The Judiciary


Alexander Hamilton called the federal judiciary the “least dangerous branch” in Federalist Paper 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.”

What was Alexander Hamilton thinking? The French philosopher Montesquieu, who inspired the separation of powers in our Constitution, declared that “Of the three powers [legislative, executive and judiciary], the judiciary is next to nothing.” Spirit of Laws, Vol. I, p. 186.

Were they right? To their credit, the judiciary does lack enforcement power. It cannot do anything by itself. It has no army; it cannot declare war; and by itself it cannot even arrest anyone. The judiciary cannot initiate cases on its own. It can only decide cases brought by others before it. It must rely entirely on the executive branch for enforcement of its decisions.

The judiciary has virtually no effect on foreign policy, taxes or government spending. The judiciary does not directly affect our economy. The federal judiciary has no role in the prosecution of most crimes, such as murder or robbery. Those are handled in state courts.

So what’s all the current fuss over the federal judiciary about? In the past forty years, the federal courts have asserted control over many moral issues: prayer, Ten Commandments, schools, abortion, pornography, the death penalty, and so on. Many now feel that the federal judiciary has become the most dangerous branch, and so far Congress has done nothing to check its power.

The Judiciary

The Judiciary Act of 1789 established a federal court system that has grown ever since. Now it consists of 94 federal district courts, 13 federal courts of appeals, and one United States Supreme Court.

There are only 50 states and a few territories, so some states have more than one federal district court. New York has four. Illinois has three. New Jersey has one. The Virgin Islands, a United States territory, has one federal district court.

The path of a federal case is typically as follows. A plaintiff first files a lawsuit in a federal district court. It is assigned to a federal judge, who once was appointed by the president and confirmed by the Senate. Federal judges do not stand for election or reelection, and serve for as long as they want. The good news is that they are insulated from the irrational public; the bad news is that there is very little accountability. The judges are supposed to apply the Rule of Law to the dispute before them.

Not every case can be filed in federal court. If someone is complaining about a violation of federal law, then the lawsuit may be brought in federal court. But if the complaint is based on state law against a defendant who resides in the same state, then the federal courts lack jurisdiction. That case must be filed in state court, where judges are typically elected.

In personal injury cases, plaintiffs often prefer to be in state rather than federal court. Can you think of why? (Answer: damage awards in state court tend to be higher, and trial attorneys can find friendlier state court judges). In criminal cases, defendants typically prefer to be in state court too. Do you know why? (Answer: federal courts tend to favor prosecutors more than state courts do).

If the lawsuit is between citizens of different states, then the amount in dispute must be at least $75,000 to gain access to federal courts. NOTE: THE BOOK IS WRONG BY SAYING THE MINIMUM AMOUNT IS $50,000. But no minimum amount is required if the plaintiffs’ claim is based on federal law.

Suppose you are in federal district court, and you lose. Do you have any further recourse? Yes, you can appeal the decision to a federal court of appeals. In New York, the Court of Appeals is the “Second Circuit”. In New Jersey, appeals are taken to the “Third Circuit,” which covers New Jersey, Pennsylvania, Delaware and the Virgin Islands. In Texas, federal appeals are to the “Fifth Circuit.” The largest federal Court of Appeals is the Ninth Circuit, which covers California, Oregon, Washington, Arizona and other western states. Congress has considered splitting it into two circuits.

On appeal, you will find yourself before a three-judge panel. A vote of the majority of the three judges will decide your case. It takes about nine months to submit legal memoranda on why you think the federal district court was wrong and hold “oral argument” before the three-judge panel. Don’t be surprised if the judges are inattentive at oral argument, or even dosing off to catch up on some sleep! Also, don’t be surprised if their questions seem to favor your side, but a few weeks later issue a written decision against you. You usually have to wait weeks or a month or two for a decision. In controversial or difficult cases, it can be a year before you receive a decision.

If you lose before the federal court of appeals, then your last chance is to appeal it to the United States Supreme Court.

The United States Supreme Court

The United States Supreme Court is the final authority on the law. It accepts fewer than 100 cases a year out of 7500 or so. The overall odds of having the Supreme Court hear your case are barely more than 1%. Generally one side must petition the Supreme Court for a writ of certiorari (Latin meaning “to be informed of”). Informally, this is simply known as seeking “cert.” In the few cases that the Supreme Court agrees to hear, it “grants cert.” to review the case.

The main criterion for “granting cert.” is whether there is a disagreement between two or more federal courts of appeals on a legal issue. For example, the Seventh Circuit (in Chicago) held that the phrase “under God” in the Pledge of Allegiance does not violate the First Amendment, while the Ninth Circuit (in San Francisco) recently held that it does. This creates a sharp conflict between different areas of the country, which only the Supreme Court can resolve. We filed a brief in support of cert. in this case, and expect a ruling very soon, perhaps even this week.

Another factor determining whether the Supreme Court will hear a case is its importance. An example would be a case directly involving the president. If the president is not involved, however, a case must be tremendously important to trigger review solely on this basis.

When the Department of Justice requests that the Supreme Court accept a case, then that carries extra weight (too much extra weight, in the eyes of some). The federal government has a special office assigned to argue cases before the Supreme Court, known as the Solicitor General’s office. Ted Olson is our current Solicitor General in the Bush Administration. Officially, he works for Attorney General John Ashcroft in the Department of Justice; unofficially, he often seems to do what he wants.

The nine Justices on the current Supreme Court were appointed as follows:

by President Nixon: Chief Justice William Rehnquist

by President Ford: Justice John Paul Stevens

by President Carter: no one

by President Reagan: Justices O’Connor, Scalia and Kennedy

by the first President Bush: Justices Souter and Thomas

by President Clinton: Justices Ginsburg and Breyer

by President George W. Bush: no one.

Politically, the Court has 3 conservatives (Rehnquist, Scalia and Thomas), 4 liberals (Stevens, Souter, Ginsburg and Breyer) and 2 “moderates” (O’Connor and Kennedy).

The Court has forged an enduring majority on issues of federalism (returning power to states), free speech (expanding free speech protections) and school vouchers. The Court has also recently reduced intolerance towards religion, allowing prayer groups as after-school activities.

It was this Supreme Court that held in favor of President George W. Bush to resolve the disputed election in 2000. That was a narrow 5-4 margin, even though Republican-appointed justices hold a 7-2 majority. In fact, many important decisions are decided on only a 5-4 basis. The decision allowing school vouchers, whereby parents could receive vouchers from public schools to attend private schools, was by a 5-4 vote. Polarization on the Court seems to favor razor-thin margins in decisions.

The Chief Justice’s vote is not worth more than any other Justice on the Court. However, he does have the advantage of deciding who writes the opinion for his side in a case. Whichever side he is on (majority or dissent), he picks the person to write the decision of his side. In important cases, he picks himself to write it. The most senior justice on the other side picks who writes the opinion for that side.

The infamous Roe v. Wade decision promoting abortion was by a 7-2 vote, with Rehnquist in dissent. Court folklore is that Chief Justice Warren Burger was himself against abortion, but voted with the majority in order to be able to select the author of the opinion. He picked Justice Blackmun, a longtime friend of his. However, Justice Blackmun then wrote a dreadful opinion.

Each State also has its own Supreme Court to oversee the state court system. However, its name is not always “Supreme Court.” In New York, oddly enough, the “Supreme Court” is the lowest level, where trials are held. The highest appellate court is the “New York Court of Appeals.”

One’s “Day in Court”.

I have personally litigated numerous cases over the past ten years. Before long, it became painfully clear to me that both sides in litigation are typically worse off at its end of litigation than at the beginning. In other words, litigation is usually a lose-lose proposition for both sides. So why are so many lawsuits filed?

Criminal cases are, of course, viewed as necessary to punish wrongdoing and deter crime. This is certainly true in state court, where crimes like murder are prosecuted. In federal court it is less clear. Since 9/11, we have been told that federal agents are looking for and catching terrorists. Yet not a single person has been convicted of any crime in connection with 9/11.

In fact, a federal judge recently ruled against the government in its prosecution of the alleged 20th terrorist, Zacarias Moussaoui. He says he is a member of al-Qaeda but knew nothing about the attacks. He seeks to prove his innocence by having his attorney question several key al-Qaeda prisoners. When the government refused to allow this, the judge recently decided that he cannot be prosecuted for being involved in 9/11.

The government is not prosecuting any other citizens for the 9/11 attack itself. Instead, the vast majority of federal prosecutions concern immigration and drugs. High publicity cases include the prosecution of executives like Martha Stewart. Sometimes congressmen are prosecuted, like the former Chairman of the powerful Ways and Means Committee, Dan Rostenkowski. He was convicted but President Clinton later pardoned him.

Most cases in federal court are “civil” disputes, whereby the government or a private party brings non-criminal charges against a defendant. Commercial disputes and claims of personal injury are the vast majority of these cases. Often they require many years and much legal fees before resolution. Rarely do the parties recover more than they spent in attorneys fees. Why do they bother?

Americans do this because they like their “day in court.” In the old days, someone who felt he was wronged would challenge his opponent to a duel. Within days they would meet at dawn somewhere and try to kill each other, often leaving one dead. That practice was stopped by prosecuting the person who survived for murder. Now this type of dispute is resolved by one person suing the other. Win or lose, at the end they feel received their “day in court” to vent their grievance.

Trial Judges

When you receive your day in court, you appear before a “trial judge.” He is all-powerful in the courtroom, operating as king and dictator. And he may remind you of that frequently.

His job is not as easy as it looks. Two opposing parties both insist that they are right, and he has to decide. King Solomon became famous for his wisdom when he was confronted by two women and an infant boy, each woman claiming to be the infant’s mother. How would you decide? How did King Solomon decide?

From 1 Kings 3:23-28:

… the king said, “The one says, “This is my son that is alive, and your son is dead”; while the other says, “Not so! Your son is dead, and my son is the living one.” ” 24 So the king said, “Bring me a sword,” and they brought a sword before the king. 25 The king said, “Divide the living boy in two; then give half to the one, and half to the other.” 26 But the woman whose son was alive said to the king—because compassion for her son burned within her—”Please, my lord, give her the living boy; certainly do not kill him!” The other said, “It shall be neither mine nor yours; divide it.” 27 Then the king responded: “Give the first woman the living boy; do not kill him. She is his mother.” 28 All Israel heard of the judgment that the king had rendered; and they stood in awe of the king, because they perceived that the wisdom of God was in him, to execute justice.

Many judges today tend to compromise, something Solomon would not do. Juries will often compromise also, giving each side half of what it asked for. This does not guarantee justice, because one side may be completely wrong. If a defendant is innocent, then he should not be convicted on half of the charges. If one side asks for two or ten times as much as it should, then compromising does not achieve a just result.

What kind of judge would you be?

Appellate Judges

Appellate judges have a very different job from trial judges. The appellate judges must establish rules that render justice in the case before them, and in all other cases having similar facts. They need to look beyond the dispute at hand and anticipate justice in future disputes also.

A classic problem is the “slippery slope.” That is what happens when someone steps onto a very slippery incline: they slide all the way down to the undesired bottom. An example in life is when someone takes illegal drugs for the first time. They are stepping on a slippery slope that will ruin their lives. Addiction results from the first use, and they soon slide to the bottom of society.

In the law, the slippery slope is when a court makes an exception that invites many more exceptions like it. Or when a court creates a new constitutional right that invites many more new rights like it.

An example is when “free speech” protection was extended to obscenities. In one case, a Vietnam protester wore a jacket in a courtroom that had an obscene word written on it, in reference to the draft. He was convicted for disturbing the peace and he appealed his case all the way to the U.S. Supreme Court. He ultimately won on free speech grounds. But once one protects obscenity as free speech, it became a slippery slope. Once one obscenity is protected, then other obscenities inevitably follow?

This can also be seen in the Establishment Clause cases, such as the Ten Commandments case. Some feel that Judge Roy Moore should have removed the Ten Commandments from the Alabama Supreme Court. Though supportive of religion, they feel that a few citizens might have been offended by the display. But that argument becomes a slippery slope. Where does the purging of religion from public life stop? Its logic requires purging all religious references from public life: “In God We Trust” from our coins, and “under God” from our pledge of allegiance. Before long, society slides down to the bottom of the hill, and hostility to religion has triumphed.

It’s best to stay off the slippery slope.

“Stare Decisis”

“Stare decisis” means “to stand by that which was decided.” For judges, it means they should decide similar cases in a similar manner. When a precedent is established, “stare decisis” means courts should abide by it. For the Supreme Court, “stare decisis” means it should adhere to its prior rulings.

In fact, the Supreme Court often changes its mind. In 1940, it held that a Jehovah’s Witness can be forced to say the Pledge of Allegiance against his religion. Two years later, in 1943, the Supreme Court reversed itself and said no one should be forced to violate their own religious beliefs like that. In other cases, the Supreme Court has even reversed itself within a year.

In 1992, the Supreme Court had an opportunity to overturn its Roe v. Wade decision, which earlier declared a new constitutional right to abortion. But Justice Kennedy cast the deciding fifth vote against overturning it, saying that stare decisis compelled him to be consistent with Roe v. Wade. However, last June, Justice Kennedy wrote a decision in favor of gay rights that expressly overturned a decision in 1986.

Do you think stare decisis should prevent the Court from overturning Roe v. Wade?


1. Recently a student wore a T-shirt to public school that depicted President Bush as a terrorist. The school authorities told him he could not wear that shirt. He went to court asserting his free speech rights. Who should win?

2. Do you think the alleged “20th hijacker,” Zacarias Moussaoui, should be able to question key al-Qaeda members to prove his innocence concerning the 9/11 attack?

3. Do you think ordering Judge Roy Moore to remove the Ten Commandments created a “slippery slope”?

4. Do you think “stare decisis” should prevent the Court from overturning Roe v. Wade?

Lecture 5 Quiz

Did You Know?