The Federal Judiciary

Welcome back to Constitutional Perspectives!

Over the last few installments, I've (briefly) canvassed the structure and powers of the legislative and executive branches of the federal government. Today, then, it is time to tackle the third branch: the federal courts, also known as the judiciary. I suspect the average (non-lawyer) reader may be somewhat less familiar with how the courts work. I, on the other hand, know a lot about how courts work.

What Is It Courts Do?

Precisely for this reason, I think it may be helpful to start with a brief discussion of what courts do, generally.

This is, in many ways, a deep question with no easy answer. But for my money, a good answer is that courts decide cases according to law. "Cases" means a dispute between two or more parties, typically one of whom claims that the other owes them something or has committed some kind of offense. The aggrieved party brings their claim to a court of law, which will review the evidence and listen to the parties' legal arguments and then decide which party is right.

In the ancestral version of this custom, the parties might instead have brought their dispute to the king, or to some local lord. Indeed, the very word court comes from the king's court (curia regs). Henry II, King of England from 1154 to 1189, is credited with more or less inventing the practice of delegating the Crown's power of judgment to professional judges.

One consequence of this innovation is that, whereas the King himself would exercise arbitrary judgment, favoring whichever party best appealed to his sense of justice (or his personal favor), a professional judge is supposed to decide according to the law. This entails an obligation for judges to provide reasons for their decisions, explaining why the law supports their conclusion. This has been a staple of the American court system since the beginning.

Structure and Organization

The Constitution itself says very little about the structure of the federal judiciary. Article III, Section One says that the judicial power "shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Super helpful, guys!

What this means in practice is that basically everything is up to Congress: the size of the Supreme Court, the organization of the lower courts, whether there even are any lower federal courts to begin with. This last point reflects the so-called "Madisonian Compromise" at the Convention. (Why this one in particular gets Madison's name attached to it, who knows.) Some of the delegates were antsy about the idea of lower federal courts, seeing them as an intrusion on state authority. So the Convention just punted, allowing Congress to create them, but not requiring it.

Of course, it turns out that lower federal courts are tremendously useful, and they have existed ever since the First Judiciary Act of 1789. Pretty much continuously ever since, we have had a three-tiered pyramid of federal courts: the "District Courts" at the bottom, the "Circuit Courts" in the middle, and the Supreme Court on top. The District Courts are trial courts. They're where most cases are brought and resolved initially. The Circuit Courts, for the most part, are courts of appeals, meaning that their job is to review the work of the District Judges for legal errors. The Supreme Court is also (almost exclusively) an appeals court, reviewing both the federal Circuit Courts and the state supreme courts.

This last point is important. Fundamentally, the reason why we needed a national judiciary, and a Supreme Court in particular, is that otherwise, each state's courts would develop their own interpretation of federal law. The same law would mean one thing in New York and something different in New Jersey. This would've been a problem for national unity, to say the least. Hence the Supreme Court, whose first and most essential function is maintaining the uniformity of federal law.

One final note: today, the Supreme Court has the power to choose which cases it hears. This was an innovation from the Judiciary Act of 1925 in light of the country's growing population and the increasing workload facing the Court. When you hear about a case being "appealed to the Supreme Court," therefore, what that really means is that the losing party has asked the Court to take up their appeal. Almost every such request is denied.

Federal Jurisdiction

While the Constitution says very little about the organization of the federal courts, it is quite specific as to the scope of their authority. The word for this authority is jurisdiction, which, etymologically, means something like "the power to speak the law" (juris "law" + diction, well, diction). If a court has jurisdiction over a particular case, that means it has the authority to hear that case and resolve it conclusively – such that it can't be brought again in some other court, say.

State trial courts often have "general" jurisdiction, covering just about every kind of case. In fact, this is what the phrase "supreme court" originally meant! It denoted a court of general jurisdiction from one with specialized jurisdiction, e.g. family court. A few states, notably New York, still call their trial courts "supreme courts" for this reason.

Federal courts are not like that. Article III, Section 2 enumerates nine categories of "cases" and "controversies" that the federal courts have jurisdiction over:

• All Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;
• All Cases affecting Ambassadors, other public Ministers and Consuls;
• All Cases of admiralty and maritime Jurisdiction;
• Controversies to which the United States shall be a Party;
• Controversies between two or more States;
• Controversies ... between a State and Citizens of another State;
• Controversies ... between Citizens of different States;
• Controversies ... between Citizens of the same State claiming Lands under Grants of different States; and
• Controversies ... between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

These are sometimes referred to as the "heads" of jurisdiction. Everyone who brings a case in federal court must show that the case falls within one of these nine categories. Outside these limits, the federal courts are powerless, and they are extremely meticulous about observing those limits.

The nine heads of jurisdiction may, for practical purposes, be simplified into two main categories. The first is "Cases ... arising under the Laws of the United States," also known as federal question cases. The federal courts, naturally enough, have jurisdiction over all cases that involve questions of federal law. (What's "involve" mean? Look, you don't want to know. There's an answer, it is incredibly convoluted, it makes law students weep.)

But they can also hear some cases that don't involve federal law at all. These are the so-called diversity jurisdiction cases. You'll notice that essentially all of the last six heads of jurisdiction, the ones that begin with "Controversies...", require some combination of parties who don't both come from the same state. The idea here is that, in these cases, no one state's courts can be relied upon to do impartial justice. If the case is heard in one party's home state, they may be favored; if the other, the other. Thus the federal courts are available as a neutral forum.

Of course this doesn't mean that these cases can't be brought in state court. Indeed, almost none of the jurisdiction of the federal courts is exclusive. (The exception is admiralty.) Typically the party bringing the case has the choice whether to go to state or federal court, although sometimes if a case is brought in state court the defendant will be able to "remove" it to federal court instead.

The plaintiff may also have some discretion about where to bring their case. So far in this section I've only mentioned what's called "subject-matter" jurisdiction, but there's another dimension as well, called "personal" jurisdiction. This is about whether the court has power over the person of the defendant. A court in one state generally cannot impose a judgment on someone who has never been to that state. And federal district courts follow the jurisdiction of the state in which they sit; this isn't a constitutional requirement, but just a statutory rule. In any event, if more than one state has personal jurisdiction over the defendant, then the plaintiff can choose which one to bring the case in.

The Common Law

Okay, so I've covered the structure of the federal courts and the scope of their authority. Now for a couple of points about how they go about deciding cases.

There is a grand divide in the judicial institutions of different countries between the so-called "common law" and "civil law" models. The latter descends ultimately from the ancient Roman law codes – think Justinian – and in more modern times from the Napoleonic Code. Napoleon conquered a whole swath of the world, and he created a legal code that remains largely in effect in lots of places. In those places – mostly Continental Europe and former colonies thereof – the business of judging is seen as an exercise in applying what the legal code has to say. Ostensibly, judges in civil law systems do not have to care what any other judge hearing a similar cases has decided before them. Every judge has direct recourse to the Code itself, as best they understand it.

The common law model – which, spoiler alert, is the one we follow here in America (except Louisiana) – works differently. It originated in England, and descends from the practice of customary law. In part this is a legacy of the Norman Conquest. When William, the Duke of Normandy conquered England in 1066, he made a promise to (mostly) leave English law intact. But English law had never really been codified (i.e. condensed into a written legal code). Judging, therefore, became a matter of applying local custom. And over time, as the decisions of the King's judges came to encompass more and more of English customary law, this became increasingly a matter of following judicial precedent: the way you followed custom was by deciding cases in the same way that other similar cases had been handled in the past.

This central role of precedent is the defining quality of the common law system. As a result, common law systems have a kind of evolutionary quality. Every decision pushes the law in a certain direction, and today's decisions build on yesterday's. New cases raise problems with the old rules, and judges are pressed to come up with new solutions. Over time, the result is a more-or-less coherent body of law, like a legal code that arises gradually over time rather than by the decree of a single lawgiver.

At the same time, the common law system is not just that body of judicially crafted legal rules. Both in old-timey England and in America today, the common law (in that sense) can be "superseded" by statute. In other words, if the legislature doesn't like the common law rule, it can change it. There are still some areas that are governed by the common law, mostly classic "private law" fields like contracts and torts and such. But an awful lot of law is in the statute books these days.

However, even when dealing with statutes, or for that matter the Constitution, our legal system is distinctively common-law in nature. Judges applying a statute will follow judicial precedent about how to interpret that statute. Indeed, many of the most notable federal statutes have effectively created a body of common law rules about what they mean – the Sherman Antitrust Act of 1890 being the classic example.

Judicial Review

Oh, and speaking of the Constitution.

You may perhaps have heard of a little thing called judicial review.

This refers to the power that the American courts have – state and federal alike – to declare laws and other government actions unconstitutional and therefore void. This is one of the most distinctive things about the American legal system – judicial review is basically unknown in the English system, for example – and certainly the most controversial.

I will have plenty to say in Level Two about whether courts ought to do this. (Spoiler: in my view, the answer is an emphatic "yes.") For now it is enough to say that they do wield this power, and to explain its mechanics a little bit.

Many other countries have, particularly in the wake of World War Two and the resulting creation of international human rights law, adopted the practice of judicial review in some form or fashion. But most – civil law countries in particular – have not copied the American model. These countries have usually created special "constitutional courts," separate and apart from their normal judiciary. Only the constitutional court can engage in judicial review. Where constitutional questions arise in other courts, they have to be referred to the specialists. In some countries (France, notably) statutes can be referred to the constitutional court immediately upon their passage by the legislature.

We don't do anything like that in America. Every court in the land has the power, in principle, to strike down an Act of Congress. Including state courts. According to the official (hotly contested) mythology, judicial review is nothing more than a natural outgrowth of the obligation to decide cases according to law, when combined with the rule that an act in contravention of the Constitution is not and cannot be law. Thus, if a party holds up a particular Act of Congress as the reason why they should win a case, but the judge thinks that Act to be unconstitutional, they should not rule in that party's favor (at least, not for that reason).

For this reason, the common parlance of judges "striking down" legislation is somewhat imprecise. Rather, judges "refuse to give effect to" invalid laws. And just because some judge somewhere has refused to give effect to a particular law does not take that law off the books. This is even true when it's the Supreme Court that held the law unconstitutional! Aside from the effect on the dispute immediately before the court, judicial review largely works through precedent: people know that, if they were to invoke that same legal provision in a future case, they would probably lose.

Again, I'll have tons more to say about the practice and theory of judicial review later on in this series. But this is plenty for now. Next up I'll be talking about all the ways that the three branches of the federal government interact with one another, a.k.a. Checks And Balances!