# Chapter 14 ## 14.1 U. S. Courts: Purpose and Function Image 14.1 Protesters Advocate for Same-Gender Marriage The Marriage Equality Act vote in Albany, New York, 2011 (left), was just one of a number of cases testing the constitutionality of national and state law in the years leading up to the 2015 ruling on marriage equality and was a key issue at Seattle’s 2012 Pride parade (right). (Credit: OpenStax; left: modification of work by “Celebration chapel”/Wikimedia; Credit right: modification of work by Brett Curtiss). Chart 14.1 Learning Objectives on Courts and Civil Liberties The U. S. courts are set up to achieve two significant functions: 1) as part of the system of checks and balances, they protect the sanctity of the U. S. Constitution from breaches by the other branches of government, and 2) they protect individual liberties and rights against societal and governmental oppression. The Basic Structure of the Judicial Branch At the national level, nine Supreme Court justices are nominated by the president and confirmed by the Senate for lifetime appointments. Hence, populist control over them is indirect at best, but this provides 444 the courts with needed independence. Court power is confined to interpreting the law rather than making the law, as law-making power resides with the legislative branch. Under the Articles of Confederation, there was no national judiciary. The Constitution addressed this need in Article III, which addresses “the judicial power of the United States” and is the shortest and least detailed of the three articles creating branches of government. This article calls for the creation of “one supreme Court,” establishes the Court’s jurisdiction (its authority to hear cases and make decisions) and notes the types of cases the Court may hear. It distinguishes which are matters of original jurisdiction and which are for appellate jurisdiction. The Constitution also limits the Supreme Court’s original jurisdiction to those rare cases of disputes between states or between the United States and foreign ambassadors or ministers. So, for the most part, the Supreme Court is an appeals court, operating under appellate jurisdiction and hearing appeals from the lower courts. Under original jurisdiction, a case is heard for the first time, whereas under appellate jurisdiction, a court hears a case on appeal from a lower court and may change the lower court’s decision. Under the Constitution, the development of the judicial system and the creation of the lower courts were left in the hands of Congress. In explaining the importance of an independent judiciary separated from the other branches of government, Hamilton said “interpretation” was a key role of the courts as they seek to protect people from unjust laws.[1] But he also believed “the Judiciary Department” would “always be the least dangerous” because “with no influence over either the sword or the purse,” it had “neither force nor will, but merely judgment.”[2] The courts were to make decisions and write opinions–not take action to write laws. With no control over how those decisions would be implemented and no power to enforce their choices, they could exercise only judgment based upon the Constitution and the law. Chart 14.2 Text from Federalist Paper No. 78 The first session of the first U.S. Congress laid the framework for today’s national judicial system, establishing in the Judiciary Act of 1789, the basic structure of the judicial branch. Although legislative changes over the years have altered it, the basic structure of the judicial branch remains as it was set early on. At the lowest level district courts, this is where federal cases involving national laws are tried, witnesses testify, and evidence and arguments are presented. A losing party unhappy with a district court decision may appeal to the U. S. courts of appeal, where the decision of the lower court is reviewed—appellate jurisdiction—only if an identifiable procedural error or an error in applying the law is evident under the U. S. Constitution. Still further appeal to the U.S. Supreme Court is possible; but, of the thousands of petitions for appeal, the Supreme Court will typically hear fewer than one hundred each year.[3] Chart 14.3 Defining Original and Appellate Jurisdiction This public site maintained by the Administrative Office of the U.S. Courts provides detailed information from and about the judicial branch. How did the new judiciary get started? Starting in New York in 1790, the early Supreme Court focused on establishing its rules and procedures. It took years for the Court to establish its interpreter position, and it faced several setbacks on the way. In their first case of significance, Chisholm v. Georgia (1793), the justices ruled that the federal courts could hear cases brought by a citizen of one state against a citizen of another state, and that Article III, Section 2, of Image 14.2 Photo of the Exterior of the Supreme Court Building the Constitution did not protect the states from facing in Washington, D.C. such an interstate lawsuit.[4] The Supreme Court building in Washington, DC, was not completed until 1935. Engraved on its marble front is the motto “Equal Justice Under Law,” while its east side says, “Justice, the Guardian of Liberty.” The decision was almost immediately overturned by the (Credit: US Courts) Eleventh Amendment, passed by Congress in 1794 and 446 ratified by the states in 1795. In protecting the states, the Eleventh Amendment put a prohibition on the courts by stating, “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” It was an early hint that Congress had the power to change the jurisdiction of the courts as it saw fit–checks and balances in action. In an atmosphere of perceived weakness, the first chief justice John Jay, an author of The Federalist Papers and appointee of President George Washington, resigned his post to become Governor of New York. He later declined President John Adams’s offer of a subsequent term on the Supreme Court.[5] In fact, the Court might have remained in a state of what Hamilton called its “natural feebleness” if not for the man who filled the vacancy Jay had refused—the fourth chief justice, John Marshall. Often credited with defining the modern court, clarifying its power, and strengthening its role, Marshall served in the chief’s position for thirty-four years. One landmark case, Marbury v. Madison, during his tenure changed the course of the judicial branch’s history. In 1803, the Supreme Court declared for itself the power of judicial review, a power that Hamilton referred to in Federalist #78 but is not expressly mentioned (enumerated) in the Constitution. Judicial review is the power of the courts, as part of the system of checks and balances, to look at actions taken by the other branches of government and the states and determine whether they are constitutional. If the courts find an action to be unconstitutional, it becomes null and void. Judicial review was Image 14.3 Portraits of John Jay and John Marshall established in the Supreme Court “Life and Legacy.” The John Marshall Foundation. http://www.johnmarshallfoundation.org (March case Marbury v. Madison when, for 1, 2016). John Jay (a) was the first chief justice of the Supreme Court but resigned his post to become governor of New York. John Marshall (b), who served as chief justice for thirty-four years, the first time, the Court declared an is often credited as the major force in defining the modern court’s role in the U.S. governmental act of Congress to be un system. (Credit: US Courts; OpenStax included image) constitutional.[6] Marshall defined this power as the “very essence of judicial duty,” and it continues today as one of the most significant aspects of judicial power. Judicial review lies at the core of the court’s ability to check the other branches of government—and the states. Since Marbury, the power of judicial review has continually expanded. The Court not only rules on actions of Congress and the president as unconstitutional, but it extended its power to include review of state and local actions. Judicial review is not confined to the Supreme Court but is also exercised by the lower federal courts and even the state courts. Any legislative or executive action at the federal or state level inconsistent with the U.S. Constitution or a state constitution can be subject to judicial review.[7] ## MARBURY V. MADISON (1803) The Supreme Court found itself in the middle of a dispute between the outgoing presidential administration of John Adams and that of incoming president (and opposition party member) Thomas Jefferson. It was an interesting circumstance at the time, particularly because Jefferson and the man who would decide the case—John Marshall—were themselves political rivals. President Adams had appointed William Marbury to a position in Washington, DC, but his commission was not delivered before Adams left office. Marbury petitioned the Supreme Court to use its power under the Judiciary Act of 1789 and issue a writ of mandamus (mandate, command, compel an action) to force the new president’s secretary of state James Madison to deliver the commission documents. Madison refused. A unanimous Court under the leadership of Chief Justice John Marshall ruled that although Marbury was entitled to the job, the Court did not have the power to issue the writ and order Madison to deliver the documents, because the provision in the Judiciary Act giving the Court that power was unconstitutional.[8] Perhaps Marshall feared a confrontation with the Jefferson administration and thought Madison would refuse his directive anyway. In any case, his ruling shows an interesting contrast in the early Court. The Court declined a power—issuing a writ of mandamus—given to it by Congress; however, it laid the foundation for legitimizing a much more important power—judicial review. Marbury never got his commission, but the Court’s ruling in the case has become more significant for the precedent it established. As the first time the Court declared and act of Congress unconstitutional, it established the power of judicial review—a key power enabling the judicial branch to remain a powerful check on the other branches of government. As Marshall put it, “it is emphatically the province and duty of the judicial department to say what the law is.”[9] Even with judicial review in place, the courts do not always stand ready to throw out actions of the other branches of government. The United States has a common law system in which law is largely developed through binding judicial decisions. These decisions build upon one another over the decades and centuries, informing decisions made by the courts today. The U. S. Court System and Public Policy Making In their role as policymakers, Congress and the President tend to consider broad questions of public policy and their costs and benefits. The courts consider specific cases with narrower questions, enabling them to focus more closely than other government institutions, in their role of interpreting the law. While the legislature can make policy through statute/law, and the executive can implement and enforce policy through regulations and administration based upon constitutionally delegated power or legislative authority, the judicial branch can indirectly influence policy through its rulings and interpretations. Thus, as cases are brought to the courts, court decisions shape policy outcomes through interpretation of these laws and the U. S. Constitution. Chart 14.4 Policy Making and the Courts Diagram Consider health care, for example. In 2010, President Barak Obama signed into law the Patient Protection and Affordable Care Act (PPACA), a statute to change the nation’s healthcare system. The goal was providing more widely attainable and affordable health insurance, and “Obamacare” was hailed by some and soundly denounce by others. People who opposed the law and understood a congressional repeal would not happen eminently sought help in the courts. They challenged the constitutionality of the law in National Federation of Independent Business v. Sebelius, hoping the Supreme Court would overturn the PPACA.[10] The practice of judicial review enabled the law’s critics to exercise this opportunity, even though their hopes were dashed by a narrow 5-4 margin when the Supreme Court upheld the law as an extension of Congress’ power to tax. Since the 2012 decision, the ACA has continued to face challenges, the most notable of which is a setback in 2014, when the Court ruled in Burwell v. Hobby Lobby that, for religious reasons, some for-profit corporations could be exempt from the requirement that employers provide insurance coverage of abortifacients for their female employees.[11] The ACA attained a victory in King v. Burwell when the Court upheld the ability of the federal government to provide tax credits for people buying health insurance through an exchange created by the law.[12] With each ACA case, the Supreme Court served as the umpire, upholding the law and some of its provisions but ruling some aspects unconstitutional. Supporters and opponents claim victory, while the Court further defines and fine-tunes the law—thus impacting public policy in this area. Chart 14.5 SCOTUS Rulings 2008 to 2019 from the Austin American Statesman, Louis Jacobson, PolitiFact.com, 24 June 2021 and SCOTUSBlog As an interesting exercise, SCOTUSBlog provided information illustrating Supreme Court rulings where the vote was 9-0 ranged as high as sixty-six present in 2013. 9-0 rulings are less rare than most people believe, but it is important to remember that most SCOTUS decisions involve technical rather than controversial or dramatic issues. 450 Protecting Individual Rights Against Societal and Governmental Oppression As part of checks and balances, courts protect the Constitution from breaches by the other branches of government, and they protect individual rights against societal and governmental oppression. The purpose of the courts, outlined in the preamble to the Constitution, is to establish justice. This system of justice, to support the rules made by citizens via their representatives, is to provide restitution of some form for individuals residing in this country who are damaged or harmed by other individuals or government itself, which attempts to take away their life, health, or property. While the U.S. Supreme Court and state supreme courts exert power over many individuals when reviewing laws or declaring acts of other branches unconstitutional, they become particularly important when a single individual or group comes before them with an alleged wrong. A citizen or group that feels mistreated may approach a variety of institutional venues in the U. S. system for assistance in changing policy or seeking support. Organizing protests, garnering special interest group support, and changing laws through the legislative and executive branches are all possible; but, an individual is more likely to find the courts especially well-suited to analyzing the particulars of his/her case. The judiciary is arguably the branch where the individual has the best chance to be heard and where the Constitution provides guarantees that individual action against the life, liberty and property of another will be reviewed in a fair manner. In a court case, it is one party versus the other. It is up to an impartial person or group, such as the judge or jury, to determine which party prevails. The federal court system is most often called upon when a case touches on constitutional rights. Over time, the courts have made many decisions broadening the civil rights and liberties of individuals. In this same vein, the courts are key interpreters of the U. S. Constitution, continuously interpreting it and applying it to modern times and circumstances. Certainly, when the Bill of Rights first declared that government could not abridge freedom of speech, its framers could never have envisioned Facebook™ or any other modern technology. Freedom of speech, for example, just like many constitutional concepts, has come to mean different things to different generations and the courts have designed the lens through which we understand the Constitution in modern times. It is often said that the Constitution changes less by amendment and more by interpretation. Rather than collecting dust on a shelf, the 230-year-old document has come with us into the modern age. ## QUESTIONS TO CONSIDER 1. How do courts make decisions? Show Answer they follow established legal procedure; the rely on precedent; the use the Constitution; etc. 2. How do they exercise their power to protect individual rights? Show Answer courts may preempt states’ slower decision making processes to intervene on behalf of individuals 3. What distinguishes the Supreme Court from all others? Show Answer SCOTUS has both appellate and original jurisdiction; specifically granted power as the highest court 4. Why do you believe the Constitution’s framers chose lifetime terms? Show Answer personal opinion; debate selection/appointment versus election ## TERMS TO REMEMBER appellate jurisdiction–where the decision of the lower court is reviewed due to a legal or procedural error Article III–establishes a third branch of government, the judiciary checks and balances–limitations placed on governmental power; separation into branches that oversee one another judicial review–the power of the courts to review actions taken by the other branches of government and the states and to rule on whether those actions are constitutional judiciary–judicial authority, courts, judges, justices Judiciary Act of 1789–expands on Article III with details about additional federal/national courts, court structure and operations jurisdiction–the power of a court to hear a case on appeal or to hear a case for the first time Marbury v. Madison–the 1803 Supreme Court case that established the courts’ power of judicial review and the first time the Supreme Court ruled an act of Congress to be unconstitutional original jurisdiction–where federal cases involving national laws are tried, witnesses testify, and evidence and arguments are presented Supreme Court–highest federal/national court; 8 justices and 1 chief justice; largely discretionary power to hear cases on appeal; limited original jurisdiction writ of mandamus–paperwork compelling an action, court requires a specific action 1. Alexander Hamilton, Federalist #78, at http://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-78. ↵ 2. Alexander Hamilton, Federalist #78, at http://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-78. ↵ 3. "The U.S. Supreme Court." The Judicial Learning Center. http://judiciallearningcenter.org/the-us-supreme-court/ (March 1, 2016). ↵ 4. Chisholm v. Georgia, 2 U.S. 419 (1793). ↵ 5. Associated Press. "What You Should Know About Forgotten Founding Father John Jay," PBS Newshour. July 4, 2015. http://www.pbs.org/newshour/rundown/forgotten-founding-father. ↵ 6. Marbury v. Madison, 5 U.S. 137 (1803). ↵ 7. Stephen Hass. "Judicial Review." National Juris University. http://juris.nationalparalegal.edu/(X(1)S(wwbvsi5iswopllt1bfpzfkjd))/JudicialReview.aspx (March 1, 2016). ↵ 8. Marbury v. Madison, 5 U.S. 137 (1803). ↵ 9. Marbury v. Madison, 5 U.S. 137 (1803). ↵ 10. Ibid. 11. National Federation of Independent Business v. Sebelius, 567 U.S.__(2012). 12. Burwell v. Hobby Lobby, 573 U.S.__(2014). 13. King v. Burwell, 576 U.S.__(2015). LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY - American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution ## 14.2 U. S. Courts: Structure and Procedure Image 14.4 Interior Photo of 5th Circuit Court's Courtroom Inside the United States Court of Appeals for the Fifth Circuit (Credit: United States Courts at http://www.ca5.uscourts.gov/). Chart 14.6 Learning Objectives on How Courts Function The judiciary is multi-layered with courts at both the national, state, county, and local levels. Adding complexity, the court systems sometimes intersect and overlap each other, and no two states are exactly alike in court structure. The organization of state courts does not perfectly mirror the more clear-cut system found at the federal level.[1] Cases heard by the U.S. Supreme Court come from two primary pathways: (1) the circuit courts, or U.S. courts of appeal (after the cases have originated in the federal district courts), and (2) state supreme courts (when there is a substantive constitutional qustion in the case). Precedent set by each ruling (decision of the judges or justices), particularly by the Supreme Court, builds on principles set by earlier cases and frames the ongoing decisions of the courts. Reliance on precedent has enabled the federal courts to operate for the most part with logic and consistency helping validate their role as the key interpreters of the Constitution and the law—a legitimacy particularly vital in the United States where citizens do not elect federal judges and justices but are subject to their rulings. The U.S. court system operates on the principle of stare decisis (let the decision stand) meaning today’s decisions are based largely on rulings from the past, and tomorrow’s rulings rely on what is decided today. Consistency of precedent ensures greater stability in law and constitutional interpretation contributing to the court system’s legitimacy. As former Supreme Court justice Benjamin Cardozo summarized it years ago, “Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.”[2] The Supreme Court decides based upon numerous factors. If the justices affirm a lower court’s decision, they declare it valid and allow it to stand (stare decisis).[3] When an appellate court sends a case back Chart 14.7 Diagram Illustrating Structure of U.S. Courts to a lower court for further proceedings the decision is to remand. The lower court is often required to do something differently, but that does not always mean the court’s final decision will change.[4] When an appellate court reverses (sets aside) the decision of a lower court because of an error, it is a reversal, which is often followed by a remand. For example, if the defendant argued on appeal that certain evidence should not have been used at trial, and the appeals court agrees, the case will be remanded in order for the trial court to reconsider the case without that evidence. [5] There are ninety-four U.S. district courts in the fifty states and U.S. territories, of which eighty-nine are in the states (at least one in each state). The others are in Washington, DC; Puerto Rico; Guam; the U.S. Virgin Islands; and the Northern Mariana Islands. These are the original jurisdiction trial courts of the national system. No district court crosses state lines, and a single judge oversees each one. Some cases are heard by a petit jury (jury of peers deciding on the credibility of evidence presented at trial) and some are bench trials (judge acts as both judge and jury based on both law and fact). There are thirteen U.S. Courts of Appeal, or circuit courts of appellate jurisdiction, eleven across the nation and two in Washington, DC (the DC circuit and the federal circuit). Each court is overseen by a rotating panel of three judges who review the rulings of the trial (district) courts within their geographic circuit. These courts, established under Article III, provide for life-time appointments for judges. Chart 14.8 Map of U.S. Circuit Courts of Appeals and District Courts There are thirteen judicial circuits: eleven in the geographical areas marked on the map and two in Washington, DC. (Credit: U S Courts; http://www.uscourts.gov/sites/default/files/u.s._federal_courts_circuit_map_1.pdf) Other federal trial courts exist with specialized jurisdictions–Court of International Trade, Court of Federal Claims, and U.S. Tax Court. Specialized federal appeals courts include the Court of Appeals for the Armed Forces and the Court of Appeals for Veterans Claims. Cases from any of these courts may also be appealed to the Supreme Court, although that result is very rare; and, judges do not serve for life. The Supreme Court of the United States, sometimes abbreviated SCOTUS, is a one-of-a-kind institution. While a look at the Supreme Court typically focuses on the nine justices themselves, they represent only the top layer of an entire branch of government that includes many administrators, lawyers, and assistants who contribute to and help run the overall judicial system. The Court has its own set of rules for choosing cases, and it follows a unique set of procedures for hearing them. The Court’s decisions not only affect the outcome of the individual case before the justices, but also creates lasting impacts on legal and constitutional interpretation for the future. Supreme Court Structure & Procedure The original court in 1789 had six justices, but Congress set the number at nine in 1869, and it has remained there ever since. There is one chief justice, who is the lead or highest- ranking judge on the Court, and eight associate justices. All nine serve lifetime Image 14.5 Interior Photo of Supreme Court terms, after successful nomination by the Photo of the interior of the Supreme Court (Credit: Supreme Court at president and confirmation by the Senate. https://www.supremecourt.gov/about/photos.aspx). While not formally connected with the public the way elected leaders are, the Supreme Court nonetheless offers visitors a great deal of information at its official website. For unofficial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website or SCOTUSblog. The Supreme Court begins its annual session on the first Monday in October and ends the following June. Every year, there are literally thousands of people who would like to have their case heard before the Supreme Court, but the justices will select only a handful to be placed on the docket, which is the list of cases scheduled on the Court’s calendar. The Court typically accepts fewer than 2 percent of the cases it is asked to review every year.[6] Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade, for example.[7] For a case on appeal, the case name indicates which party lost at the lower level of court: The party unhappy with the lower court’s decision, as it relates to a legal or procedural error, brings the appeal and is the petitioner, or the first-named party in the case. For example, in Brown v. Board of Education (1954), Oliver Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination based on racial segregation. Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari, a request that the lower court send up its record of the case for review. Once a writ of certiorari (cert. for short) has been granted, the case is scheduled on the Court’s docket. The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine Justices must vote to accept a case. This is called the Rule of Four. For decisions about cert., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari) takes precedence.[8] The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the courts will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election.[9] The solicitor general is the lawyer who represents the federal government before the Supreme Court: he/she decides which cases (in which the United States is a party) should be appealed from the lower courts. About two-thirds of all Supreme Court cases involve the federal government.[10] The solicitor general determines the position the government will take on a case. The attorneys of his/her office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court. Once a case has been placed on the docket, briefs (short written arguments explaining each party’s view of the case) must be submitted. People and groups that are not party to the case but are interested in its outcome may file an amicus curiae (“friend of the court”) brief giving their opinion, analysis, and recommendations. How are decisions made and opinions written? With briefs filed, the Court hears oral arguments in cases from October through April. The proceedings are quite ceremonial. When the Court is in session, the robed justices make a formal entrance into the courtroom to a standing audience and the sound of a banging gavel. The Court’s marshal (head of the Court’s police force/position like bailiff) presents them with a traditional chant: “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! [Hear ye!] All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”[11] During oral arguments, each side’s lawyers have thirty minutes to make their legal case, though the justices often interrupt the presentations with questions. The justices consider oral arguments not as a forum for a lawyer to restate the merits of his or her case as written in the briefs, but as an opportunity to get answers to any questions they may have.[12] When oral arguments have been concluded, the justices have to decide the case, and they do so in conference, which is held in private twice a week when the Court is in session and once a week when it is not.[13] The judges take an initial vote in private before the official announcement of their decisions is 458 made public. Oral arguments are open to the public. Cameras are not allowed in the courtroom; however, an artist’s illustration or rendering (drawing) is often available.[14] Though they lack their own mechanism for enforcement of their rulings and power remains checked and balanced by the other branches, the effect of the justices’ opinions on the workings of government, politics, and society in the United States is much more significant than the attention they attract might indicate. Every Court opinion sets precedent for the future. The Supreme Court’s decisions are not always unanimous, however; the published majority opinion, or explanation of the justices’ decision, is the one with which a majority of the nine justices agree. It can represent a vote as narrow as five in favor to four against. A tied vote is rare but can occur at a time of vacancy, absence, or abstention from a case, perhaps where there is a conflict of interest. In the event of a tied vote, the decision of the lower court stands. If he/she is in the majority, the chief justice decides who will write the opinion. If not, the most senior justice ruling with the majority chooses the writer. Likewise, the most senior justice in the dissenting group can assign a member to write the dissenting opinion; however, any justice who disagrees with the majority may write a separate dissenting opinion. If a justice agrees with the outcome of the case but not with the majority’s reasoning in it, that justice may write a concurring opinion. Dissenting opinions can also be instructive. If the Court’s decision, expressed in the written majority opinion, significantly changed precedent or the role/processes of government, dissenting opinions may also garner significant attention. By the 1930s, the practice of racial segregation was widespread and vigorously maintained. When devastating floods hit Arkansas in 1937, for example, white refugees and black refugees were cared for in separate relief facilities. A series of Farm Security Administration photographs documenting the flood demonstrates the pervasive nature of segregation. After hearing arguments by NAACP lawyer Thurgood Marshall, the Supreme Court overruled the Plessy decision on May 17, 1954. Dissents can also become the basis for future Supreme Court rulings. In Brown v. the Board of Education, an unanimous Court adopted Justice Harlan’s dissent in Plessy v. Ferguson that segregation violated the Thirteenth and Fourteenth Amendments to the Constitution.”[15] The “Consider the Original” below contains key elements of his dissent. Appendix U provides a fuller text of Plessy v. Ferguson 163 U.S. 537 (1986). Chart 14.9 Text Excerpt from Plessy v. Ferguson Judicial Philosophy: Judicial Activism and Judicial Self-Restraint A justice’s decisions are influenced by how he/she defines his/her role as a jurist. Some justices believe strongly in judicial activism, which aims to interpret the Constitution as a dynamic document adjusting to society’s changing needs. As stated by Supreme Court Justice Oliver Wendell Holmes, “Provisions of the Constitution of the United States are not mathematical formulas… but are organic living institutions.[16] Judicial activism may bypass the legislative process in policy making without public opinion or debate. Under the activist view, constitutional requirements should be read regarding current standards of equality rather than those of past decades or centuries. Activist judges cite cases such as Brown v. Board of Education of Topeka, Kansas as proof that activist interpretation in the courts is sometimes Image 14.6 Photo of Justice Harlan by C.M. Bell, Library of Congress necessary. In Brown, the majority opinion stated, Archive “[…] we cannot turn the clock back to 1868, when the [14 ] Amendment was adopted, or even to 1896, when Plessy v. Ferguson was written. We must th consider public education in the light of its full development and its present place in American life.[17] Justice Homes said about a case, “The case before us must be considered in the light of our whole experience and not merely […] what was said a hundred years ago.”[18] Enthusiastic activists try to advocate for judicial activism citing desegregation achieved in two of the cases which employed equal protection clause as an example. Chart 14.10 Opinion of Student on Judicial Activism Other judges advocate for judicial restraint, leading them to defer decisions (and thus policymaking) to the elected branches of government staying focused on a stricter interpretation of the Constitution and the Bill of Rights. Judicial restraint encourages the judiciary to limit the exercise of a justice’s power, where judicial activists are seen as seeking to substitute personal judgement on the validity, meaning, or scope of a law for that of the democratically elected legislators. They reject that judges should be constantly reassessing and reinterpreting the meaning of the words of the Constitution. Rather, most judicial restraint advocates focus on the original meaning of the written text of the U.S. Constitution or an adopted law based on what “reasonable persons” living at the time of the adoption would have understood as the meaning.[19] The dissenting opinion of Justice Antonin Scalia in “Consider the Original” expresses this concern. See additional information in Appendix E. Regardless of opinions on activism or restraint, courts should require the government to prove the reasonableness of the law–to analyze and rigorously scrutinize the government’s reasons to intervene. Chart 14.11 Excerpt from Obergefell v. Hodges Congress has the ability under the Constitution to curtail the judiciary. The legal system is bound to the belief in stare decisis—following legal precedent—deferring to legislative process where laws are made, and then not entering into a position where they make law for popularly elected representatives. [20] Justice Anthony Kennedy has said, “An activist court is a court that makes a decision you don’t like.”[21] Justices’ personal beliefs and political attitudes also matter in their decision-making. Although we may prefer to believe a justice can leave political ideology or party identification outside the doors of the courtroom, the reality is that a more liberal-thinking judge may tend to make more liberal decisions and a more conservative-leaning judge may tend toward more conservative ones. The influence of ideology is real; and, at a minimum, it often guides presidents to aim for nominees who mirror their own political or ideological image. The courts themselves are affected by another “court”—the court of public opinion. Though somewhat isolated from politics and the volatility of the electorate, justices may still be swayed by special-interest pressure, the leverage of elected or other public officials, the mass media, and the general public. Court decisions are released at different times throughout the Court’s term, but all opinions are announced publicly before the Court adjourns for the summer. Some of the most controversial and hotly debated rulings are released near or on the last day of the term and thus are avidly anticipated. Chart 14.12 Student Opinion on Obergefell v. Hodges Although the courts’ role is interpretive, judges and justices are still constrained by the facts of the case, the Constitution, the relevant laws, and the courts’ own precedent. How do checks and balances work with the judicial branch? Both the executive and legislative branches check and balance the judiciary in many ways. The president can leave a lasting imprint on the bench through his or her nominations, even long after leaving office. The president may also influence the Court through the solicitor general’s involvement or through the submission of amicus curiae briefs in cases in which the United States is not a party. Congress has checks on the judiciary, retaining power to modify the court structure and appellate jurisdiction, and the Senate may accept or reject presidential nominees to the federal courts. Faced with a court ruling that overturns one of its laws, Congress may rewrite the law or even begin a constitutional amendment process. The most significant check on the Supreme Court is executive and legislative leverage over the implementation and enforcement of its rulings. This process is called judicial implementation. While it is true that courts play a major role in policymaking, they have no mechanism to make their rulings a reality. Remember it was Alexander Hamilton in Federalist No. 78 who remarked that the courts 463 had “neither force nor will, but merely judgment.” And even years later, when the 1832 Supreme Court ruled the State of Georgia’s seizing of Native American lands unconstitutional,[22] President Andrew Jackson is reported to have said, “John Marshall has made his decision, now let him enforce it,” and the Court’s ruling was basically ignored.[23] Abraham Lincoln famously ignored Chief Justice Roger B. Taney’s order finding Lincoln’s early Civil War suspension of habeas corpus rights unconstitutional. Thus, court rulings matter only to the extent they are heeded and followed. The Court relies on the executive to implement or enforce its decisions and on the legislature to fund them. For example, in 1957, President Dwight D. Eisenhower called out the military by executive order to enforce the Supreme Court’s order to racially integrate the public schools in Little Rock, Arkansas. Eisenhower told the nation: “Whenever normal agencies prove inadequate to the task and it becomes necessary for the executive branch of the federal government to use its powers and authority to uphold federal courts, the president’s responsibility is inescapable.”[24] Executive Order 10730 nationalized the Arkansas National Guard to enforce desegregation because the governor refused to use the state National Guard troops to protect the black students trying to enter the school. President Eisenhower sent federal troops to escort nine black students (the “Little Rock Nine”) into an Arkansas high school in 1957 to enforce the Supreme Court’s order outlawing racial segregation in public schools. (Credit: OpenStax included image) The fate of court decisions rests on their credibility, their viability, and the assistance given by the other branches of government. It also relies on tradition and precedent. Although not everyone agrees with the decisions made by the Court, rulings are generally accepted and followed, and the Image 14.7 Photo of Black Students Integrating Central High School Court is respected as the key interpreter of the laws and the Constitution. Over time, its rulings have become yet another way policy is legitimately made, and justice more adequately served in the United States. How are judges & justices selected? On the U.S. Supreme Court, there are nine justices—one chief justice and eight associate justices. Circuit courts each contain three justices, whereas federal district courts have just one judge each. At the federal level, the president nominates a candidate to a judgeship or justice position. The nominee must be confirmed by a majority vote in the U.S. Senate– checks and balances, a function of the Senate’s “advice and consent” role. All judges and justices in the national Chart 14.13 Information on Supreme Court "Firsts" courts serve life terms (Article III regular courts). The president’s nominee is then discussed (and sometimes hotly debated) in the Senate Judiciary Committee. After a committee vote, the candidate must be confirmed by a majority vote of the full Senate. He/she is then sworn in, taking an oath of office to uphold the Constitution and the laws of the United States. When a vacancy occurs in a lower federal court, by custom, the president consults with that state’s U.S. senators (usually if they are of the same party as the president) before making a nomination. Through such senatorial courtesy, senators exert considerable influence on the selection of judges in their state, especially those senators who share a party affiliation with the president. In many cases, a senator can block a proposed nominee just by voicing his or her opposition. Thus, a presidential nominee typically does not get far without the support of the senators from the nominee’s home state. Most presidential appointments to the federal judiciary go unnoticed by the public, but when a president has the rarer opportunity to make a Supreme Court appointment, it draws more attention. That is particularly true now, when many people get their news primarily from the Internet and social media. Presidential nominees for the courts typically reflect the chief executive’s own ideological position. With a confirmed nominee serving a lifetime appointment, a president’s ideological legacy has the potential to live on long after the end of his or her term.[25] The lower courts are more diverse today. The U.S. judiciary has expanded to include women and minorities at both the federal and state levels.[26] However, the number of women and people of color on the courts still lag behind the overall number of white men. As of 2021, the federal judiciary consists of 67 percent men and 33 percent women. In terms of race and ethnicity, 74 percent of federal judges are White, 12 percent African American, 8 Hispanic American, and 4 percent Asian American.[27] Image 14.8 Photo of 2023 Supreme Court Justices The justices of the U.S. Supreme Court at the Supreme Court Building in Washington, D. C. left to right front row: Associate Justices Sonia Sotomayor, Clarence Thomas, with Chief Justice John G. Roberts, Jr. and Associate Justices Samuel A. Alito, Jr. and Elena Kagan; back row: Associate Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh, and Ketanji Brown Jackson. Credit: Fred Schilling, Collection of the Supreme Court of the United States, 2023) ## QUESTIONS TO CONSIDER 1. Is a multi-layered courts system within the federal structure a positive for individuals? Why/why not? Show Answer there is potentially more access in a multi-layered system 2. When it comes to filling judicial positions in the federal courts, do you believe race, gender, religion, and ethnicity should matter? Why or why not? Show Answer personal opinion, open for debate 3. In what ways is the court system better suited to protect the individual than are the elected branches of the government? Show Answer courts can force a hearing for individuals where Congress or the Executive may not listen until they believe a sufficient number of individuals are impacted/complaining ## TERMS TO REMEMBER affirm–decision of the court to agree with or uphold a lower court decision amicus curiae—literally a “friend of the court” and used for a brief filed by someone who is interested in but not party to a case appellate court–reviews cases already decided by a lower or trial court and that may change the lower court’s decision appellate jurisdiction–function of the court is to hear appeals on procedural or legal error occurring at lower court or court of original jurisdiction associate justice—any justice sitting on the Supreme Court of the United States that is not the Chief Justice bench trials--judge acts as both judge and jury based on both law and fact brief–written legal argument presented to a court by one of the parties in a case chief justice–highest-ranking justice on the Supreme Court circuit courts the appeals (appellate) courts of the federal court system that review decisions of the lower (district) courts; courts of appeal concurring opinion–written decision by a justice who agrees with the Court’s majority opinion but has different reasons for doing so courts of appeals–the appellate courts of the federal court system that review decisions of the lower (district) courts; also called circuit courts dissenting opinion–written decision by a justice who disagrees with the majority opinion of the Court district court–the trial courts of the federal court system where cases are tried, evidence is presented, and witness testimony is heard docket–the list of cases pending on a court’s calendar judicial activism–judicial philosophy in which a justice is more likely to actively intervene, overturn, or alter actions of the other branches of government judicial implementation–a check on the Supreme Court; executive and legislative leverage over the implementation and enforcement of rulings judicial restraint–judicial philosophy in which a justice is more likely to let stand the decisions or actions of the other branches of government 467 majority opinion–written decision of the Court with which more than half the nine justices agree oral argument– words spoken before the Supreme Court (usually by lawyers) explaining the legal reasons behind their position in a case and why it should prevail original jurisdiction–function of court to hear original testimony, cross-examination, viewing of evidence, etc. petit jury--jury of peers deciding on the credibility of evidence presented at trial petitioner–party unhappy with the lower court’s decision bringing the appeal or the first-named party in the case precedent–the principles or guidelines established by courts in earlier cases that frame the ongoing operation of the courts, steering the direction of the entire system remand–decision to send a case back to the lower court for further proceedings reverse–decision to overturn a lower court ruling/decision Rule of Four–Supreme Court custom in which a case will be heard when four justices decide to do so senatorial courtesy–an unwritten custom by which the president consults the senators in the state before nominating a candidate for a federal vacancy there, particularly for court position at the District Court Level solicitor general–lawyer who represents the federal government and argues some cases before the Supreme Court stare decisis–the principle by which courts rely on past decisions and their precedents when making decisions in new cases Supreme Court–highest federal/national court; original and appellate jurisdiction writ of certiorari–order calling up the records of the lower court so a case may be reviewed; sometimes abbreviated cert. 1. Bureau of International Information Programs, United States Department of State. Outline of the U.S. Legal System. 2004. ↵ 2. Benjamin N. Cardozo. 1921. The Nature of the Judicial Process. New Haven: Yale University Press. http://www.constitution.org/cmt/cardozo/jud_proc.htm. ↵ 3. Legal term "affirmed" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary ↵ 4. Legal term "remand" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary ↵ 5. Legal term "reverse" defined by United States Department of Justice, Offices of the United States Attorneys, Legal Terms Glossary at https://www.justice.gov/usao/justice-101/glossary ↵ 6. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity- resources/supreme-1 (March 1, 2016). ↵ 7. Roe v. Wade, 410 U.S. 113 (1973). ↵ 8. "Rule 10. Considerations Governing Review on Certiorari." Rules of the Supreme Court of the United States. Adopted April 19, 2013, Effective July 1, 2013. http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf. ↵ 9. Bush v. Gore, 531 U.S. 98 (2000). ↵ 10. "About the Office." Office of the Solicitor General. The United States Department of Justice. http://www.justice.gov/osg/about-office-1 (March 1, 2016). ↵ 11. "The Court and its Procedures." Supreme Court of the United States. May 26, 2015. ↵ 12. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity- resources/supreme-1 (March 1, 2016). ↵ 13. "Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity- resources/supreme-1 (March 1, 2016). ↵ 14. Jonathan Sherman. "End the Supreme Court's Ban on Cameras." New York Times. 24 April 2015. http://www.nytimes.com/2015/04/24/opinion/open-the- supreme-court-to-cameras.html. ↵ 15. Library of Congress at https://www.loc.gov/item/today-in-history/may-18/. 16. Gompers v. United States, 233 U.S. 604 (1914) 17. Missouri v. Holland, 252 U.S. 416 (1920) 18. Brown v. Board of Education , 347 U.S. 483 (1954) 19. Barrett, Amy Coney (July 2017), “Originalism and Stare Decisis,” Notre Dame Law Review 92. 20. Credit for comment to Attorney Melody Gillett, Houston, Texas 2016 ↵ 21. Jonathan Sherman. "End the Supreme Court's Ban on Cameras." New York Times. 24 April 2015. http://www.nytimes.com/2015/04/24/opinion/open-the- supreme-court-to-cameras.html. ↵ 22. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). ↵ 23. "Court History." Supreme Court History: The First Hundred Years. http://www.pbs.org/wnet/supremecourt/antebellum/history2.html (March 1, 2016). ↵ 24. Dwight D. Eisenhower. "Radio and Television Address to the American People on the Situation in Little Rock." Public Papers of the Presidents of the United States: Eisenhower, Dwight D., The American Presidency Project. September 24, 1957. http://www.presidency.ucsb.edu/ws/?pid=10909. ↵ 25. American Bar Association Coalition for Justice. 2008. "Judicial Selection." In American Bar Association, eds. American Judicature Society and Malia Reddick. http://www.americanbar.org/content/dam/aba/migrated/JusticeCenter/Justice/PublicDocuments/judicial_selection_roadmap.authcheckdam.pdf. ↵ 26. Bureau of International Information Programs. United States Department of State. Outline of the U.S. Legal System. 2004. ↵ 27. Diversity of the Federal Bench, American Constitution Society, https://www.acslaw.org/judicial-nominations/diversity-of-the-federal-bench/ (June 1, 2021) LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, SHARED PREVIOUSLY • American Government. Authored by: OpenStax. Provided by: OpenStax; Rice University. Located at: https://cnx.org/contents/W8wOWXNF@12.1:Y1CfqFju@5/Preface. License: CC BY: Attribution. License Terms: Download for free at http://cnx.org/contents/9e28f580-0d1b-4d72-8795-c48329947ac2@1. • Share icon. Authored by: Quan Do. Provided by: The Noun Project. Located at: https://thenounproject.com/term/share/7671/. License: CC BY: Attribution • Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution PUBLIC DOMAIN CONTENT • UPREME COURT OF THE UNITED STATES Syllabus OBERGEFELL ET AL. v. HODGES, DIRECTOR, OHIO DEPARTMENT OF HEALTH, ET AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT No. 14u2013556. Argued April 28, 2015u2014Decided June 26, 2015. Authored by: Associate Justice Antonin Scalia. Provided by: Supreme Court of the United States. Located at: https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf. License: Public Domain: No Known Copyright ## 14.3 U.S. Courts: Due Process and Equality Under the Law Image 14.9 Photo of Court Gavel (Credit: United States Courts at http://www.uscourts.gov/about-federal-courts/federal-courts-public) Chart 14.14 Learning Objectives on Civil and Criminal Procedure Chart 14.15 Excerpt from Letter Between Jefferson and Tiffany Courts interpret contractual agreements between parties. Sometimes the parties’ dispute over the meaning of the contract, and sometimes the dispute concerns an infraction against the rules that hold people accountable to the contract. No matter whether the dispute is about a criminal activity or a civil 470 action, each individual party to the process, litigant, is guaranteed a protected right to due process. The Constitution, the people’s contract with the government, enumerates this protection no matter the race, gender, age, socioeconomic status, or personal ability of any individual involved in a legal dispute. Not only is everyone to receive due process (equity and standardization of procedure), they are also to be treated equally by the judicial system despite any factor of birth, situation, or circumstance. Two Types of Procedural Dispute: Civil and Criminal Courts hear two different types of disputes: criminal and civil. Under criminal procedure, governments establish rules and punishments. Laws define conduct that is prohibited because it can harm others, and laws also impose punishment. Crimes are usually labeled based on their nature and seriousness; felonies are the more serious crimes. When someone commits a criminal act, the government (state or national, depending on which law has been broken) charges that person with a crime, and the case brought to court contains the name of the charging government, as in Miranda v. Arizona discussed below.[1] Criminal procedure involves processing (prosecuting/prosecution) cases against individuals (defendant/defense) accused of harming others and includes the decision about punishment for criminal actions. A verdict (opinion or judgement) of guilt or innocence is sought in criminal cases. Civil procedure involves two or more private (usually non-government) parties, at least one of whom (plaintiff) alleges harm or civil injury (tort) committed by the other (defendant/respondent). A decision in favor of one of the parties is sought in civil cases based upon a level of proof called preponderance of evidence. The plaintiff makes a choice of basic trial procedure. The choice is between a bench trial (judge determines both fact and law) or a petit jury trial (random citizens called to serve to determine the facts). The basic steps in both civil and criminal procedure vary according to individual cases and case complexities. The chart on the following page is a basic selection of procedural steps generally associated with the constitutional protection of due process. In both criminal and civil matters, the judges and juries decide the remedy and resolution of the case, and in all cases, the U.S. Supreme Court is the final court of appeal. Although the Supreme Court tends to draw the most public attention, it typically hears fewer than one hundred cases every year. About 90 percent of all cases in the U.S. court system are heard at the state level.[2] The federal/national courts handle approximately 2-3 thousand cases a year while state courts adjudicate several million. State courts handle criminal and civil matters (personal injury, malpractice, divorce, family, juvenile, probate, contract disputes, and real estate cases). The federal courts hear cases involving foreign governments, patents, copyright infringement, Native American rights, maritime law, bankruptcy, or controversies between two or more states. Cases arising from activities across state lines (interstate commerce) are also subject to federal court jurisdiction, as are cases in which the United States is a party. A dispute between two parties not from the same state or 471 nation and in which damages of at least $75,000 are claimed is handled at the federal level. Such a case is known as a diversity of citizenship case.[3] Chart 14.16 Outlining Criminal and Civil Procedure in the Courts Original Chart by Deborah S. Hoag and Rachel Brooks, Austin Community College It is possible that issues of federal law may start in the state courts before making their way to the federal side. Any case starting at the state and/or local level may make it into the federal system on appeal—but only on points that involve a federal law or question, and usually after all avenues of appeal in the state courts have been exhausted. Consider the case Miranda v. Arizona.[4] Ernesto Miranda, arrested for kidnapping and rape (violations of state law), was convicted and sentenced to prison after a key piece of evidence—his own signed confession—was presented at trial in the Arizona court. On appeal to the Arizona Supreme Court and then the U.S. Supreme Court, the case requested to exclude Miranda’s confession on the grounds that its admission was a violation of his constitutional rights. By a slim 5–4 margin, the justices ruled that the confession should be excluded from evidence. In obtaining it, the police had violated Miranda’s Fifth Amendment right against self-incrimination and his Sixth Amendment right to an attorney. Miranda’s original conviction was overturned. The Supreme Court considered only the violation of Miranda’s constitutional rights, not whether he was guilty of the crimes with which he was charged. He was retried in state court in 1967, the second time without the confession as evidence. Miranda was found guilty again based on witness testimony and other evidence and sent to prison. Miranda’s story is a good example of the tandem operation of the state and federal court systems. His guilt or innocence of the crimes was a matter for the state courts, whereas the Image 14.10 Photo of Jury constitutional questions raised by his trial were a matter for the federal courts. Photo of jurors in a jury box inside a courtroom. (Credit: OpenStax indluded image; moodboard/Brand X Pictures/Getty Images) HAVE YOU EVER SERVED ON A JURY? Since judges and justices are not elected, we sometimes consider the courts removed from the public; however, this is not always the case. Average citizens may get involved with the courts firsthand as part of their decision-making process. If you have not already been called, you may receive a summons for jury duty from your local court system. You may also be asked to serve federal jury duty, such as U.S. district court duty or federal grand jury duty. Local or state jury service is more common. While your first reaction may be to start planning a way to get out of it, participating in jury service is vital to the operation of the judicial system. It provides individuals in court the chance to be heard and to be tried fairly by a group of their peers. Jury duty has benefits for those who serve as well. You will no doubt come away better informed about how the judicial system works. Who knows? You might even get an unexpected surprise, as some citizens in Dallas, Texas did recently when former President George W. Bush showed up to serve jury duty with them. Prospective jurors participate in the jury selection process called voir dire. Voir dire consists of the judge informing court administrators of how many prospective jurors may be needed for the situation of a case. Jurors are brought from a waiting area to the courtroom, where both the prosecution and defense are allowed to ask them questions. If you listen carefully, you may be able to ascertain, from the questions asked, what the trial is likely to involve. You may be dismissed based upon an answer you provide or because there are, in the end, too many prospective jurors from which to choose. If you are selected, you will be empaneled on the jury for the duration of the trial. ## MARIJUANA LAWS AND THE COURTS There are so many differences in marijuana laws between states, and between the states and the national government. What is legal in one state may be illegal in another, and state laws do not cross state 473 geographic boundary lines—but people do, and a person residing in any of the fifty states is still subject to federal law. Chart 14.17 Map of US Showing Marijuana Status Marijuana laws vary remarkably across the fifty states. In most states, marijuana use is illegal, as it is under federal law, but some states have decriminalized it, some allow it for medicinal use, and some have done both. Marijuana is currently legal for recreational use in four states, per state law. (Credit: OpenStax included image) Differences can lead, somewhat ironically, to arrests and federal criminal charges for people who have marijuana in states where it is legal, or to federal raids on growers and dispensaries that would otherwise be operating legally under their state’s law. Differences among the states have also prompted a number of lawsuits against states with legalized marijuana. People opposed to state laws seek relief from the courts. They want courts to resolve the contradictions and conflicts between states as well as between states and the national government. Citing concerns over cross-border trafficking, difficulties with law enforcement, and violations of the Constitution’s supremacy clause, Nebraska and Oklahoma have petitioned the U.S. Supreme Court to intervene and rule on the legality of Colorado’s marijuana law, hoping to get it overturned.[5] Each state court system operates with its own individual set of biases. People with varying interests, ideologies, behaviors, and attitudes run the disparate legal systems, so the results they produce are not always the same. Moreover, the selection method for judges at the state and local level varies–elected or appointed. Just as the laws vary across the states, so do judicial rulings and interpretations, and the judges who make them. That means there may not be uniform application of the law—even of the same law— 474 nationwide. We are somewhat bound by geography and do not always have the luxury of picking and choosing the venue for our case. So, while having such a decentralized and varied set of judicial operations affects the kinds of cases that make it to the courts and gives citizens alternate locations to get their case heard, it may also lead to disparities in the way they are treated once they get there. ## QUESTIONS TO CONSIDER 1. What is the difference between a bench and petit jury trial? Show Answer In a bench trial, the judge acts as both judge and jury. In a petit jury trial, citizens form the jury. 2. What is the essential point to remember from the decision in Miranda v. Arizona? Show Answer Every accused person should understand their basic protections of civil liberties, and they should be asked at the earliest point if they do understand. TERMS TO REMEMBER bench trial–judge acts as both judge and jury (no petit jury of peers) civil procedure–processing cases between private individuals seeking resolution of disputes regarding non-criminal law private rights and remedies criminal procedure–processing cases against individuals accused of harming others; punishment for those actions defendant–individual accused of harming others and involved in the legal process due process–consistent procedure within the justice system jury duty–citizens called to hear civil disputes or criminal cases in the court system; tasked with determining outcome/verdict litigant–each individual party to a court case; including defendant/respondent, prosecutor, plaintiff Miranda v. Arizona–case involving criminal procedure, accused persons must be informed of their constitutional rights upon arrest petit jury trial–12 member jury of citizens, determines verdict/decision plaintiff–private (non-government) parties alleging harm or civil injury committed by the another (defendant/respondent) preponderance of evidence–which side has the best argument and evidence prosecution/prosecutor–Criminal procedure involves processing cases against individuals (defendant) accused of harming others respondent–party to a court case (litigant) defending against a charge of civil injury tort–civil injury verdict–opinion or judgement of guilt or innocence sought in criminal cases voir dire–jury selection process 1. Miranda v. Arizona, 384 U.S. 436 (1966). ↵ 2. "State Courts vs. Federal Courts." The Judicial Learning Center. http://judiciallearningcenter.org/state-courts-vs-federal-courts/(March 1, 2016). ↵ 3. "State Courts vs. Federal Courts." The Judicial Learning Center. http://judiciallearningcenter.org/state-courts-vs-federal-courts/(March 1, 2016). ↵ 4. Miranda v. Arizona, 384 U.S. 436 (1966)."U.S. Court System." Syracuse University. http://www2.maxwell.syr.edu/plegal/scales/court.html (March 1, 2016). ↵ 5. States of Nebraska and Oklahoma v. State of Colorado. Motion for Leave to File Complaint, Complaint and Brief in Support. December 2014. http://www.scribd.com/doc/250506006/Nebraska-Oklahoma-Lawsuit. ↵ ## LICENSES AND ATTRIBUTIONS CC LICENSED CONTENT, ORIGINAL - Adapted Content: Contractual Agreements. Authored by: Deborah Hoag. Provided by: Austin Community College. Located at: http://www.austincc.edu/. Project: Achieving the Dream. License: CC BY: Attribution CC LICENSED CONTENT, SHARED PREVIOUSLY - Adaption and Remix, and Original Content. Authored by: Deborah Smith Hoag. Provided by: Austin Community College. Located at: http://austincc.edu. Project: Achieving the Dream Grant. License: CC BY: Attribution PUBLIC DOMAIN CONTENT - National Archives: Founders Online. Provided by: National Archives: Founders Online. Located at: http://founders.archives.gov/documents/Jefferson/98-01-02-0303. License: Public Domain: No Known Copyright