an essay on judicial system

American Judicial System Structure Essay (Critical Writing)

The lectures on the American Judiciary leave one with a strong impression of its sheer complexity. The American Judicial system is believed to be the most complex and dynamic legal system in the world.

This complexity is further heightened by the fact that the United States is a large country with several minor state judicial systems, which work independently and co-dependently at the same time (O’Connor and Sabato 16). The whole system is organized in the form of a hierarchy.

Each State has its own federal courts that deal with the various federal law issues. One of the interesting aspects of the American Judicial system is its adversarial nature. This is whereby litigants and their lawyers present their sides of a case to a neutral party. The information is then presented to court for a trial. Attorneys can either be hired by litigants or provided for by the court.

Other interesting aspects of the judiciary include the criteria followed in the selection of chief judges and the senior judges. These particular selections are primarily based on seniority. Such is the case also for the circuit and district chiefs. For the chief judge, they must be over the age of 64.

For the senior judge, the age is much higher, at 70, with a minimum service period of 10 years. Another interesting aspect of the American Judiciary learnt from the class readings was the fact that the American Constitution grants Congress the power to create and abolish federal courts. The exception is the Supreme Court which cannot be abolished.

Another interesting aspect of the Judiciary is the different types of Jurisdictions that exist. There are basically two main types of jurisdictions, the subject matter and the personal jurisdiction. Subject matter jurisdictions concern legal matters that the court has authority over.

They include examples like diversity and federal question jurisdiction. Personal jurisdiction on the other hand refers to whether or not a court has authority over an individual or a business entity (O’Connor and Sabato 56).

The dynamic and diverse nature of the American Judiciary has been further heightened when President Barak Obama came into power. A year after coming into office, he made some drastic changes in the general composition of the federal courts.

He has been able to make historical judicial decisions such as the appointment of the first Hispanic woman to the Supreme Court, Justice Sonia Sotomayor. The Obama administration has also seen an increase in minority representation in the judicial system in the form of women and the African-American.

The main reason for such dynamism, as was learnt in the classroom, is the importance of objectivity in the American Judicial System. It is essential that the people in the jury and panel of judges resemble those coming in through the main door of the courtroom.

Finally, the greatest point of contention in the present day Judiciary concerns the role played by the executive in the Judiciary. Currently, the Judiciary budget is handled by the executive. The president also holds the power to nominate the federal judges who, of course, are approved by the senate.

The American Judiciary is indeed a diverse and equally challenging structure of the legal system. Its successes in cases that would otherwise be deemed impossible continue to intrigue the rest of the world’s legal systems.

Works Cited

O’Connor, Karen J. and Larry J. Sabato. American Government: Roots and Reform, 2011 Alternate Edition. New York, NY: Longman Publishers, 2011. Print.

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• ‘R.A.V. v. City of St. Paul’
• U.S. and Canada Constitutions
• Introduction to Business Law
• Chicago (A-D)
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11.1 What Is the Judiciary?

Learning outcomes.

By the end of this section, you will be able to:

• Distinguish between rule of law and rule by law.
• Identify the responsibilities of a judicial system.
• Compare and contrast the different methods states and countries use to select judicial officers.
• Discuss major criticisms of each method of judicial selection.

In Chapter 4: Civil Liberties , you learned that law is a body of rules of conduct, with binding legal force and effect, that is prescribed, recognized, and enforced by a controlling authority. In the world today, that authority is usually the government of a particular area. However, multiple levels of government may have authority in a given place. The power of a governmental body to exercise the highest authority in an area is called sovereignty . If a government has sovereignty over a particular region, that government can create and impose rules on people within the region.

Chapter 4: Civil Liberties also introduced the rule of law , the principle that the government is beholden to its laws, not to any individual or group. Throughout history, many individuals and small groups have become dictators with the sole power to create laws and punish people as they wished, thus employing rule by law . There are still some dictators in the world today, as in North Korea . Dictatorships are oppressive, and dictatorial regimes are prone to corruption. By following the rule of law, robust democracies try to avoid these injustices.

Court Shorts: Rule of Law

In this brief video, United States judges who preside over different types and levels of courts discuss the meaning of the rule of law and the role it plays in our everyday lives.

Recall the four principles of the rule of law:

• Accountability: The government and private actors are accountable under the law. No one is above the law.
• Just laws: The laws are clear, publicized, stable, and applied evenly, and they protect fundamental rights, including the security of persons and property and certain core human rights.
• Open government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient.
• Accessible and impartial dispute resolution: Justice is delivered in a timely manner by competent, ethical, independent, and neutral decision-makers who have adequate resources and reflect the communities they serve.

These principles demonstrate that the government and the people are in a social contract , a voluntary agreement whereby the people consent to abide by specific rules while living in the territory and the government consents to limit itself to acting in accordance with certain standards. This creates a symbiotic relationship between the government and the people, rather than a system based on fear and oppression.

In each democratic country, a constitution sets up the framework for government operations that adhere to these four principles. The constitution formalizes how the country’s government will wield authority and implement powers under that authority. The constitution may be written or unwritten, in one document or several, and titled constitution or basic laws . Whatever its form or title, a constitution establishes the basic government structure for the government’s sovereign territory. It usually creates branches with differing powers that have the ability to check each other in the exercise of those powers. One of the branches that carries out the rule of law in a country is the judicial branch.

The judicial system or judicial branch is the court system that interprets, defends, and applies the law in the government’s name. It is the mechanism for peacefully resolving disputes between individuals. Sometimes people refer to this branch of government as the judiciary, but that can be confusing because the judiciary also refers to the people who work in the judicial branch. Therefore, this chapter will consistently refer to the branch of government as the judicial branch and the people who work in that branch as the judiciary.

The judicial branch serves different purposes in different political systems. For example, in a political system that prioritizes civil rights and liberties, the judiciary working within the judicial branch checks government action and protects individual rights and liberties. In a system in which there is a separation of powers between the branches of government, the judiciary has judicial independence . In these systems, often the courts can perform a judicial review to check government actions. In judicial review , a judge interprets and implements the constitution to ensure that the other branches of government do not violate what it says. Judicial review will be explored later in this chapter.

In contrast, some political systems rely on adherence to strict religious or political standards, creating authoritarian law regimes. In these systems, the judicial branch and the judiciary help impose the government’s approved viewpoint on the citizens through rule by law . In these systems, the judiciary has little independence. The judicial system acts as a source of government control over individual citizens. 3 Tom Ginsburg and Tamir Moustafa identify five primary functions of courts in these authoritarian rule-by-law regimes:

• To establish social control and sideline political opponents
• To bolster a regime’s claim to legal legitimacy
• To strengthen administrative compliance within the state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime
• To facilitate trade and investment
• To implement controversial policies so as to allow political distance from core elements of the regime 4

Justice Handed Over to Dictatorship from the Film Judgment at Nuremberg

The 1961 film Judgment at Nuremberg portrays the military tribunal at which four German judges who served while the Nazis were in power face charges of crimes against humanity. In this clip, the former minister of justice explains changes in the judiciary under the dictatorship of the Third Reich.

In rule-by-law authoritarian regimes, the government suppresses opposition and imposes a specific viewpoint on any part of the government or the population to the extent that human rights violations occur. 5 Iran and North Korea are examples of rule-by-law authoritarian regimes. The dictatorial leader of North Korea is selected to a lifetime appointment on a state-approved ballot where only one candidate is listed. This leader has control over the judiciary, and all must adhere to the leader’s will or face retribution. 6

Other countries have come to have an authoritarian-populist judiciary . This means that, through changes instituted by one ruling person or political party, they have transitioned from a rule-of-law system to a rule-by-law authoritarian subsystem. In Turkey, longtime president Recep Tayyip Erdoğan and his ruling party replaced the governmental system in 2017 and have enacted laws to keep themselves in power. Changes in 2007, 2010, and 2017 gave Erdoğan and his ruling party the ability to appoint and dismiss prosecutors and judges, thus calling into question the independence of the judiciary. 7 A European Commission report in 2020 found that the continued centralization of power in the president was blurring the lines of separation of powers in the branches of government such that few checks and balances remain: “Under these conditions, the serious backsliding of the respect for democratic standards, the rule of law, and fundamental freedoms continued.” 8 The report identified significant issues with the Turkish judicial system and its slide into rule by law, not the rule of law:

“Turkey’s judicial system is at an early stage of preparation and serious backsliding continued during the reporting period. Concerns remained, in particular over the systemic lack of independence of the judiciary. The president announced the Judicial Reform Strategy for 2019–2023 in May 2019. However, it falls short of addressing key shortcomings regarding the independence of the judiciary. No measures were announced to remedy the concerns identified by the Council of Europe’s Venice Commission and in the European Commission’s annual country reports. There are concerns that dismissals in the absence of respect for due procedures caused self-censorship and intimidation within the judiciary. No measures were taken to change the structure of, and process for, the selection of members of the Council of Judges and Prosecutors to strengthen its independence. Concerns regarding the lack of objective, merit-based, uniform and pre-established criteria for recruiting and promoting judges and prosecutors persisted. No changes were made to the institution of criminal judges of peace so that concerns regarding their jurisdiction and practice remained.” 9

One can thus see the difference between the rule of law and rule by law. Each judicial system can be assessed on the basis of how well it meets the rule-of-law criteria for protecting the rights of the people from government overreach, manipulation, and the rise of dictatorships.

How the Judicial Branch Differs from the Other Branches of Government

Judicial branches differ from the executive and legislative branches because, unlike in those branches, the judicial system restricts how the courts may act and how the people may express their opinions to the courts. A good description of this restriction appears in Federalist no. 78, wherein Alexander Hamilton wrote about the judicial branch as it is described in the US Constitution:

“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but also holds the sword of the community. The legislature not only commands the purse, but also prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” 10

In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. An example helps illustrate the differences between the branches and their powers. In the United States, a president alarmed at the number of gun shootings occurring in the country can create a commission to review the problem and make recommendations to Congress to enact new laws. The president (the executive) can implement some of these recommendations by executive order , a particular type of binding law that only the chief executive can create. The people can express their views on the subject to the president at any time. Congress (the legislature) may also be alarmed about the number of gun killings. They can open an investigation and create a statute to limit some access to guns. Again, the people can express their views on this subject to Congress at any time. In both examples, government officials decide what they want to investigate and what actions they want to take, and the people can freely voice their opinions on the subject. Courts, however, cannot take action on their own in the ways the executive and legislative branches can, and people cannot express their opinion in court unless they meet particular criteria. A court can only take action if it has jurisdiction over a specific case. Jurisdiction is the written authority, stated in a constitution or a statute, that authorizes a court to hear a case. Jurisdiction includes both the geographical region and the topics of the court’s authority.

What Can I Do?

Critical thinking and the courts.

Every functioning government must have a functioning judicial system. As you study the different forms of judicial systems, how they operate, and elements such as the standards of evidence across different judicial systems, as well as different types of law, you are sharpening your critical thinking skills. Being able to understand and explain why someone is found innocent of a particular crime, for example, requires the ability to analyze, evaluate, and synthesize various pieces of information coming from the defense attorney, the prosecutor, the facts of the case, and the components of the law in question. This is the core of critical thinking, and it is a fundamental skill that is utilized in virtually any career. Critical thinking skills are highly valued, and they take work and practice to develop. Studying topics such as courts and judiciary systems is a good way not only to prepare for a career within the legal world—as an attorney, for example—but also to hone general critical thinking skills that are invaluable regardless of what direction your professional path in life takes.

Selecting Judicial Officers

There are as many ways to select judicial officers as there are countries in the world. The particulars of the selection process vary widely by country. The selection process can also differ for different levels or types of courts within a country. All of the selection processes can be sorted into four broad categories:

• Appointment for life
• Appointment for a specified number of years
• Hybrid, or a combination of these methods (e.g., appointment followed by retention election)

Lifetime Appointments

The US Constitution establishes a Supreme Court of the United States (SCOTUS) and authorizes Congress to create other Article III courts . 11 The judges for these courts are nominated by the president and confirmed by the US Senate. These Article III judges serve for life, as long as they remain on “good behavior.” There is no mandatory retirement age. These courts have the power of judicial review and, once appointed, are independent of the other branches of government.

Congress can change any court’s jurisdiction except SCOTUS’s original jurisdiction . Still, neither Congress nor the president can fire a judge nor stop the judge’s salary if they disagree with a decision the judge makes. Thus, the judiciary in the United States has some measure of independence, but judges are often subject to political pressure during the appointment process.

Article III courts include the United States Supreme Court, US circuit courts of appeals , and US district courts . There is only one SCOTUS, but there are 13 circuit courts of appeals and about 100 district courts. All have multiple judges, so the power to appoint judges is a substantial one. Moreover, because these judges are appointed for life, a president can influence the interpretation of the law and the Constitution well beyond that president’s term of office. As noted by legal scholar Alexander Bickel , “You shoot an arrow into a far distant future when you appoint a [US federal] justice, and not the man himself can tell you what he will think about some of the problems that he will face.” 12

THE CHANGING POLITICAL LANDSCAPE

Women on high courts around the world.

While gender representation on high court benches across the globe skews toward men, studies suggest that the rate of women on judiciaries in countries around the world rose by about 29 percent between 2011 and 2019. Research suggests that a high court judge’s gender may be a better predictor of how they will decide a case than their political leanings and that the gender composition of a court can influence how individual judges view a case. 13

Ethiopia’s First Female Supreme Court Chief Justice: Meaza Ashenafi

In this clip, Meaza Ashenafi, the first ever female Chief Justice on Ethiopia's Supreme Court, talks about how she worked to define sexual harassment and violence against women in the Amharic language, the official language of Ethiopia. She goes on to discuss the importance of the impartiality of the courts and the role courts play in serving their communities.

The lifetime appointment of judges outside the United States is rare. Even in countries that say they appoint certain judges to lifetime terms, these judges are held to a mandatory retirement age. 14 For example, in the United Kingdom, Supreme Court justices are not subject to term limits , but they must retire by age 70. 15 Additionally, in the United Kingdom, there are minimum requirements for nomination, and a nominating commission reviews applicants. Finally, this type of appointment applies only to a particular court, not to all courts in a broad category, as in the United States.

In Belgium, the monarch appoints constitutional court judges from a list of candidates submitted by Parliament. 16 As in the UK, these judges are appointed for life with mandatory retirement at age 70. The monarch selects judges for the supreme court, the Court of Cassation, from candidates submitted by the High Council of Justice, an independent 44-member body consisting of both judicial and nonjudicial members. Like constitutional court judges, Court of Cassation judges are appointed for life with a mandatory retirement age of 70. 17

Recent discussions in the United States have debated instating a mandatory retirement age or setting a term limit for Article III judges. 18

Appointment for a Term of Years

There is a second type of US federal judge: those appointed for a term of years. Congress, in creating these courts, specifies the qualifications of the judge and the term of service. 19 Potential judges apply for the office as one would apply for any other job. A hiring committee selects the judge. Several US states also appoint some of their judges for a term of years. The process for an appointment varies by state. 20

Many countries appoint some of their judges for a term of years, though the processes by which they do so differ. 21 For example, in Albania, the president alone makes some nine-year appointments. 22 On the other hand, the Chinese legislature, the People’s National Congress, appoints the chief justice of their national supreme court for a limit of two consecutive five-year terms. 23 To be considered for most judicial appointments in France, an attorney must pass a series of entrance examinations. 24 They must then attend special classes and pass a series of difficult examinations to be eligible for an appointment as a judge. The Ministry of Justice oversees this process without any executive input.

Appointment by Election

A few US states use a rare process, election, to select some judges. In a 1988 speech, Hans Linde , a former justice of the Oregon Supreme Court, said “To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system.” 25

When judges are directly elected, the judiciary is an agent of the government with limited independence. The voters use their votes to pass judgment on judicial decisions in the same way that they use their votes to weigh in on the actions of the executive and legislative branches. Thus, one of the criticisms of judicial elections is that they incentivize judges to make politically popular decisions that are not necessarily correct interpretations of the law.

Different US states employ different types of judicial elections. A candidate’s political party is listed on the ballot in partisan elections , while the candidate’s political affiliation is not listed in nonpartisan elections . Many states have moved away from direct elections and toward retention elections. In a retention election , a judge is appointed for a term of years, and at the end of that term, an election is held to determine if the judge should be retained for another term or replaced. 26

Texas is one of the few states that still holds partisan elections for almost all judgeships in the state. 27 As a result, candidates run for office just like all other elected officials. They align with a political party, receive the majority vote in the party’s primary election, and campaign showing their affiliation to the party. Most other states have moved away from this selection style because of issues with partisanship, such as the appearance of impropriety when someone makes a large campaign contribution before appearing before the court and the instability of a process that selects candidates based on political popularity rather than legal expertise. 28 Texas has been the object of scrutiny for allegations of favoritism to campaign donors and political party influence on judges. 29 As a result, there is pressure from a number of corners, including former and current judges, to change this system. 30 About 13 states still hold nonpartisan elections for some of their judgeships. These states assert that this enables people to have a say in the judiciary while removing political partisanship from the selection process. 31

Former Chief Justice of the Texas Supreme Court Wallace Jefferson on Electing Judges in Texas

In this clip, former Chief Justice of the Texas Supreme Court Wallace Jefferson weighs in on how he believes the state of Texas should select judges.

Switzerland also holds judicial elections in which the Federal Assembly, their legislative branch, elects judges to six-year terms. 32 A few other countries also hold some judicial elections.

Hybrid or Mixed Selection

Many countries have a hybrid system , with a mix of appointments for term and appointments for life depending on the type of court. 33 A couple of countries and a few US states have both appointments and elections. One common hybrid selection system used in several countries is an appointment with review after one term. In Japan, the chief justice of the Supreme Court is designated by the Cabinet and appointed by the monarch, while associate justices are appointed by the Cabinet and confirmed by the monarch. All justices are subject to a popular referendum at the first general election after their appointment and every 10 years thereafter. 34

Several US states use a hybrid system known as retention or the Missouri Plan . This system has gained popularity in the United States over the last 50 years. 35 In a retention system, the executive initially appoints a judge, with legislative approval, similar to the federal appointment process. The appointed person serves for a term of years. After this initial term, if a judge wants to remain in office, they must run in a retention election. There is no opposing candidate in a retention election; people vote on whether to keep or replace the judge. The judge runs on their record, and their party affiliation typically is not listed on the ballot. A retained judge remains in office for another term. In some states, there is a limit to the number of retention terms a judge may serve. If the judge is not retained, then the process starts again with new nominees and appointments. This style appeals to many Americans because it limits campaigning and political party influence over the judiciary while allowing the people some say over the judicial officers.

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The US Judiciary: Pillar of Democracy

The us judiciary: guardians of justice, introduction.

The United States Judiciary, often referred to as the third branch of government, holds a pivotal role in upholding justice and preserving democracy in the nation. It serves as the final arbiter of disputes, interprets the Constitution, and checks the power of the other branches of government. In this comprehensive 3,000-word essay, we will explore the intricate workings of the US Judiciary, examining its historical roots, structure, functions, and its indispensable role in safeguarding the rule of law in the United States.

Historical Background

The roots of the US Judiciary system can be traced back to the founding of the nation. It emerged as a response to the need for a fair and impartial institution that could interpret laws, resolve conflicts, and ensure that justice prevailed. As the United States transformed from a collection of colonies to a unified nation, the Judiciary underwent significant developments and faced defining moments that shaped its current form.

One of the most crucial milestones in the history of the US Judiciary was the ratification of the United States Constitution in 1787. The Constitution established the framework for the federal government and outlined the powers and responsibilities of each branch. Article III of the Constitution specifically addresses the judiciary, establishing the Supreme Court and granting Congress the authority to create lower federal courts. This foundational document laid the groundwork for the modern judiciary and its role in American governance.

Throughout the early years of the Republic, the Judiciary faced numerous challenges and controversies. The landmark case of Marbury v. Madison in 1803 solidified the principle of judicial review, allowing the courts to review and potentially invalidate actions of the other branches of government that were deemed unconstitutional. This decision established the Judiciary as an essential check on the powers of the Executive and Legislative branches.

Over time, the Judiciary continued to evolve, with significant decisions like Dred Scott v. Sandford, which highlighted the tension between federal law and state law in matters of slavery, and Brown v. Board of Education, which addressed issues of racial segregation in public schools, reshaping the course of American history. These pivotal moments underscored the Judiciary’s role as a dynamic force in shaping the nation’s legal landscape.

Structure of the US Judiciary

The US Judiciary comprises a complex framework of federal and state courts, each with distinct roles and jurisdictions. Understanding this structure is essential to grasp how justice is administered in the United States.

Federal vs. State Court Systems

At the broadest level, the US Judiciary is divided into two primary systems: the federal court system and the state court systems. The federal court system deals with cases involving federal law, the Constitution, and disputes between states or citizens of different states. State court systems, on the other hand, handle cases related to state laws, including criminal matters, family law, and civil disputes.

Three-Tiered Federal Court Structure

The federal court system is structured in three tiers, each with its own set of responsibilities:

• Supreme Court: At the apex of the federal judiciary, the Supreme Court is the highest court in the land. It consists of nine justices who are appointed for life. The Supreme Court has the authority to review cases from lower federal and state courts, ensuring consistency in the interpretation of federal law and the Constitution.
• Courts of Appeals: Beneath the Supreme Court are the Courts of Appeals, also known as Circuit Courts. There are 13 federal appellate circuits, each covering a specific geographic region. These courts review decisions made in district courts and handle appeals in cases involving federal law. They play a critical role in shaping legal precedent.
• District Courts: The foundation of the federal court system, district courts are trial courts where most federal cases begin. There are 94 federal judicial districts across the United States. District courts handle both civil and criminal cases, conducting trials, and rendering initial judgments.

Nomination and Appointment of Federal Judges

The appointment of federal judges is a highly significant process that can have long-lasting effects on the nation’s legal landscape. Federal judges, including those on the Supreme Court, are nominated by the President and must be confirmed by the Senate. This process aims to ensure that judges possess the qualifications, temperament, and legal expertise necessary to serve impartially.

Functions and Powers of the Judiciary

The US Judiciary is not only responsible for resolving legal disputes but also for interpreting the Constitution and ensuring that laws align with the nation’s fundamental principles. Understanding its functions and powers is crucial in comprehending its role in the American system of governance.

Interpretation of the Constitution

One of the Judiciary’s primary functions is to interpret the United States Constitution. This role was firmly established in the landmark case of Marbury v. Madison (1803), in which the Supreme Court asserted its power of judicial review. Judicial review allows the courts to examine the constitutionality of actions taken by the other branches of government and, if necessary, declare them unconstitutional. This power serves as a critical check on potential abuses of power by the Executive and Legislative branches.

Throughout American history, the Judiciary has played a central role in shaping the interpretation of the Constitution. Notable decisions, such as Brown v. Board of Education (1954), which struck down racial segregation in public schools, and Roe v. Wade (1973), which established a woman’s right to abortion, have had a profound impact on the nation’s social and legal landscape.

Adjudication of Disputes

The Judiciary is responsible for adjudicating a wide range of disputes, both civil and criminal. Civil cases involve conflicts between individuals, organizations, or government entities and often revolve around issues such as contracts, property disputes, and personal injury. Criminal cases, on the other hand, involve violations of criminal law and can result in penalties such as imprisonment or fines.

One key aspect of the Judiciary’s role in dispute resolution is the reliance on precedent. Precedent refers to previous court decisions that serve as a basis for current judgments. Courts often consider prior cases with similar legal issues when making decisions, aiming to ensure consistency and predictability in the legal system.

Checks and Balances

The concept of checks and balances is fundamental to the US system of government, and the Judiciary plays a crucial part in this framework. By reviewing the actions of the Executive and Legislative branches, the Judiciary helps maintain the balance of power and prevents any one branch from becoming too dominant.

Judicial review, as mentioned earlier, is a powerful tool for enforcing checks and balances. It allows the Judiciary to invalidate laws or executive actions that are deemed unconstitutional. This mechanism ensures that the government operates within the bounds of the Constitution, preserving the rule of law and protecting individual rights.

The Role of the Judiciary in Democracy

The US Judiciary’s role in democracy is multifaceted, as it serves as a protector of individual rights, a guardian of the rule of law, and an agent for social change. Understanding how the Judiciary upholds democratic principles is essential to appreciate its significance in American governance.

Protection of Individual Rights and Liberties

The Bill of Rights, the first ten amendments to the Constitution, safeguards individual rights and liberties. The Judiciary plays a central role in interpreting and enforcing these rights, ensuring that they are not violated by government actions. Landmark cases like Miranda v. Arizona (1966), which established the right to remain silent and have an attorney present during police interrogations, exemplify the Judiciary’s commitment to protecting individual liberties.

Furthermore, the Judiciary addresses controversial and challenging issues that test the boundaries of individual rights, such as freedom of speech, religious freedom, and the right to privacy. Through its decisions, the Judiciary shapes the legal landscape, often striking a delicate balance between individual freedoms and the broader interests of society.

Safeguarding the Rule of Law

The Judiciary is a cornerstone of the rule of law, a fundamental principle that ensures that laws are applied consistently and fairly to all citizens. By upholding the Constitution and reviewing the actions of the government, the Judiciary prevents abuses of power and ensures that public officials are held accountable for their actions.

For example, in the case of United States v. Nixon (1974), the Supreme Court ruled that President Richard Nixon had to turn over the Watergate tapes, reinforcing the idea that no one, not even the President, is above the law. This decision reinforced the importance of accountability and the rule of law in a democratic society.

Promoting Social Change and Justice

While the Judiciary is often seen as a conservative institution, it has also played a vital role in driving social change and advancing justice. The debate between judicial activism and judicial restraint reflects the tension between judges’ willingness to shape policy and their reluctance to intervene in political matters.

Certain landmark decisions, such as Brown v. Board of Education (1954), which desegregated schools, and Obergefell v. Hodges (2015), which legalized same-sex marriage nationwide, are examples of the Judiciary’s role in advancing social progress. These rulings have had a profound impact on American society and demonstrate the Judiciary’s potential to address pressing social issues.

Challenges and Criticisms

While the US Judiciary holds a critical place in the American system of governance, it is not immune to challenges and criticisms. Examining these issues provides insight into the complexities of the judicial system and its interactions with other branches of government and the public.

Judicial Activism vs. Judicial Restraint

One of the ongoing debates surrounding the Judiciary revolves around the balance between judicial activism and judicial restraint. Judicial activism refers to judges taking an active role in shaping public policy and interpreting the Constitution broadly, often to address social or political issues. In contrast, judicial restraint suggests that judges should limit their rulings to strict interpretations of the law and defer to the decisions of elected officials.

Critics of judicial activism argue that it encroaches on the powers of the other branches of government and undermines the principles of democracy by allowing unelected judges to make significant policy decisions. On the other hand, proponents of judicial activism argue that it is necessary to correct injustices and protect minority rights when elected officials fail to do so.

Critiques of the Nomination and Confirmation Process

The nomination and confirmation process for federal judges, particularly those nominated to the Supreme Court, has become increasingly contentious and politically charged. Presidents often nominate judges who align with their political ideologies, and the Senate’s confirmation process has become a battleground for partisan politics.

Critics argue that this polarization threatens the independence and impartiality of the Judiciary, as judges may feel pressured to make decisions that align with the preferences of the party that appointed them. The “court-packing” debate, which involves altering the number of Supreme Court justices, has also emerged as a contentious issue, further fueling concerns about the politicization of the Judiciary.

Public Perception and Implications

Public perception of the Judiciary is another area of concern. When citizens lose trust in the impartiality and fairness of the courts, it can erode the Judiciary’s authority and legitimacy. Recent surveys have shown a decline in public confidence in the Supreme Court, indicating the potential consequences of these challenges and criticisms.

Furthermore, the Judiciary’s decisions often have far-reaching implications for society. Controversial rulings can lead to public outcry and political debates, highlighting the Judiciary’s role as a powerful force in shaping policy and social norms.

In conclusion, the US Judiciary faces various challenges and criticisms, from debates over judicial activism to concerns about the nomination and confirmation process and the erosion of public trust. Addressing these issues is essential to maintain the Judiciary’s vital role in upholding justice and democracy in the United States.

In the tapestry of American governance, the US Judiciary emerges as a resilient and indispensable thread, weaving together the fabric of justice and democracy. Over the course of this essay, we have delved into the historical roots, the complex structure, the multifaceted functions, and the crucial role of the Judiciary in safeguarding the rule of law and preserving the democratic principles upon which the nation was founded.

From its inception as a fledgling experiment in the late 18th century to its current status as the ultimate arbiter of constitutional matters, the US Judiciary has been at the forefront of defining the nation’s legal landscape. It has navigated through landmark decisions, challenging controversies, and evolving societal norms, adapting while upholding the principles of justice and fairness.

The structure of the Judiciary, with its three-tiered federal system and lifetime-appointed judges, ensures continuity and consistency in the interpretation of laws and the Constitution. Its power of judicial review, established in the seminal case of Marbury v. Madison, has become a cornerstone of American democracy, holding the Executive and Legislative branches accountable and preserving the integrity of the Constitution.

Moreover, the Judiciary’s role as a protector of individual rights and liberties, a guardian of the rule of law, and an agent for social change underscores its dynamic and ever-evolving character. Landmark decisions such as Brown v. Board of Education and Obergefell v. Hodges bear witness to the Judiciary’s ability to adapt to societal changes and address pressing issues with courage and conviction.

However, the US Judiciary is not without its challenges and criticisms. The ongoing debate between judicial activism and judicial restraint, the politicization of the nomination and confirmation process, and concerns about public perception pose significant hurdles. Yet, it is precisely in facing and addressing these challenges that the Judiciary reaffirms its commitment to justice and the principles upon which the United States was founded.

In the midst of these complexities and controversies, one fact remains clear: the US Judiciary stands as a pillar of democracy, ensuring that the nation remains a land where justice prevails, rights are protected, and the rule of law endures. As we look to the future, it is essential to recognize and appreciate the vital role that the Judiciary plays in the ongoing story of American governance, for it is a story of justice, equality, and the pursuit of a more perfect union.

The Judiciary: An Essay

The history of the federal judiciary.

The power of the Supreme Court evolved slowly. In the first three years of the nation’s existence, the justices did not hear any cases at all. The Supreme Court’s immediate priority was to establish its institutional legitimacy. This goal was accomplished in a series of developments under the leadership of Chief justice John Marshall:

(1) defeat of the impeachment proceeding, based purely on political charges, against justice Samuel Chase that validated the doctrine of judicial independence; (2) the issuance of a single majority opinion that enabled the Court to speak with one authoritative voice in lieu of each justice writing separately; and (3) assumption of the power of judicial review in Marbury v. Madison (1803), making the Supreme Court an equal partner in the governing process with Congress and the president.

Once secure in its position, the Supreme Court turned to the task of adjudication. The history of Supreme Court decision-making falls into three eras differentiated by the type of issue that dominated judicial attention during a particular period of time.

1 . From 1787 to 1861, federal-state relations and slavery were the great issues. In Martin v. Hunter’s Lessee (1816) , the Court asserted its right to impose binding interpretations of federal law upon state courts. Three years later, McCulloch v. Maryland (1819) upheld the supremacy of the federal government in a conflict with a state over a matter not clearly assigned to federal authority by the Constitution. Although federal preeminence was written into constitutional theory, it was not until after the Civil War that the theory applied in practice. In fact, the Court played an important role in intensifying regional tensions through its decision in Dred Scott v. Sandford (1857), in which federal law (the Missouri Compromise) prohibiting slavery in northern territories was ruled unconstitutional. This decision, moreover, was only the second time that a federal law was declared unconstitutional by the Supreme Court. The Court’s reluctance to use judicial review attests to its still uncertain status in the early part of the nineteenth century. 2. From the Civil War to 1937, the dominant issue was the relationship between government and the economy. The Court acted to support property rights and held that the due process clause of the Fourteenth Amendment protected commercial enterprises from some forms of regulation. The justices were merely reflecting the prevailing laissez-faire philosophy of the time. The Court, however, was not blind to the injustices of capitalism and upheld state regulations in over 80% of such cases between 1887 and 1910. As the justices attempted to balance the public interest against private property rights, their decisions became riddled with inconsistencies in distinguishing  reasonable from unreasonable regulation or in separating  interstate from intrastate commerce. According to justice Holmes,  the Court had lost sight of its mission by forgetting that “a  Constitution is not intended to embody a particular economic  theory.” The necessities of the Great Depression would compel a  revision in constitutional theory on economic issues. 3. From 1938 to the present, the Court has switched its focus to the protection of personal liberties. This change was partially prompted by the political pressure generated by Franklin Roosevelt’s unsuccessful effort to pack the Supreme Court with justices favorable to his New Deal economic package. As the Court allowed the government a freer hand on economic regulation, it took up the challenges presented by social and political upheaval following World War 11, such as free speech and racial integration. Only recently has the number of civil liberties cases in the Court’s docket begun to shrink, perhaps as a reaction to the conservative majority appointed by Presidents Reagan and Bush.

The Supreme Court in Action

The Supreme Court hears oral arguments beginning at ten in the morning, with each attorney typically allocated a half-hour. Justices are permitted to interrupt attorneys to ask questions at any time, and the clock is not stopped no matter how long the question. Attorneys are not allowed to read but may use notes. Lights indicate how much time is left-a white one signaling five minutes and a red light notifying attorneys to stop. The proceedings are taped but are not aired on radio or television.

The justices meet in secret conference to discuss and vote on cases. No one is permitted in the room. The associate justice with the least seniority has the responsibility of running errands to obtain books or answering knocks at the door. The conference by tradition commences with a handshake. The chief justice speaks first on cases and is followed by justices in order of seniority; votes are taken in reverse sequence on the assumption that junior members may be interested in voting last. During the tenure of Chief Justice Burger, a pattern began in which formal votes were often not taken and the chief interpreted the outcome of the case. If in the majority, the chief justice assigns the writing of the opinion; if in the minority, the associate justice with the most seniority has the duty of assigning the writing of the Court’s opinion. The opinion is circulated in draft form to the other justices who may suggest changes, even on the threat of changing their vote. It sometimes happens that what began as a majority opinion may lose enough support to end up as a dissenting opinion. A justice is permitted to change his or her vote until a judgment is announced in open session.

The entire Court is not required to be present to vote on a case. A quorum exists so long as six justices are participating. In a tie vote, the decision of the last court to hear the case prevails but it does not mean that the justices are expressing agreement with the ruling; the vote of each justice is not publicly revealed in such situations.

The recent trend on the Supreme Court is greater fragmentation in voting. Far fewer decisions are decided unanimously, declining from close to 90 percent in the nineteenth century to 38.7 percent in 1995. justices are more willing to articulate their own views and are producing a higher rate of both  concurring and dissenting opinions. Concurring opinions are important in establishing whether the Court’s decision is creating precedent. “Occasionally,” Lawrence Baum explains, “because of disagreement about the rationale, no opinion gains the support of a majority of judges; in this situation, there is a decision but no authoritative interpretation of the legal issues in the case.”

The Power of the Federal Judiciary

Courts play a large role in public policy in the United States. The Supreme Court’s chief weapon in the constitutional system of checks and balances is judicial review,  the power to declare laws of Congress and acts of the executive branch unconstitutional and therefore void. There are two competing views of how judicial review should be exercised. The strict constructionist approach holds that judges should confine themselves to applying those rules that are stated in or clearly implied by the language of the Constitution. The activist approach argues that judges should discover the general principles underlying the Constitution and amplify those principles on the basis of some moral or economic philosophy. Today judicial activists tend to be liberals, and strict constructionists tend to be conservatives, but fifty years ago just the opposite was the case.

The Founders would be surprised to find the courts so activist. They believed that judges should find and apply existing law, not make new law. Alexander Hamilton wrote in  Federalist No. 78 that “liberty can have nothing to fear from the judiciary alone,” because the courts have neither the power of the purse (which Congress has) nor the use of the military (since the president is commander-in-chief).

To use the courts to influence public policy, one has to get to court. To do this requires resources and it requires standing. The average citizen has no chance of paying the high costs necessary to take a case all the way to the Supreme Court. However, there are numerous ways in which plaintiffs who are of average or even low income can have their interests represented in court. First, indigent persons can file petitions in  forma pauperis and be heard for nothing. The Gideon  case was an example. A variety of interest groups (such as the ACLU or the NAACP) will take cases that promote their purposes. State and local governments often raise important issues, and they have their own attorneys. Although the traditional practice in American courts is that parties to a lawsuit pay their own legal expenses, Congress increasingly has been passing laws that allow individuals to sue government and corporations and have their legal fees paid by the defendant. Finally, class-action suits allow a plaintiff to sue someone, not merely on his or her own behalf, but on behalf of all persons in similar circumstances. Some cases of this sort are not profitable to bring: The NAACP got no money for winning the Brown  case. However, when money damages can be won on behalf of a large group of people, lawyers can reap huge rewards, so lawyers willing to take on such cases are readily found. The Supreme Court has restricted class-action suits since 1974.

The concept of standing is not a constitutional requirement. It was created by judicial interpretation of a provision in Article III that restricts federal courts to “cases and controversies.” The problem is defining what constitutes a “case” or a “controversy.” According to Chief justice Warren, “those words limit the business of the federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process.” Standing is the term used to embody these principles. As currently construed by the Supreme Court, it means a court will decline to hear a case unless the complaining party (plaintiff) proves that a genuine conflict exists between the parties and that he or she has suffered a personal injury to a legally protected right. In other words, federal courts will not hear hypothetical issues. A conflict must be genuine. Moreover, the injury must be a personal one, not a remote injury. However, since standing is largely a product of judicial invention, it is sometimes ignored when a situation warrants settlement by a court. For example, every abortion case would technically be moot because the pregnancy would long be over by the time an appeal reached the Supreme Court; the doctrine of standing has been relaxed in these appeals on the ground that the issue was “capable of repetition yet evading review.”

Another traditional barrier to the citizen’s right to sue is the doctrine of sovereign immunity, which refuses standing to citizens seeking to bring suit against the government for damages. “The doctrine of government immunity,” Harold Grilliot has written, “. . . originated from the English notion that ‘the king can do no wrong.'” This restriction has been eased in two ways. On the one hand, Congress has waived federal immunity from certain lawsuits, including most claims involving torts (since 1946) and contract violations (since 1855). On the other hand, federal officials are not protected by sovereign immunity for conduct that exceeds their lawful authority. In addition, the Eleventh Amendment prevents a state from being sued in federal court without its consent.

Once a case is taken by a federal court, the outcome can exert profound influence over public policy. Federal judges have at least four avenues for making policy decisions. First, a congressional statute or presidential action can be ruled unconstitutional. The Supreme Court has voided over 120 federal laws under its power of judicial review. Second, national policy can be changed whenever the Supreme Court opts to decide an issue differently. The doctrine of stare decisis, or the practice of following precedent, is not inflexible and can be repudiated whenever justice demands a break with prior decisions. As justice Frankfurter eloquently put it, “Wisdom too often never comes, and so one ought not to reject it merely because it comes late.” Third, the Supreme Court has become less likely to leave certain questions (such as apportionment and contraception) to other branches by declaring them political questions and therefore not proper subjects for judicial resolution. The result has been to place the federal judiciary in the midst of numerous controversial disputes. And fourth, judges retain a great deal of power in fashioning  remedies, sometimes to the point of micromanaging what is needed to accomplish justice. For example, federal judge Frank Johnson, in correcting conditions at an Alabama mental health institution, went so far as to require that toilets must be “free of odor” and that each patient must have a .comfortable bed.”

Those who favor judicial activism point to outcomes of which they approve and say that courts provide representation to the poor and powerless. Opponents say that courts have no special expertise in managing complex institutions and have difficulty balancing competing interests in complex cases. Further, if judges make (rather than merely interpret) law, they become unelected legislators, contrary to the intent of the Constitution.

The reasons for judicial activism are many. It is not the case that the courts are powerful because we have so many lawyers. America had more lawyers per capita in 1900, when the courts played a more limited role. Due to class-action and  Section 1983 suits, it has become easier for persons to get into court. Increasingly, Congress has passed vague laws that require bureaucratic interpretation. Laws outlaw discrimination or require that agencies operate in the public interest without defining either. Parties adversely affected by decisions under vague laws challenge them in court. If courts once existed solely to settle disputes, today they also exist, in the eyes of their members, to solve problems. Finally, courts have become more powerful as government in general has become more powerful.

There are checks on judicial power. A judge has no police force or army, and a person can disobey if the act is not highly visible and if he is willing to risk being charged with contempt of court. The Senate must approve judicial nominees, and Congress has the power to impeach federal judges. Neither of these powers amounts to much, because simple policy disagreements are not considered sufficient to warrant the exercise of either of these prerogatives. Congress can change the number of judges either on the Supreme Court or in the lower federal judiciary. Congress and the states can amend the Constitution. Congress can alter the jurisdiction of the federal courts and prevent them from hearing certain kinds of cases. All of these checks have their limits. Amending the Constitution is difficult. Attempts to change the size of the Court, like the Roosevelt court-packing plan, are likely to run into opposition from a public that still accords considerable prestige to the Court. The Supreme Court might rule attempts to limit the jurisdiction of the courts unconstitutional. Presidential attempts to produce a less activist Supreme Court have largely failed.

Executive Privilege

Although executive privilege-the right of a president to claim confidentiality in communications with principal advisers-was always viewed with some disfavor by the Congress, it was not directly challenged until 1973. In that year, a congressional investigation of the Watergate break-in led a special investigator to request tape recordings of Oval Office conversations. President Nixon refused to comply with this subpoena, citing executive privilege. The federal district court, although viewing the tapes as presumptively within the realm of executive privilege, nonetheless concluded that the arguments of the special prosecutor were sufficient to rebut such a position. The case, U.S. v. Mxon (418 U.S. 683 [19741), was then taken to the Supreme Court.

The Court ruled, by a vote of 8-0, that executive privilege did not protect the president in this instance.

The crucial passages of the opinion follow.

[N]either the doctrine of separation of powers, nor the need for confidentiality of high level communications … can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances. The President’s need for complete candor and objectivity from advisers calls for great deference from the courts. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in ca?nera inspection…. We conclude then when the ground for asserting privilege as to subpoenaed materials sought for use in a criminal trial is based only on the generalized interest in confidentiality, it cannot prevail over the fundamental demands of due process of law in the fair administration of criminal justice. The generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial. (pp. 706, 713)

Nixon did surrender the tapes, which ultimately provided evidence of his knowledge of the Watergate break-in. In 1975, the House voted for his impeachment; Nixon subsequently resigned rather than face a Senate hearing.

Frequently Asked Questions about the US Judiciary

The role of the US Judiciary in the American system of government is multifaceted and pivotal. At its core, the Judiciary serves as the third branch of the government, alongside the Executive and Legislative branches. Its primary functions include interpreting the Constitution, resolving disputes, and safeguarding the rule of law.

One of the most critical aspects of the Judiciary’s role is its power of judicial review, established by the landmark case of Marbury v. Madison in 1803. Judicial review allows the courts to examine the constitutionality of laws and actions taken by the other branches of government. This power ensures that the government operates within the confines of the Constitution and prevents potential abuses of power.

Furthermore, the Judiciary plays a vital role in protecting individual rights and liberties. It enforces the Bill of Rights and other constitutional amendments, ensuring that citizens’ freedoms are preserved. The Supreme Court, in particular, has made significant decisions on issues like freedom of speech, privacy, and equal protection under the law.

In a broader sense, the Judiciary upholds the rule of law, ensuring that laws are applied consistently and fairly to all citizens. It acts as a check on the powers of the Executive and Legislative branches, maintaining the delicate balance of power that is fundamental to the American system of government.

The US Judiciary is structured as a complex system of federal and state courts, each with distinct roles and jurisdictions. Understanding this structure is essential to grasp how justice is administered in the United States.

Federal vs. State Court Systems: The US Judiciary consists of two primary systems: the federal court system and the state court systems. Federal courts handle cases involving federal law, the Constitution, and disputes between states or citizens of different states. State courts, on the other hand, deal with cases related to state laws, including criminal matters, family law, and civil disputes.

Three-Tiered Federal Court Structure: The federal court system is divided into three tiers, each with specific responsibilities:

• Supreme Court: At the top is the Supreme Court, the highest court in the land. It comprises nine justices appointed for life. The Supreme Court has the authority to review cases from lower federal and state courts, ensuring consistency in the interpretation of federal law and the Constitution.
• Courts of Appeals (Circuit Courts): Below the Supreme Court are the Courts of Appeals, also known as Circuit Courts. There are 13 federal appellate circuits, each covering a specific geographic region. These courts review decisions made in district courts and handle appeals in cases involving federal law, contributing to the development of legal precedent.
• District Courts: The foundation of the federal court system is the District Courts. There are 94 federal judicial districts across the United States. District courts handle both civil and criminal cases, conducting trials and rendering initial judgments.

Nomination and Appointment of Federal Judges: Federal judges, including those on the Supreme Court, are nominated by the President and must be confirmed by the Senate. This process aims to ensure that judges possess the qualifications, temperament, and legal expertise necessary to serve impartially. The lifetime appointments of federal judges underscore the significance of this selection process.

Understanding this hierarchical structure is crucial for comprehending how cases progress through the federal court system and how legal precedents are established.

The power of judicial review is a fundamental and distinctive function of the US Judiciary. It allows the courts, particularly the federal courts, to review and potentially invalidate actions taken by the other branches of government (Executive and Legislative) that are deemed unconstitutional. Judicial review ensures that government actions comply with the United States Constitution, making it a vital check on potential abuses of power.

The concept of judicial review was firmly established in the landmark case of Marbury v. Madison (1803), in which Chief Justice John Marshall argued that it is the duty of the Judiciary to interpret the Constitution and determine whether laws and executive actions are in accordance with it. Marshall famously stated that “a law repugnant to the Constitution is void.”

Here’s how judicial review works in practice:

Legal Challenge: To initiate a judicial review, there must be a legal challenge. This typically involves a lawsuit where a party asserts that a particular law or government action is unconstitutional.

Court Proceedings: The case proceeds through the court system, starting at the district court level and potentially progressing to the Courts of Appeals and, ultimately, the Supreme Court, depending on the significance and complexity of the issue.

Constitutional Analysis: During the proceedings, the court engages in a thorough constitutional analysis. It examines the text of the Constitution, relevant legal precedents, and the arguments presented by the parties involved.

Decision: The court issues a decision, either upholding the law or action as constitutional or declaring it unconstitutional. If found unconstitutional, the law or action is considered void and unenforceable.

Precedent: The court’s decision becomes legal precedent, influencing future cases and guiding the interpretation of constitutional issues. It establishes a framework for assessing the constitutionality of similar laws or actions.

Judicial review is a critical mechanism for maintaining the separation of powers and ensuring that all branches of government adhere to the Constitution, preserving the rule of law and individual rights.

The US Judiciary plays a vital role in protecting individual rights and liberties, ensuring that citizens’ freedoms are upheld and that government actions do not infringe upon these rights. This function is crucial in maintaining a just and democratic society.

Enforcement of the Bill of Rights: The Judiciary enforces the Bill of Rights, the first ten amendments to the Constitution, which enumerate key individual rights. These rights include freedom of speech, freedom of religion, the right to bear arms, protection against self-incrimination, and more. When individuals believe their rights have been violated, they can turn to the courts for redress.

Review of Government Actions: The Judiciary reviews government actions, including those of federal, state, and local authorities, to ensure they comply with constitutional guarantees. This includes cases involving law enforcement practices, government surveillance, and restrictions on free speech.

Preventing Unlawful Detention: The Judiciary protects individuals from unlawful detention and ensures that due process rights are upheld. For example, the writ of habeas corpus allows individuals to challenge their imprisonment, asserting that they are being held without legal cause.

Equal Protection Under the Law: The Judiciary safeguards the principle of equal protection under the law, ensuring that all citizens are treated fairly and without discrimination. This has been particularly important in cases addressing racial segregation, discrimination based on gender or sexual orientation, and other forms of bias.

Privacy Rights: The Judiciary has played a significant role in defining and protecting privacy rights, especially in the context of emerging technologies and surveillance practices. Cases like Roe v. Wade (1973) and Lawrence v. Texas (2003) have upheld the right to privacy in reproductive decisions and intimate relationships.

Balancing Individual Rights and Public Interests: The Judiciary faces the challenge of balancing individual rights against compelling public interests, such as national security or public safety. Courts carefully consider the facts and circumstances of each case to strike

Lifetime appointments for federal judges, including those on the Supreme Court, are a distinctive feature of the US Judiciary. They serve several important purposes:

Judicial Independence: Lifetime appointments insulate judges from political pressures that could influence their decisions. Judges are free to make impartial judgments without fear of losing their positions due to political changes.

Stability and Consistency: Federal judges, particularly those on the Supreme Court, provide stability and consistency in legal interpretation over time. This continuity helps maintain the integrity of the legal system and ensures that legal precedents are not subject to abrupt shifts.

Preservation of Judicial Expertise: Federal judges often accumulate extensive legal expertise throughout their careers. Lifetime appointments allow them to contribute their knowledge and experience to the judiciary for an extended period, benefiting the legal system as a whole.

Protection of Individual Rights: The lifetime tenure of federal judges helps protect individual rights and liberties from potential political interference. Judges can make decisions based on the law and the Constitution without concern for short-term political consequences.

However, lifetime appointments also raise challenges, such as the potential for judges to remain on the bench long after their abilities or perspectives have evolved. Balancing the advantages of judicial independence with the need for accountability and adaptability remains a subject of debate.

The US system of government relies on a system of checks and balances, with each branch—Executive, Legislative, and Judiciary—exercising specific powers that help prevent any one branch from becoming too powerful. The checks and balances involving the US Judiciary include:

Judicial Review: The Judiciary, particularly the Supreme Court, has the power of judicial review, allowing it to examine and potentially invalidate laws and actions taken by the Executive and Legislative branches that are deemed unconstitutional. This serves as a crucial check on the other branches, ensuring they do not overstep their constitutional bounds.

Appointment and Confirmation: The President nominates federal judges, including Supreme Court justices, while the Senate confirms or rejects these nominations. This process requires cooperation between the Executive and Legislative branches, serving as a check on each other’s power.

Congressional Oversight: Congress has the authority to oversee the functioning of the federal courts, including the Judiciary. It can investigate the conduct of federal judges, impeach and remove judges for misconduct, and even alter the jurisdiction of federal courts, though these actions require substantial political consensus.

Constitutional Amendments: In extreme cases, the Legislative branch can propose constitutional amendments to override specific Supreme Court decisions. However, this process is highly challenging, requiring a two-thirds majority in both houses of Congress and ratification by three-fourths of state legislatures.

Executive Compliance: The Executive branch, headed by the President, is responsible for enforcing court decisions. Compliance with court orders and rulings is essential to maintaining the balance of power. Refusal to enforce court decisions can lead to constitutional crises.

These checks and balances ensure that no single branch of government becomes too dominant, preserving the system’s integrity and preventing potential abuses of power.

The Supreme Court of the United States has issued numerous landmark decisions that have had a profound impact on the nation’s history and legal landscape. Some notable cases include:

Marbury v. Madison (1803): This case established the principle of judicial review, giving the Supreme Court the authority to review and potentially invalidate actions of the other branches of government that are deemed unconstitutional. It solidified the Judiciary’s role as a check on the powers of the Executive and Legislative branches.

Dred Scott v. Sandford (1857): This controversial decision held that enslaved individuals, even when brought into free states, remained enslaved and had no legal rights as citizens. It fueled tensions over slavery in the lead-up to the Civil War.

Brown v. Board of Education (1954): A landmark case in the civil rights movement, this decision declared state laws establishing separate public schools for Black and white students unconstitutional. It led to the desegregation of public schools and was a significant step toward ending racial segregation.

Roe v. Wade (1973): This decision established a woman’s right to choose abortion as a constitutional right, striking down state laws that prohibited or restricted access to abortion. It remains a highly debated and influential case in discussions of reproductive rights.

Obergefell v. Hodges (2015): In a historic decision, the Supreme Court legalized same-sex marriage nationwide, affirming that the fundamental right to marry extends to same-sex couples. It marked a significant victory for LGBTQ+ rights.

These cases, among others, showcase the Judiciary’s role in shaping American society, addressing critical social and legal issues, and safeguarding individual rights.

The US Judiciary plays a crucial role in addressing conflicts between individual rights and public interests by carefully weighing the specific circumstances of each case and applying legal principles. Here’s how it navigates this complex terrain:

Strict Scrutiny: In cases where fundamental rights, such as freedom of speech or equal protection, are at stake, the Judiciary employs strict scrutiny. This standard requires the government to demonstrate a compelling interest and show that its actions are narrowly tailored to achieve that interest. This approach prioritizes individual rights and imposes a significant burden on the government to justify its actions.

Balancing Tests: Courts often use balancing tests to weigh the interests of individuals against those of the government or the broader society. For example, in cases involving freedom of speech, courts may balance the individual’s right to expression against potential harm or disruption caused by that expression.

Compelling State Interests: When the government asserts a compelling state interest, the Judiciary may permit restrictions on individual rights. For instance, restrictions on free speech in certain contexts, such as incitement to violence or obscenity, may be allowed if the government can demonstrate a compelling need to protect public safety or morals.

Case-by-Case Analysis: The Judiciary conducts case-by-case analysis, taking into account the specific facts and circumstances of each situation. This approach allows for a nuanced consideration of the balance between individual rights and public interests.

Legal Precedents: Courts often rely on legal precedents, including prior Supreme Court decisions, to guide their rulings in cases involving conflicts between individual rights and public interests. These precedents provide a framework for evaluating similar situations.

In essence, the Judiciary seeks to strike a balance between protecting individual rights and recognizing the legitimate interests of society. The outcome of each case depends on the specific legal arguments, the applicable legal standards, and the court’s interpretation of the law and Constitution.

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The first amendment, module 9: the judicial system and current cases.

Article III of the Constitution establishes the judicial branch of the national government, which is responsible for interpreting the laws. At the highest level, the judicial branch is led by the U.S. Supreme Court, which consists of nine Justices. In the federal system, the lower courts consist of the district courts and the courts of appeals. Federal courts—including the Supreme Court—exercise the power of judicial review. This power gives courts the authority to rule on the constitutionality of laws passed (and actions taken) by the elected branches. The Constitution also promotes the principle of judicial independence—granting federal judges life tenure (meaning that they serve until they die, resign, or are impeached and removed from office).

Download all materials for this module as a PDF

Learning Objectives

• Describe judicial review and explain it is a key component of the American constitutional system.
• Describe judicial independence and explain why the Founding generation viewed it as an important feature of the federal judiciary.
• Examine primary source writings on the Supreme Court in Federalist, No. 78.
• Describe how a case gets to the Supreme Court.
• Identify how the judicial nomination process works and how a justice ends up on the Supreme Court.

9.1 Activity: Supreme Court “Class Photo”

• Student Instructions
• Teacher Notes

Purpose Article III of the Constitution establishes the national government’s judicial branch: the federal judiciary, headed by a single Supreme Court. In this activity, you will examine the current justices of the Supreme Court and learn how a Supreme Court nominee gets appointed to the Supreme Court.

Process As a class, discuss what you know about the Supreme Court and what you want to know by the end of this module.

• What do you know about the Supreme Court justices?  
• What do you want to know about them?

Next, review and discuss the Info Brief: SCOTUS Class Photos presentation. Finally, read the Info Brief: Supreme Court document and complete the Activity Guide: Supreme Court worksheet.

Launch Display the image of the Supreme Court for students to view. As a large group, review a simple K- W- L activity to start student discussion based on the following questions:

Next, review the presentation with students and have them complete the worksheet. Ask students to compare and contrast the images of the court over time.

Finally, have students read the Info Brief: Supreme Court document and complete the Activity Guide: Supreme Court worksheet. Have students share highlights with the class.

Activity Synthesis Ask students to write three facts they learned about the Supreme Court and at least one question that they still have. 

Activity Extension (optional) Now that students have a better understanding of the nominating process, students may research the nomination and Senate hearings process for a recent Supreme Court justice. 

9.1 Visual Info Brief: SCOTUS Class Photos

9.1 info brief: supreme court, 9.1 activity guide: supreme court, 9.2 activity: key terms.

Purpose It is important to remember that Article III is a very short provision and doesn’t lay out many details about the Supreme Court and how it works—or even what the federal judiciary as a whole should look like. For example, it doesn’t set the number of Supreme Court justices, how many lower-court judges there should be in the federal judiciary, or when we should have any lower federal courts below the Supreme Court at all.

Furthermore, Article III can be a bit hard to understand without some background first. The basic ideas are simple enough, but the language is a bit more technical than other parts of the Constitution. In this activity, you will review the key terms of the module to help deepen your understanding of Article III.

Process Complete the Activity Guide: Key Terms - Judicial System and Current Cases  worksheet.

After your worksheet is complete, your teacher will guide you through a bingo game using the key terms and definitions of Module 9.

Launch Begin the activity with key terms activity with the students. Have them review the definitions and answer questions. As a review, have students share their answers in the worksheet for all of the key terms. Finally, engage students in a fun, lighthearted activity of word bingo by reading the definitions of the terms. Have students build bingo sheets by placing the key terms on a bingo card or hand out premade cards. If your class needs more words for the bingo card, use a sampling of facts from the Info Brief: Supreme Court document. Don’t forget the FREE spot! If the students have the correct word, they’ll color, cover, or electronically mark in the box on their cards where the answer appears. 

Activity Synthesis Have students apply their knowledge of the terms. Read and mark up a current news article that uses the terms. 

Activity Extension (optional) Now that students have a better understanding of key terms about the judiciary, ask the following questions:

• What is the primary role of the courts in our constitutional system?
• Why is it important for the judiciary to be independent of the other branches of government?
• How do the courts play a key role in our system of checks and balances?
• What part of the process did you learn about today that was new to you?
• What other questions do you have about the courts and their process for hearing cases?

9.2 Activity Guide: Key Terms - Judicial System and Current Cases

9.3 activity: the federalist no. 78 (hamilton).

Purpose The founders’ vision of judicial independence grew out of the colonists’ own experience under the British system. Judges were not independent within this system. Instead, colonial judges were seen as officers of the crown, who carried out the orders of the king and could be removed at his whim.

In this activity, you will learn more about the Founding generation’s original vision for the Supreme Court and the federal court system.

Process Read Federalist No. 78 by Alexander Hamilton and complete the Activity Guide: The Federalist No. 78 worksheet.

Launch The key arguments will fall under these big ideas:

• The judiciary is the weakest of the three branches of government.
• Judges have a duty to exercise judicial review to declare laws that are inconsistent with the Constitution unconstitutional.
• The power of judicial review is rooted in the principles of popular sovereignty—the idea that the powers of the government (and the authority of the Constitution) is derived from “We the People.” That authority is greater than the powers of elected officials.
• Judicial independence is a key component of the constitutional system—protecting judges from the influence of the other branches of government and leaving them free to exercise their independent judgment in a given case.

Each argument must be summarized and at least one quote has to be used to cite as evidence.

Activity Synthesis Have students discuss whether or not they agree with each argument Hamilton discusses in Federalist No. 78. Why, or why not?

Activity Extension (optional) Now that students have a better understanding of the Founding generation's original vision of the judiciary, ask the following questions:

• What recent cases have been in the news about the Supreme Court?
• Poll your family, friends, or community members to ask them their thoughts on the Supreme Court and its role in the government. 
• Use this information to develop a graphic or one-page fact sheet on the history and role of the court, cite evidence from your readings, and share with people in your community.  

9.3 Primary Source: Federalist No. 78

9.3 activity guide: federalist no. 78, 9.4 video activity: history of the supreme court.

Purpose In this activity, you will learn about the history of the Supreme Court.

Process Watch the following video about the history of the Supreme Court.

Then, complete the Video Reflection: History of the Supreme Court worksheet.

Identify any areas that are unclear to you or where you would like further explanation. Be prepared to discuss your answers in a group and to ask your teacher any remaining questions.

Launch Give students time to watch the video and answer the questions. 

Activity Synthesis Have students share their responses in small groups and then discuss as a class.

Activity Extension (optional) Now that students have a better understanding of the history of the Supreme Court, ask the following questions:

• What era of the Supreme Court history do you find most interesting and why?

9.4 Video Reflection: History of the Supreme Court

9.5 activity: how does a case get to the supreme court.

Purpose So, how does a constitutional case get to the Supreme Court? Someone—often a single person—goes to court and argues that a law, an arrest, or a regulation is in conflict with the Constitution. When this happens, they may eventually be able to petition the Supreme Court to hear their case. However, the Supreme Court has broad discretion to choose which cases it decides each year. The Supreme Court receives about 10,000 petitions per year, and only agrees to hear about 65 of them. That’s not a lot! In this activity, you will study a real case and analyze how it got to the Supreme Court.

Process Begin by reading the Common Interpretation: Article III, Section 1 and the Info Brief: How Does a Case Get to the Supreme Court document for background information about Article III and the federal court system. Summarize by writing a paragraph how the judicial branch works today. 

Next, work as a group to chart the path of a case to the Supreme Court. Your group will choose a historical case from the list of choices provided. Read about the case and work with your group to build a simple road map graphic to show the progression of this case to the Supreme Court. Be creative in your design. You can draw the path, sketch it out in a Word document, or use tools such as Piktochart .

Select a case from the historical case list.

Compare your roadmap to the one provided on how the typical case gets to the Supreme Court today .

Launch Have students read Common Interpretation: Article III, Section 1 and Info Brief: How Does a Case Get to the Supreme Court. Then, discuss with students how the judicial branch works and how the cases start with We the People and get to the Supreme Court. 

Activity Synthesis As a final activity, have students select a historical court case to build their path to the Supreme Court infographic. Students should identify the typical path, short-cuts, and areas where cases get blocked by exploring data on how many cases are heard at each level of the court system and analyzing what are the criteria for cases to get past certain checkpoints. 

Activity Extension (optional) Now that students have a better understanding of how a case gets to the Supreme Court, ask the following questions:

• What is one thing you learned about cases that reach the Supreme Court?
• What surprised you about these cases?
• Were there any similarities?
• If you were to write a letter to the people in these cases before they took up the fight, what would you tell them?

9.5 Primary Source: Marbury v. Madison (1803)

9.5 primary source: mcculloch v. maryland (1819), 9.5 primary source: dred scott v. sandford (1857), 9.5 primary source: plessy v. ferguson (1896), 9.5 primary source: west virginia board of education v. barnette (1943), 9.5 primary source: korematsu v. united states (1944), 9.5 primary source: brown v. board of education (1954), 9.5 primary source: tinker v. des moines independent community school district (1969), 9.5 info brief: how does a case get to the supreme court, 9.5 info brief: how does a case get to the supreme court graphic, 9.6 activity: supreme court in review.

Purpose The Supreme Court’s term typically lasts from the first Monday of October to the end of June.

Opinions are released throughout the term, with the last of the opinions (often on the most important and controversial cases) coming out at the end of June—although there’s no deadline because the justices set their own schedule.

In this activity, you will explore some of the most significant cases that the Supreme Court heard last term. 

Cases for 2021–2022 Term: 

• Dobbs v. Jackson Women’s Health Organization (2022)
• Kennedy v. Bremerton School District (2022)
• New York State Rifle & Pistol Association, Inc. v. Bruen (2022)

Process After you review these three cases of the last term, use the information from the NCC website and SCOTUSblog to complete the Activity Guide: Supreme Court in Review worksheet. 

Be prepared to share your briefs (explainers) you have developed in small groups.

Launch Give students time to review three of the high-profile cases of the last term and write short briefs (explainers) for each case. 

Activity Synthesis Have students share their briefs with one another in small groups. 

Activity Extension (optional) Now that students have a better understanding of current Supreme Court cases, ask students to write a short opinion for the Supreme Court for one case based on the facts presented and the constitutional issues in question. 

9.6 Activity Guide: Supreme Court in Review

9.7 test your knowledge.

Congratulations for completing the activities in this module! Now it’s time to apply what you have learned about the basic ideas and concepts covered.

Complete the questions to test your knowledge.

This activity will help students determine their overall understanding of module concepts. It is recommended that questions are completed electronically so immediate feedback is provided, but a downloadable copy of the questions (with answer key) is also available.

9.7 Interactive Knowledge Check: The Judicial System and Current Cases

9.7 printable knowledge check: the judicial system and current cases, 9.8 extended activity: building consensus.

Purpose The Supreme Court can offer a model for how to offer arguments in a constructive, cooperative way so that people with opposing views can meaningfully listen to one another, consider different viewpoints, learn from one another, and possibly change positions or reach a compromise. 

In this activity, you will explore the process for building consensus and the value of listening to arguments from other perspectives. 

Process Watch the Supreme Court Spotlight video from the National Constitution Center where U.S. Supreme Court Associate Justice Stephen Breyer (Ret.) provides an insider perspective on what happens behind closed doors at the Supreme Court.

As you watch the video, record the following information:

• Three interesting facts about the Supreme Court presented in the clip.
• Two rules for discussion in the Supreme Court.
• One word that is repeated by Justice Breyer.

Launch Before you begin, have students think about an argument they’ve had recently and write down a few notes about it. Who was involved? What was the issue? Were you able to come to a resolution? Why? Why not? Share with the class if time permits.

Activity Synthesis After viewing the video clip, students can share their 3-2-1 notes in their small group. Ask students to circle any ideas that are shared by more than one person. Have each group choose a representative to share out to the whole class. The teacher may choose to have different groups give their responses for only one aspect of the 3-2-1 notes. However, ask each group to share the one word that was repeated. This is powerful because the same word may be repeated many times signifying its importance. Encourage this because some students may be upset that another group already said their answer.

Activity Extension (optional) Looking for more tools on civil dialogue practice in your classroom? Check out the civil dialogue toolkit and corresponding lessons. 

Previous Module

Module 8: the presidency and executive power, next module, module 10: the first amendment.

The First Amendment protects some of our most cherished rights, including religious liberty, free speech, a free press, the right to assemble, and the right to petition our government for a redress of grievances. Together, these essential rights are connected to the freedom of conscience—protecting our ability to think as we will and speak as we think. As we examine the First Amendment’s text and history, we will explore debates over the First Amendment’s five freedoms, analyze landmark Supreme Court cases, and examine how the First Amendment has been used by ...

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Home — Essay Samples — History — Marbury v Madison — The Importance of Judicial Activism for the American Constitution

The Importance of Judicial Activism for The American Constitution

• Categories: Marbury v Madison

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Published: Sep 19, 2019

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