The Judicial Branch

The Constitution in Article III places the judicial power of the United States in a Supreme Court and inferior courts that Congress may establish. The Judicial Branch includes all of the federal courts.

Types of Law

The Judicial Branch deals with law. In the United States, we have two general types of law--written and unwritten.

Written law is law that has a document where the law may be researched. There are three major types of written law. Written law that establishes the rules that governments operate under are constitutions. Statutes are broad laws passed by the legislature. When the executive applies specific policies to the statutes so he can enforce them, the President's policies are administrative rules and regulations.

Unwritten law is judge made law usually based on the customs of the area and the judge's knowledge of the specific case. There are two general types of unwritten law. Equity law is preventive law. This type of unwritten law tries to prevent an injustice from happening. When a judge grants an injunction in a case, he or she is probably using equity law. Common law, the second type of unwritten law, is compensatory. It compensates an individual when someone does something to him or her.

Cases in the United States are divided into civil and criminal cases. Civil cases are disputes between individuals in which there is no harm to society. In civil cases, the government is neutral. Criminal cases are cases involving crimes against society. Crimes such as murder, rape or kidnapping may be between two individuals but they are crimes against society as a whole. In cases such as these, the government acts as the defender of society and prosecutes the case.

Judicial Power

The court system in the United States is an adversity system. There must be a dispute for the courts to make a decision in a case.

The judicial power in the United States has several sources. As with the other branches of government, authors do not agree on all of the sources. Textbook authors generally accept three sources--the Constitution, statutes and prestige.

The Constitution grants power to the United States Supreme Court. The Supreme Court has original jurisdiction in two types of cases. Original jurisdiction means that a court is the first court to hear a case. The Supreme Court is given original jurisdiction in the Constitution in cases involving states and cases involving ambassadors.

When Congress passes a law and creates a new court, the law gives that court jurisdiction in certain areas. By giving the courts authority, the statute becomes a source of judicial power.

The last source of power is the prestige of the court. When a court makes a decision, it has no authority to force an individual, group or the government to abide by that decision. It relies on voluntary compliance with the decision because the court said it was the right thing to do. If the prestige of the court is high, people will voluntarily go along with the court decision.

There are also limits on the power of the courts. Limitations include all of the sources of power and some other limitations.

The Constitution provides a source of power for the Judicial Branch but it also places limits on that branch. The Constitution includes checks and balances to keep any one branch of government from becoming too powerful. These checks and balances limit the power of the courts. The Constitution also allows Congress to control the appellate jurisdiction of the courts. Appellate jurisdiction means the power of the courts to review decisions of lower courts and decide if the lower court properly applied the law in the cases. By allowing Congress to control the appellate jurisdiction, the Constitution limits the power of the courts.

Statutes may also limit the power of the courts. Congress controls the size of the courts. If Congress decides to reduce the size of the court, justices cannot be appointed to the courts because a vacancy no longer exists. Congress can also, by law, eliminate the inferior federal courts that Congress has established. Being practical, however, the people of the United States would probably not allow Congress to eliminate courts that have existed for many years.

The prestige of the courts also limits the power of the courts. If the prestige of the courts is low, people will not voluntarily abide by the decisions of that court. The court must then rely on someone else to implement the decision. If no agency helps the court, the decision is ignored.

There are other limits on the power of the courts. The judges cannot initiate a suit themselves. If they want to make a decision in a case, someone must bring the case to them for action. When they do make a decision, the decision applies only to that case heard by the court. Courts may also impose limits on themselves such as deciding how many judges must listen to arguments in a case for the court to make a decision. Precedence may also be a limit on the power of the court. Precedence means basing decisions on past decisions. By using precedence, law becomes predictable. This is not an absolute limit on the court. Precedence may be changed.

The courts, particularly the Supreme Court, cannot hear all of the cases that people would like them to hear. There is simply not enough time. The Supreme Court decides what cases it will hear. The Supreme Court has established three types of cases that they will normally reject and not hear.

Political questions are cases that involve a dispute between the Executive and Legislative Branches or a dispute within a branch of government. These types of cases put the Supreme Court in the position of siding with one branch against the other or interfering with the internal affairs of another branch.

Friendly suits are cases in which there is no real adversity between the parties in the suit. Friendly suits are cases in which the parties want to determine the extent of a law, not the constitutionality of the law. In these types of cases, both sides of the law in question are not argued because there is no real adversity.

The United States Supreme Court also will not give advisory opinions. An advisory opinion is an opinion on the constitutionality of a law before Congress passes the law. Arguments are not made for both sides of the law in an advisory opinion. The court only has the proposed legislation to read. This places the court in an awkward position. If Congress passes the law based on a favorable opinion by the court and a later challenge to the law shows good reason for the law to be unconstitutional, the United States Supreme Court looks as though it cannot decide if a law is proper or not.

Levels of the Federal Court System

The federal court system has three levels.


The United States District Courts make up the lowest level in the federal court system. These courts were created by Congress using their authority in Article III of the Constitution. District courts have only original jurisdiction. District court judges are appointed by the President, confirmed by the Senate and serve for life. The district courts are the only courts in the federal system that use juries. These courts use federal grand juries to decide if there is enough evidence to have a trial and a federal trial jury to decide if an individual is guilty or innocent.

The United States Courts of Appeal make up the next level in the federal court system. These courts have only appellate jurisdiction. Each court of appeals has three judges who sit as a panel and decide the outcome of cases. The judges are appointed by the President, confirmed by the Senate and serve for life. When the courts of appeal hear cases, they are not concerned with the facts in a case. A jury has already determined the facts in the case. The courts of appeal are concerned about proper application of the law and the constitutionality of laws.

The highest level in the federal court system is the United States Supreme Court. The Supreme Court is the only court in the federal system that has both original and appellate jurisdiction. The Supreme Court has nine justices who are appointed by the President, confirmed by the Senate and serve for life. Eight of the justices are associate justices; the ninth justice is the chief justice. The chief justice is not necessarily the individual who has been on the Supreme Court the longest. He is simply a justice who acts as the coordinator for the Supreme Court.

Special Federal Courts

Besides the levels of the federal court system, Congress has also created several special courts. Some of these special courts were created by Congress using their authority in Article III to create inferior federal courts. Courts created using the authority in Article II are called Article III or Constitutional Courts.  Other special courts were created using the power given Congress in Article I of the Constitution to regulate different areas.  These courts are called Article I or Legislative Courts.

According to Article II of the Constitution, all federal judges (including special court judges) are appointed by the President and must be confirmed by the Senate before taking their positions.  Article III says that judges will hold office "during good behavior" or for life.  Article I says nothing about the terms of office for federal judges so if Congress creates an Article I or Legislative Court, Congress sets the term of office for that position.

An example of an Article III court is the Court of International Trade. This court has only appellate jurisdiction and hears appeals of decisions made by customs agents and appeals of decisions involving trade and tariff. The judges are appointed by the President, confirmed by the Senate and serve for life.

The Foreign Intelligence Surveillance Court is an Article III court that hears only requests for electronic eavesdropping on foreign agents. The court has only original jurisdiction. This court has no permanently assigned judges but uses judges from the United States district courts and courts of appeal.

An example of an Article I court is the Bankruptcy Court. In Article I, Section 8, Congress has the authority to establish uniform laws on bankruptcy. To insure equal justice under these laws, Congress has created Bankruptcy Courts. These courts hear only bankruptcy cases and have original jurisdiction in these cases. The judges are appointed by the President, confirmed by the Senate and serve 14 year terms of office.

The other major Article I court created by Congress is the Court of Military Appeals. This court has three civilian judges appointed by the President, confirmed by the Senate and serve 15 year terms of office. They have only appellate jurisdiction and hear appeals of the decisions of military courts martial--the military equivalent of a trial.

The major difference between the Article I courts and the Article III courts is the term of office for the judges. Article I court judges have specific terms of office while Article III judges are appointed for life.

Appointment and Removal of Judges

Article II of the Constitution says that the President appoints all federal judges “with the advice and consent of the Senate.

All federal judges must be appointed by the President.

In Articles I and II of the Constitution, there are age, citizenship and residency requirements for members of Congress and the President. There are no constitutional qualifications to be appointed as a federal judge.

Although there are no qualifications in the Constitution, there are several qualifications that the President will research before he appoints a federal judge.

Today, the President will expect a federal judge to have a law degree before he appoints that person. Because the law is so complex today, a law degree will enable the judge to better understand the provisions and ramifications of the law.

The President will also expect the person to have some experience as a judge at the state or local level. The President wants to be aware of the judicial philosophy of the individual before making the appointment. The judicial philosophy determines how the individual believes the Constitution should be interpreted. If an individual believes the Constitution should be interpreted based on the words in the document, he or she is a strict constructionist. The strict constructionist limits his or her decisions to the words in the document. If an individual believes the interpretation of the Constitution should go beyond the words in the document and be based on the concepts or ideals expressed by the document, that person is a judicial activist.The judicial activist grabs the Constitution and runs with it. He or she looks beyond the words in the document to determine what concepts were intended when the Constitution was written. The President wants to know which method of interpreting the Constitution will be used by a judge before he appoints the individual.

The sex and the race of individuals are also considered by the President. If women and minorities are not appointed to federal judgeships, these groups may believe that the President does not believe they are capable of handing the duties and they may vote against the President in the next election. While race and sex are consideration, the individual must be capable of performing the tasks associated with the position. Women and minorities are qualified to be federal judges. Once they are determined to be qualified, then the potential judge’s race or sex may help him or her get appointed.

Once the President appoints an individual to the federal judgeship, that person must be confirmed or approved by the Senate. The Senate will also look at the same unofficial qualifications as the President. Most federal judges, once they are appointed and confirmed, will serve for life. The senators also want to know what to expect of the new judges.

Once the federal judge has been appointed by the President and confirmed by the Senate, there are few ways to remove a judge from office.

A judge may resign or retire at any time. In some cases, the retirement system encourages judges to retire so younger judges who are more attuned to the general population of the United States can be appointed. Becausefederal judges--particularly Supreme Court judges--are so powerful, these incentives are seldom effective.

A second method that may be used to remove a federal judge is through the process of impeachment. A federal judge, like members of the Executive Branch, may be impeached by the House of Representatives, tried by the Senate and, if convicted, be removed from office.

Other than these two methods, it is impossible to remove a federal judge from office. If he or she desires, they may continue to make decisions until their death or, in the case of Article I judges, until their term of office expires.

Getting Cases to the Federal Courts

The number of federal courts is limited and they cannot hear all of the cases in which they are asked to make decisions.

At the district court level, the cases heard are usually a result of negotiations between state and federal officials. When an individual commits a crime that could cause the individual to be tried in a federal court, the individual usually breaks both state and federal laws. Since the individual may be tried in either state or federal courts, negotiations usually decide which court will decide the case. The fact that both levels of government have jurisdiction is referred to as dual sovereignty.

The federal courts of appeal and the Supreme Court can also use a writ of certiorari to hear a case. This is a court order that pulls up the records from a lower court so the court of appeal or Supreme Court can review the decision.

If a court of appeal believes that the case before it is too difficult for the judges to make a decision or too important for the case to be delayed while they make a decision, they may send a case directly to the Supreme Court. This process, called certification, is not used very often.

The process of appeal may be used to get cases to the Supreme Court. To get a case to the Supreme Court on appeal, one of three conditions must be met. First, a federal court must declare a state or federal law unconstitutional. The second condition is when a state supreme court declares a federal law, executive order or treaty unconstitutional. Finally, if a state supreme court upholds a state law challenged as unconstitutional, that decision may go to the Supreme Court on appeal.

The final method of getting a case to the Supreme Court is through the original jurisdiction cases given to the Supreme Court in the Constitution.

Types of Opinions

When the United States Supreme Court or courts of appeal make a decision in a case, the justices publish the decision so everyone who has an interest in the decision can review that decision. There are three types of opinions that may be written.

The side that has the most judges who support that side is the majority. This group presents the majority opinion. They tell the public why the case was decided the way it was.

The side that had the fewest judges supporting it is the minority. This group of judges will write a minority opinion or dissenting opinion telling why they believe the case should have been decided differently.

Sometimes, a judge may agree with the majority or minority opinion but not with the rationale or reasoning used to decide the case. In this instance, the judge may write a concurring opinion. The concurring opinion will explain why the judge agrees with the minority or majority and explain his or her reasoning in supporting that side.

If you plan to use a decision to support your case, it is important to read all of the decisions in a case. Sometimes, a judge may change his or her mind on an issue. A judge may die or resign and the replacement judge might be enough to cause the minority opinion to become the majority opinion in your case. It is also important to know not only the opinions that support your case but the opinions that might be used against you so you will be better prepared for court.