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The branch of government that is endowed with the authority to interpret and apply the law, adjudicate legal disputes, and otherwise administer justice.
The U.S. judiciary comprises a system of state and federal courts, tribunals, and administrative bodies, as well as the judges and other judicial officials who preside over them.
Every society in human history has confronted the question of how to resolve disputes
The Politicizing of American Jurisprudence
An old saying goes, "A judge is a lawyer who knew a governor (or senator or president)." The inference is unavoidable: judges are political creatures. From many of the nation's law professors to leading members of its foremost bar association, some legal experts think this assertion is regrettably all too true.
Only federal judges and a handful of state judges are appointed for life, barring Impeachment. In all other states and in local governments, most judges are elected by popular vote for a specific term. Voters tend to elect persons who share their views. The same is true for most gubernatorial appointments, although in many states this tendency is tempered by senatorial confirmation. Inescapably, the development of platforms that represent the most popular, prevailing, or promising views is a political process.
In the words of John Adams's Massachusetts constitution, it has always been the desire to make judges "as free, impartial and independent as the lot of humanity will admit." In a political system where party politics are defined by social issues and where Jurisprudence affects those issues, however, party alignment of judges seems inevitable, either by default or by declaration. The extent is arguable, but few would deny that judges assume the bench based on how others perceive they will run the court: conservatively or liberally.
Ostensible checks and balances exist, of course. All judges are expected to follow ethical standards requiring disinterested and unbiased opinions, which most do. Most states have a Code of Judicial Conduct and/or ethics for this purpose, generally fashioned from that of the American Bar Association (ABA). These codes proscribe many instances of campaign conduct for prospective and current judges. Judges cannot personally solicit or accept campaign funds and often are prohibited from identifying themselves with any political party. Typically, they must run on a non-partisan ticket.
But nothing prevents political action committees (PACs) from making campaign contributions to judges. Some scoff at the imposition of limits. "If PACs are limited, people go out and create more PACs," explained Dick Wilcox, president of the Business and Industry Political Education Committee in Mississippi. "If wealthy individuals are restricted, they give money to their secretaries, wives, or children to contribute." Contributions add up: Michigan spent $16 million on judicial elections in 2000 alone. In Georgia in 2002, races for two Supreme Court seats garnered more than $700,000.
Electing judges, however, is unnecessary. As an alternative, some point to the pioneering Missouri system. Under this system a governor appoints all state trial and appellate judges with the advice and consent of the legislature. Still another variation seeks to further depoliticize such choices by requiring a governor to select among nominees submitted by a selection panel or special nominating committee.
Support for reform is growing. In Michigan, Senator Ken Sikkema introduced a bill in 2001 for a Constitutional amendment allowing the governor to appoint justices to a single 14-year term, an idea favored by state supreme court justice Elizabeth Weaver. More dramatically, the ABA has called for a sweeping overhaul of the current state system. In 2003, the ABA Commission on the 21st Century Judiciary warned that partisanship over the courts was escalating to crisis levels. Among 23 recommendations, the commission called for limiting judges to service of either one long term or until a specific age, without eligibility for retention or reelection. Such limits are needed to "inoculate America's courts against the toxic effects of money, partisanship and narrow interests," the commission declared. (Justice at Stake Campaign. "ABA Commission Warns: State Court Systems at Risk." March 2003.)
Advocates of reform say it may cure other ills and weaknesses, too. Reform might eliminate so-called "negative campaigning." Michigan Supreme Court Chief Justice Maura Corrigan believes negative campaigns create perceptions among voters that justices are "bought" by special interests. Moreover, judges may lose independence out of fear that certain opinions will be used against them in negative campaign ads.
Another blemish that might be cured is that of real or perceived lawyer Lobbying. For years, attorneys—particularly plaintiffs' lawyers—have outspent the largest oil and automotive companies in judicial campaign contributions. The ABA has spoken out sharply against attorneys contributing to campaigns of judges before whom they do frequent business or from whom they wish to gain court-appointed business. Yet just like other campaign contributors, attorneys are exercising their speech rights under the First Amendment.
Concerns about politicization of the judiciary soared during the unusual 2000 presidential election. When Florida circuit judge Nikki Ann Clark, an African American and a Democrat, was assigned one of the election cases seeking to invalidate as many as 15,000 absentee ballots from Florida's Seminole County, candidate george w. bush's attorneys requested that she Recuse herself from the case. Just weeks before, Bush's brother, Republican Florida governor Jeb Bush, had bypassed her for a state appellate court vacancy. She refused to recuse herself, issuing a decision unfavorable to Bush and favorable to Florida's African–American voters. After her decision was upheld by both the appellate court and the Florida Supreme Court, critics complained that their justices had been appointed by Democratic governors.
Both sides, in fact, found much to complain about. After a sharply divided U.S. Supreme Court reversed the Florida Supreme Court and halted the manual recount of votes (Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 [U.S. 2000]), critics of the decision scathingly denounced it as politically motivated. In fact, 524 U.S. law professors at 120 American law schools took out an ad in The New York Timescriticizing the majority for "acting as political proponents for candidate Bush, not as judges." (People for the American Way Foundation. "524 Law Professors Say" 2001.) Other critics seized upon an alleged remark by Supreme Court Justice Sandra Day O'Connor, reported in the January 1, 2001, issue of Newsweek. "This is terrible," Justice O'Connor is supposed to have said upon learning that Gore was ahead. Only a Bush victory would have allowed her to retire knowing that a conservative replacement would be found for her on the Court.
"ABA Commission Warns: State Court Systems at Risk." 2003. Justice at Stake Campaign. (March). Available online at <www.justiceatstake.org/contentViewer.asp?breadcrumb=3,358> (accessed July 15, 2003).
"Bush v. Gore and the Conservatives: Gary Rosen & Critics." 2003. Commentary 113 (March).
Ezzard, Martha. 2002. "Money Can't Buy Judicial Elections Yet." The Atlanta Journal and Constitution (August 18): G3.
Law Professors for the Rule of Law. 2001. "524 Law Professors Say by Stopping the Vote Count in Florida, the U.S. Supreme Court Used Its Power to Act as Political Partisans, Not Judges of a Court of Law." Advertisement. Available online at <www.the-rule-of-law.com/archive/supreme/viewad.html> (accessed July 15, 2003).
among its members. Many early societies chose a private system of revenge for dispute resolution. As civilization gradually evolved, and the system of revenge was perceived as counterproductive to society, communities began designating individuals to resolve disputes in accordance with established norms and customs. These individuals were usually leaders who were expected to exercise their judgment in an impartial manner.
The origins of judicial action, judicial power, and judicial process may be traced to the first communities that relied on neutral third parties to resolve legal disputes. Judicial action is any action taken by a court or other judicial body to interpret, apply, or declare what the law is on a particular issue during a legal proceeding. It is also the action taken by a judicial body to settle a legal dispute by issuing an opinion, order, decree, or judgment. Judicial power is the authority of a court to hear a particular lawsuit or legal dispute, and take judicial action with regard to it. Judicial process is the procedures by which a court takes judicial action or exercises its judicial power.
Ancient Greece, one of the earliest known societies in Western civilization, employed a combination of judicial procedures. Greek rulers, known as arkhons, were empowered to hear a variety of disputes, as was the agora, a group of respected elders in the community. A court known as the Areopagus heard murder cases, and direct retaliation by private citizens was still permitted in many civil disputes. The judicial powers of these institutions were gradually replaced by the Ekklesia, an assembly of six thousand jurors that was divided into smaller panels to hear particular cases.
Juries played an integral role in the development of the English judicial system. As more legal disputes were submitted to juries for resolution, this system became more self-conscious. Concerns were expressed that both judges and juries were rendering biased decisions based on irrelevant and untrustworthy evidence. Litigants complained that trial procedures were haphazard, Arbitrary, and unfair. Losing parties sought effective remedies to redress erroneous decisions made at the trial court level. Each of these concerns has manifested itself in the modern judicial system of the United States.
The blueprints for the U.S. judiciary were laid out in 1789. During that year the U.S. Constitution was formally adopted by the states. Article III of the Constitution delineates the general structure of the federal judicial system, including the powers and obligations of federal courts. The Judiciary Act of 1789 (1 Stat. 73 [codified as amended in 28 U.S.C.A.]) fleshes out many details of federal judicial power that were not addressed by the Constitution. The blueprints for the state judicial systems were created similarly by state constitutional and statutory provisions.
The U.S. judicial system has three principal characteristics: it is part of a federalist system of government, it has a specific role under the federal separation-of-powers doctrine, and it is organized in a hierarchical fashion.
The judiciary is part of a federalist system in which the state and federal governments share authority over legal matters arising within their geographic boundaries. In some instances both state and federal courts have the power to hear a legal dispute that arises from a single set of circumstances. For example, four Los Angeles police officers who were accused of participating in the 1991 beating of speeding motorist Rodney G. King faced prosecution for excessive use of force in both state and federal court. In other instances a state or federal court has exclusive jurisdiction over a particular legal matter. For example, state courts typically have exclusive jurisdiction over matrimonial law, and federal courts have exclusive jurisdiction over Bankruptcy law.
Separation of Powers
Under the separation-of-powers doctrine, the judiciary shares power with the executive and legislative branches of government at both the state and federal levels. The judiciary is delegated the duty of interpreting and applying the laws that are passed by the legislature and enforced by the Executive Branch.
Article I of the U.S. Constitution grants Congress its lawmaking power, and Article II authorizes the president to sign and Veto legislation and to execute laws that are enacted. Article III grants the federal judiciary the power to adjudicate, among other things, lawsuits that arise under the Constitution, congressional law, and treaties with foreign countries.
Federal judges, including Supreme Court justices, are not elected to office. Instead, they are appointed to office by the president of the United States with the advice and consent of the Senate. Once appointed, federal judges hold office for life, unless they resign or are impeached for "Treason, Bribery, or other High Crimes and Misdemeanors" (U.S. Const. art. II, § 4).
The lifetime appointment of federal judges is controversial. On one hand, the federal judiciary runs the risk of growing out of touch with popular sentiment because it is being immunized from the electorate. On the other hand, it is considered necessary for the judiciary to remain independent of popular will so that judges will decide cases according to legal principles, not political considerations.
In many states judges are elected to office. Nonetheless, each state constitution similarly delegates powers among the three branches of government. Accordingly, judges are still expected to decide cases based on the law, not the political considerations that the executive and legislative branches may take into account in executing their duties.
The U.S. judiciary is a hierarchical system of trial and appellate courts at both the state and federal levels. In general, a lawsuit is originally filed with a trial court that hears the suit and determines its merits. Parties aggrieved by a final judgment have the right to appeal the decision. They do so by asking an appellate court to review the decision of a trial court. The structure of state court systems varies by state, but four levels generally can be identified: minor courts, major trial courts, intermediate appellate courts, and state supreme courts. Minor courts handle the least serious cases. For example, municipal courts handle city ordinance violations, such as speeding tickets and parking violations. Cases that involve state constitutional issues, state statutes, and Common Law are dealt with by major trial courts. For example, felony cases, such as murder or rape, would be handled in a major trial court. Trial courts are called by different names in different states. For example, in Pennsylvania they are called courts of Common Pleas.
Intermediate appellate courts, called courts of appeals, review cases that have been decided by trial courts. They do not hear new evidence; they decide whether the lower court (the trial court) correctly applied the law in the case. State supreme courts review cases that deal with state law. The decision of the court is final since the state supreme court is the ultimate arbiter of state laws and the state constitution. Supreme courts are called by various names depending on the state. For example, West Virginia calls its state supreme court the Supreme Court of Appeals.
Federal cases, including civil and criminal, are handled by federal district courts. There are 94 district courts, with at least one in each state, as well as a district court for the District of Columbia, Guam, the Northern Mariana Islands, Puerto Rico, and the Virgin Islands. The number of judgeships appointed to each district is laid out in Title 28, Section 133 of the U.S. Code, which is a compilation of the permanent laws of the United States.
The 94 districts are divided into 12 regional circuits. Each of these circuits has a U.S. court of appeals, also called a circuit court. U.S. courts of appeals were created by the Evarts Act of 1891 (28 U.S.C.A. § 43); the central location of each court is determined by statute (28 U.S.C.A. § 41 ). Each federal appellate court has jurisdiction over a certain geographic area, and may hear appeals only from federal district courts within that jurisdiction. The Court of Appeals for the Federal Circuit, however, has nationwide jurisdiction to handle certain kinds of cases, including patent cases and those that involve trade with other countries.
The Supreme Court is the nation's highest appellate court. It is sometimes called the "court of last resort" because once the Court reviews a case, and renders a final judgment, further appeals cannot be made. The nine justices who sit on the Supreme Court review cases that begin at either the federal or state level. These cases usually focus on important issues involving the U.S. Constitution and federal law. The Supreme Court receives its authority from Article III, Section 1, of the U.S. Constitution, which states that "[t]he 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."Special Courts Not all lawsuits begin in an ordinary court. Both the state and federal governments have established Special Courts that are expressly designated to hear specific types of cases. For example, at the federal level, the U.S. Court of International Trade handles cases involving foreign business dealings, and the U.S. Tax Court handles disputes between taxpayers and the Internal Revenue Service (IRS). Examples at the state level include special courts that hear cases involving juveniles (i.e., juvenile court) or cases involving domestic issues (i.e., family courts). Specialized courts have also been created to hear appeals. For example, the Court of Military Appeals was established in 1950 to review Court-Martial decisions.
Alternative Dispute Resolution and Administrative Agencies In certain areas of law, litigants are prohibited from beginning a lawsuit in an ordinary trial court unless they first exhaust other methods of dispute resolution through an administrative body. Since the mid-1930s, state and federal governments have created elaborate administrative systems to dispose of certain legal claims before a lawsuit may ever be filed. For example, at the federal level, administrative agencies have been created to oversee a number of disputes involving labor law, environmental law, antitrust law, employment discrimination, Securities transactions, and national transportation.
Administrative agencies are created by statute, and legislatures may prescribe the qualifications for administrative officials, including administrative law judges, who are appointed by the executive branch; courts of law; and heads of government departments. These agencies are charged with the responsibility of establishing, developing, evaluating, and applying policy over a given area of law. The body of rules, principles, and regulations promulgated by such agencies and their officials is known as administrative law.
Laws created by state and federal administrative bodies, including adjudicative bodies, are considered no less authoritative than laws enacted by legislatures, decreed by the executive branch, or issued by the judiciary. However, litigants who first exhaust their administrative remedies through the appropriate agency and are dissatisfied with a decision rendered by an administrative law judge, may appeal the decision to an ordinary court of law.
State and federal governments have passed formal rules that set forth the procedures that administrative bodies must follow. The rules governing federal administrative adjudication are provided in the Administrative Procedure Act (5 U.S.C.A. § 551 et seq. ).
Kozlowski, Mark, and Anthony Lewis. 2003. The Myth of the Imperial Judiciary: Why the Right is Wrong About the Courts. New York: New York Univ. Press.
MacDowell, Douglas M. 1978. The Law in Classical Athens. Ithaca, N.Y.: Cornell Univ. Press.
Administrative Law and Procedure; Alternative Dispute Resolution; Appellate Advocacy; Code of Judicial Conduct; Court of Appeal; Court of Claims; Court Opinion; Discretion in Decision Making; Federal Courts; Federalism; Judicial Review; Jury; Original Jurisdiction; Separation of Powers; State Courts.
JUDICIARY. That which is done while administering justice; the judges taken collectively; as, the liberties of the people are secured by a wise and independent judiciary. See Courts; and 3 Story, Const. B. 3, c. 3 8.