federal courts of appeals are usually heard by a panel of three judges.

4. They also hear appeals from the decisions of several federal regulatory agencies — from such quasi-judicial agencies as the ICC, the Nuclear Regulatory Commission, and the Federal Trade Commission.

C. Two Other Constitutional Courts

1. The International Trade Court has nine judges who hear only civil cases arising out of the tariff and other trade-related laws. Appeals from the Trade Court go to the Court of Appeals for the Federal Circuit.

2. The Court of Appeals for the Federal Circuit has 12 judges. It was set up in 1982 to centralize the appeals process in certain types of federal cases and in cases form certain lower and special courts. They hear appeals from the International Trade Court, the Court of Veteran Appeals, the Merit Systems Protection Board.

III.    United States Supreme Court

A. Judicial Review

1. Judicial review is the power to decide on the constitutionality of an act of government.

2. The principle of judicial review was established in the case of Marbury v. Madison, 1803. It is NOT expressly defined in the Constitution.

3. The Supreme Court has great power as the ultimate authority on constitutionality and as the arbiter of disputes between States and between States and the Federal Government.

B. Jurisdiction

1. **** The Supreme Court is the ONLY federal court that has both original and appellate jurisdiction; however, the overwhelming majority of its cases are appeals. It has established that it has original and exclusive jurisdiction over:

a. all controversies between two or more States and

b. all cases brought against ambassadors, or other public ministers, but not consuls.

2. Today the Supreme Court has almost complete control over its own caseload.

C. How Cases Reach the Court

1. Under "the rule of four," at least four judges must agree that the Court should hear a case before that case is selected for the Court's docket.

2. Most cases reach the Court by writ of certiorari — an order made by the Supreme Court to a lower court, requesting the records of a particular trial for its review. The vast majority of cases come from State courts of last resort (state high courts) and federal appellate courts.

a. The appeal is heard based on five criteria:

1) If a court has made a decision that conflicts with precedent.
2) If a court has come up with a new questeion.
3) If one court of appeals has made a decision that conflicts with another.
4) If there are other inconsistencies between courts of different states.
5) If there is a split decision in the courts of appeals.

b. If a writ is granted, the lower court send to the Supreme Court the transcript of the case to be appealed. If the writ is denied, the decision of the lower court stands.

3. Some cases are sent to the Supreme Court by certificate, i.e., a request by a lower court that the Supreme Court rule on a specific legal issue. Acceptance by certificate is extremely rare.

D. The Supreme Court at Work

1. Oral Arguments — In oral argument, lawyers address the justices, emphasizing the major points of law they made in their written briefs.

2. Briefs — Briefs, written documents supporting one side of a case, are submitted before oral arguments are heard. **** The Court may also give permission for the filing of amicus curiae briefs, i.e., "friends of the Court." Interest groups attempt to affect the federal courts by filing amicus curiae briefs in relevant cases pending before the court. They may be filed ONLY at the request of the Court, or with the Court's permission. Amicus briefs support one side in a case so by definition, cite legal precedents to persuade the Court of a certain point of view.

3. Solicitor general — The solicitor general represents the United States before the Supreme Court in all cases to which it is a party.

4. The Conference — The justices meet in secret session to discuss in depth and vote on the cases they have heard.

5. Opinions — The majority of the justices of the Supreme Court always write the Opinions of the Court (the majority opinion); there may also be concurring opinions and dissenting opinions; all may have an influence on subsequent rulings.

a. Concurring opinion — an opinion written to make a point that was not made in the Opinion of the Court.

b.Dissenting opinion — an opinion disagreeing with the majority opinion of the Court.

6. Judicial philosophies

a. Judicial activism - Perhaps the most activist Court in the history of the Supreme Court, the Warren Court (1953-1969) faced the question of determining the future of the civil rights movement, among other things. Critics of judicial activism believe that Congress, not the Court, should make policy.

b. Judicial restraint - The Rehnquist Court (1986-present), is the most conservative Court in American history, exercising judicial restraint at every opportunity. Those favoring judicial restraint would like to see judicial precedent be the guiding light.

IV.    The Special Courts

A. Special Courts, in General

1. Two types of courts, constitutional and special.

2. Special courts, also known as "legislative courts," or "Article I" courts, are not established pursuant to Article III, so they do not exercise the broad "judicial power of the United States."

3. Unlike constitutional courts, i.e., Article III courts, Article I courts, i.e., the special courts, do not exercise the "judicial power of the United States."

B. The United States Claims Court

1. The United States cannot be sued - by anyone, in any court, for any reason - without its consent.

2. The Claims Court hears cases from all over the country in which there are claims for damages against the Federal Government.

3. Originally, before 1855, a person with a claim against the Untied States could secure redress only by an act of Congress.Redress is satisfaction/payment of a claim.

C. The Territorial Courts

1. Under the Constitution, Congress created courts for the nation's territories. At the current time, there are three (3) courts. The courts sit in the Virgin Islands, Guam, and the Northern Marianas.

2. These courts operate much like local (state) trial courts.

D. The Courts of the District of Columbia

1. The District of Columbia has its own system of courts.

2. This system was established by Congress.

E. The Court of Military Appeals

1. The three judges of this court are civilians appointed to 15-year terms, with the consent of the Senate.

2. This court, sometimes called the "GI Supreme Court," hears appeals from serious court-martial convictions. Its decisions may be, but almost never are, appealed to the United States Supreme Court.

F. The Court of Veterans Appeals

1. The seven judges of the Court of Veterans Appeals are appointed by the President for 15-year terms, with the consent of the Senate.

2. They hear appeals from veterans who claim that the Veteran's Administration has mishandled their case.

3. Appeals from the Court of Veterans Appeals go to the Court of Appeals for the Federal Circuit.

G. The United States Tax Court

1. The 19 judges of the Tax Court are appointed by the President to 12-year terms. Established in 1969.

2. The Tax Court hears only civil cases involving disputes over the application of tax laws.