Having exhaustively labored through the drafting of the definition, powers and responsibilities of the Executive and Legislative branches, the
Constitutional Convention set to work on the Judicial Branch. It is sparsely defined in Article III, and it is by far the shortest of the articles forming the three branches of the government-to-be, although various provisions of law appear throughout the Constitution. Article III, Section 1 This quite simply states: “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. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.” In some respects, one comes away from reading this section with the distinct impression that the convention delegates had grown weary of the task at hand and debating every word of this remarkable document, and had chosen a less arduous approach to defining the Judicial Branch. Having thrown off the yoke of tyranny, the Framers now found themselves drafting a unique document based on concepts deep and far-reaching. They can be forgiven for defining the Supreme Court and then passing the ball to Congress to shape the rest of the Judicial Branch, which it did, much of it in 28 U.S.C. (which stands for the U.S. Code, which is the repository of all federal laws passed by Congress. Executive Orders submitted by the president go into The Federal Register). Article III. Section. 1 casts upon Congress the duty of clearly defining the remainder of this branch, as if the Framers were either affected by the heat of the summer of 1787 or had begun to run dry of new ideas. In fact, Article III is not unlike a platypus in that elements of law from a number of sources were put into it. Some concepts derive from the Framers previous master, Great Britain, while other almost alien concepts wholly apart and extremely generous to the justices were penned in, as well. It swerved sharply away from the power-to-the-people model they had been following, and denied us the ability to select who would sit in judgement of us. In addition, unlike the remedy of voting someone out of the presidency and legislature for bad governance, they granted terms a lifetime long to all federal justices and judges. In the process, they made it virtually impossible for the people to rid themselves of federal judges or justices, in particular activist justices who have in recent decades, made law and policy from the bench, a power the Constitution did not grant. Impeachment is the only recourse the people have to drive a rogue from the bench, and getting the House to vote for impeachment and the Senate to convict would not be an easy thing to do. Several prominent justices and jurists have opined that a writ of scire facias could be filed with the federal courts and that would permit the removal of a justice or federal judge without impeachment. Unfortunately, Congress has abolished that writ. The term scire facias stems from English law, and in Latin means “know the causes,” which could be used under other legal precepts to vacate grants or patents. It’s now a moot point anyway. All we have is impeachment, although there are rules that require some federal judges to step down at age 80. We will be discussing that in a future lecture. Of greatest fascination is the phrase, “shall hold their Offices during good behaviour (the British spelling of the word).” It’s this phrase that gives the Supreme Court justices their seat on the bench for life. Here again, the Framers seem to have had a momentary lapse of judgement. Giving anyone in government a position for life is a monumental error. While this is argued back and forth, no one has been able to adequately explain and justify the term length. Should a justice begin to write whacky decisions or develop Alzheimer’s Disease, he or she will have to be impeached if they refuse to resign. While pressures can be brought to bear by the other justices to encourage a resignation, impeachment is the only legal way out.
The Judiciary Branch
Responding to the burden placed upon it, Congress has designed a Judicial Branch that goes several layers deep. The Supreme Court sits at the apex and Congress has added courts beneath it at various levels and a number of types of courts tasked with different responsibilities, all at the federal level. Working our way up from bottom to top, we have Federal District Courts, each of which covers a group of states or regions. Appeals from ruling in courts at that level are heard by the Federal Circuit Courts of Appeals. Appeals from rulings here go to the Supreme Court. Appealing to the Supreme Court requires a writ of certiorari, which is in essence a notice of request for the high court to hear an appeal. The Supreme Court, however, has been granted the power to cherry pick what cases it will hear, much to the consternation of people who feel their cases merit a hearing. If the Supreme Court was mandated by the Constitution to hear the cases of all appellants filing writs of certiorari, the case backlog would be unmanageable, thus the need to allow the high court to choose which cases it will hear. They often choose cases that involve the entire nation, but have been known to make some unusual choices. There is an unspoken court custom that has the Supreme Court reversing rulings handed down up to 30 years prior. That is giving those who oppose abortion, which now comprises more than half the country according to various polls, hope that the court will hear and overturn Roe v. Wade. All of the courts mentioned can hear both civil and criminal cases. But there are other courts that are more specialized. There are Federal Bankruptcy courts, U.S. Tax Courts and the Court of International Trade, which addresses international trade and customs cases. Then there is the lesser known United States Court of Federal Claims. It hears a fairly broad range of cases, among them, any claim for monetary damages against the U.S., the unlawful seizure of personal property by the federal government and issues involving federal contracts, among other cases. The three most important courts in order of importance are the federal District Court, the Federal Circuit Court of Appeals and the Supreme Court. The lowest of the federal courts is the Federal Bankruptcy Court. Federal District Court There are currently 89 Federal District Courts scattered throughout the 50 states, and that number rises to 94 with the addition of district courts located in the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico and the Virgin islands. 28 U.S.C. § 133 : US Code – Section 133: defines the appointment and number of district judges. Section (a) provides that: The President shall appoint, by and with the advice and consent of the Senate, district judges for the several judicial districts. (See Appendix A for the number of judges per court within the various states.)
All federal judges and the nine justices on the Supreme Court are nominated by the president, and must undergo the scrutiny of the Judiciary Committee in the Senate. There are numerous vacancies that have been backing up due in large part to serious ideological concerns. Most of the nominations made come from senators and members of the House who belong to the president’s party for the most part. Nominees, especially for the Supreme Court, undergo considerable scrutiny and background checks and must complete in-depth and complex form which the senators on the committee consider. If anyone of importance (another member of the Senate or House or someone already in the federal judiciary) opposes a nomination, they are often asked to appear before the committee to testify as to their objections. The most famous case of this occurred during consideration of Clarence Thomas when Anita Hill, who had been a clerk for Thomas, alleged sexual abuse. While her testimony seemed damning, it was placed aside in the end, and Thomas was confirmed and sworn as a member of the Supreme Court. See Appendix A for a list of Federal District Courts across the country. Federal Circuit Courts of Appeals When cases are heard by the Federal District Courts, the loser (and sometimes the winner who opposes a part of the decision handed down) of the case usually appeals to the Federal Circuit Courts of Appeal. There are 13 Federal Circuit Courts of Appeal, governed by 28 U.S.C. § 41 : US Code – Section 41: Which addresses the number and composition of circuits. The smallest of these is the First Circuit with six judgeships, and the largest by far is the Ninth Circuit Court of Appeals with 28 judgeships. The thirteen Judicial Circuits of the United States are: District of Columbia. First Circuit Court of Appeals, which covers, Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island. Second Circuit Court of Appeals, which covers, Connecticut, New York, Vermont. Third Circuit Court of Appeals, which covers, Delaware, New Jersey, Pennsylvania, Virgin Islands. Fourth Circuit Court of Appeals, which covers, Maryland, North Carolina, South Carolina, Virginia, West Virginia. Fifth Circuit Court of Appeals, which covers, District of the Canal Zone, Louisiana, Mississippi, Texas. Sixth Circuit Court of Appeals, which covers, Kentucky, Michigan, Ohio, Tennessee. Seventh Circuit Court of Appeals, which covers, Illinois, Indiana, Wisconsin. Eighth Circuit Court of Appeals, which covers, Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, South Dakota. Ninth Circuit Court of Appeals, which covers, Alaska, Arizona, California, Idaho, Montana, Nevada, Oregon, Washington, Guam, Hawaii. Tenth Circuit Court of Appeals, which covers, Colorado, Kansas, New Mexico, Oklahoma,Utah, Wyoming. Eleventh Circuit Court of Appeals, which covers, Alabama, Florida, Georgia. Federal All Federal judicial districts.
When appeals are filed, due to the backlog of cases and other considerations, it is customary to have three judges chosen by an administrative judge to hear the appeal and rule on it rather than involving all of the judges on the bench of a Circuit Court of Appeals. If the appellant (the person filing the appeal—the other party to the appeal is called the appellee) then has two choices. He or she can ask all of the judges on the court to hear their appeal or they can file a writ of certiorari to have the case heard by the Supreme Court. Depending on how important the issue is to the nation, the high court meets in periodic conferences to decide which cases they will take. Because certiorari is granted to so few appellants, if the case doesn’t have national implications, he or she will appeal to the entire Federal Circuit Court of Appeals, which then assembles all of its judges to her the pleadings in the case. Of all of the Federal Circuit Courts of Appeal, the ones conservative litigants (those who sue or are sued) try to avoid having their cases heard by the Ninth Circuit Court. It has by far the most liberal judges and, as a result, is the most overturned court in the country.
Appendix A Federal District Courts
Alabama: Northern 7, Middle 3, Southern 3 Alaska 3 Arizona 12 Arkansas: Eastern 5, Western 3
California: Northern 14, Eastern 6, Central 27, Southern 13 Colorado 7 Connecticut 8 Delaware 4
District of Columbia 15 Florida: Northern 4, Middle 15, Southern 17 Georgia: Northern 11, Middle 4, Southern 3 Hawaii 3 Idaho 2 Illinois: Northern 22, Central 4, Southern 4 Indiana: Northern 5, Southern 5 Iowa: Northern 2, Southern 3 Kansas 5 Kentucky: Eastern 5, Western 4, Eastern and Western 1 Louisiana: Eastern 12, Middle 3, Western 7 Maine 3 Maryland 10 Massachusetts 13 Michigan: Eastern 15, Western 4 Minnesota 7 Mississippi: Northern 3, Southern 6 Missouri: Eastern 6, Western 5, Eastern and Western 2 Montana 3 Nebraska 3 Nevada 7 New Hampshire 3 New Jersey 17 New Mexico 6 New York: Northern 5, Southern 28, Eastern 15, Western 4 North Carolina: Eastern 4, Middle 4, Western 4
North Dakota 2 Ohio: Northern 11, Southern 8 Oklahoma: Northern 3, Eastern 1, Western 6, Northern, Eastern, and Western 1 Oregon 6 Pennsylvania: Eastern 22, Middle 6, Western 10 Puerto Rico 7 Rhode Island 3 South Carolina 10 South Dakota 3 Tennessee: Eastern 5, Middle 4, Western 5 Texas: Northern 12, Southern 19, Eastern 7, Western 13 Utah 5 Vermont 2 Virginia: Eastern 11, Western 4 Washington: Eastern 4, Western 7 West Virginia: Northern 3, Southern 5 Wisconsin: Eastern 5, Western 2 Wyoming 3.