The power vested in particular courts
to review and/or revise the decision of
a lower court.
Judiciary Act of 1789
9.1 Note: The Judiciary Act of 1789 established the basic three-tiered structure of the federal
court system. At the bottom were the federal district courts—at least one in each state.
If people participating in a lawsuit (called litigants) were unhappy with the district
court's verdict, they could appeal their case to the circuit courts, constituting the second
tier. Each circuit court, initially created to function as a trial court for important cases,
originally comprised one district court judge and two Supreme Court justices who met
as a circuit court twice a year.The third tier of the federal judicial
system defined by the Judiciary Act of 1789 was the Supreme Court of the United
States. Although the Constitution mentions "the supreme Court," it did not designate
its size. In the Judiciary Act, Congress set the size of the Supreme Court at six—the
chief justice plus five associate justices. After being reduced to five members in 1801,
Congress expanded and contracted the Court's size until it was fixed at nine in 1869.
judicial review- Power of the courts to review acts of
other branches of government and the
9.1 Note:the Marshall Court claimed the right of judicial review, the power of the
courts to review acts of other branches of government and of the states. The Supreme
Court derives much of its day-to-day power and impact on the policy process from this
Marbury v. Madison (1803)
Case in which the Supreme Court first
asserted the power of judicial review
by finding that the congressional statute extending the Court's original
jurisdiction was unconstitutional.
9.1 Note: Nonetheless, because the U.S. Constitution does not mention judicial review, the actual
authority of the Supreme Court to review the constitutionality of acts of Congress was
an unsettled question. But, in Marbury v. Madison (1803), Chief Justice John Marshall
claimed this sweeping authority for the Court by asserting that the Constitution's
supremacy clause implies the right of judicial review.
Federal courts specifically created by
the U.S. Constitution or by Congress
pursuant to its authority in Article III.
Courts established by Congress for
specialized purposes, such as the
Court of Appeals for Veterans Claims.
A process by which presidents generally allow senators from the state in
which a judicial vacancy occurs to
block a nomination by simply registering their objection.
9:3 Note:Historically, presidents have screened their nominees through a process known
as senatorial courtesy. This is the process by which presidents generally allow senators
from the state in which a judicial vacancy occurs to block a nomination by simply registering their objection.
Writ of Certiorari
writ of certiorari- A request for the Supreme Court to
order up the records from a lower
court to review the case.
9:4 Note: writ of
certiorari (from the Latin "to be informed"), which is a request for the Supreme
Court—at its discretion—to order up the records of the lower courts for purposes of
review (see Figure 9.3).
The Supreme Court controls its own caseload through the certiorari process,
deciding which cases it wants to hear and rejecting most cases that come to it. All petitions, or writs of certiorari, must meet two criteria:
1. The case must come from a U.S. court of appeals, a court of military appeals,
district court, or a state court of last resort.
2. The case must involve a federal question. Thus, the case must present questions
of federal constitutional law or involve a federal statute, action, or treaty. The reasons that the Court should accept the case for review and legal argument supporting that position are set out in the petitioner's writ of certiorari.
The clerk of the Court transmits petitions for writs of certiorari first to the chief justice's office, where his clerks review the petitions, and then to the individual justices'
solicitor general- The fourth-ranking member of the
Department of Justice; responsible for
handling nearly all appeals on behalf
of the U.S. government to the
9.4 Note: One of the most important cues for predicting whether
the Court will hear a case is the solicitor general's position. The solicitor general,
appointed by the president, is the fourth-ranking member of the Department of
Justice and is responsible for handling nearly all appeals on behalf of the U.S. government to the Supreme Court. The solicitor's staff resembles a small, specialized
law firm within the Department of Justice. But, because this office has such a special relationship with the Supreme Court, even having a suite of offices within the
Supreme Court building, the solicitor general often is called the Court's "ninth and
a half member."
amicus curiae- "Friend of the court"; amici may file
briefs or even appear to argue their
interests orally before the court.
9.4 Note: Moreover, the office of the solicitor general, on behalf of the U.S.
government, appears as a party or as an amicus curiae, or friend of the court, in
more than 50 percent of the cases heard by the Court each term. This special relationship helps to explain the overwhelming success the solicitor general's office
enjoys before the Supreme Court. The Court generally accepts 70 to 80 percent of
cases in which the U.S. government is the petitioning party, compared with about 5
percent of all others.
judicial restraint - A philosophy of judicial decision
making that posits courts should allow
the decisions of other branches of
government to stand, even when they
offend a judge's own principles.
9.5 Note:One of the primary issues concerning judicial decision making focuses on judicial philosophy, particularly what is called the activism/restraint debate. Advocates of judicial
restraint argue that courts should allow the decisions of other branches to stand, even
when they offend a judge's own principles. Restraintists defend their position by asserting that unelected judges make up the federal courts, which renders the judicial branch
the least democratic branch of government. Consequently, the courts should defer
policy making to other branches of government as much as possible.
judicial activism - A philosophy of judicial decision
making that posits judges should use
their power broadly to further justice.
9.5 Note: Restraintists refer to Roe v. Wade (1973), the case that liberalized abortion laws, as a
classic example of judicial activism run amok. They maintain that the Court should
have deferred policy making on this sensitive issue to the states or to the elected branches
of the federal government.
strict constructionist- An approach to constitutional interpretation that emphasizes interpreting
the Constitution as it was originally
written and intended by the Framers.
9.5 Note: Advocates of judicial restraint generally agree that judges should be strict constructionists; that is, they should interpret the Constitution as the Framers wrote and
originally intended it. They argue that in determining the constitutionality of a statute
or policy, the Court should rely on the explicit meanings of the clauses in the document, which can be clarified by looking at founding documents.
judicial implementation- How and whether judicial decisions
are translated into actual public policies affecting more than the immediate parties to a lawsuit.
9.6 Note: If the president or members of Congress, for example, do not like a particular Supreme Court ruling, they can underfund programs needed to implement a decision or seek only lax enforcement. Judicial implementation refers to how and whether
judicial decisions are translated into actual public policies affecting more than the
immediate parties to the lawsuit.