13 The Federal Courts

President Barack Obama may have the opportunity to change the philosophical balance on the U.S. Supreme Court.

The Courts and Public Policy

Agenda Building

• The courts play a role in agenda building by tackling issues that might not otherwise be addressed by other levels and branches of government. For example, the U.S. Supreme Court made abortion a national issue in Roe v. Wade. Before Roe, state governments made abortion policy. Some states, such as New York, permitted abortion; other states, such as Texas, prohibited abortion except to preserve the life of the woman.

Policy Formulation and Adoption

• Court decisions affect policy formulation in the other branches and units of government. Members of Congress and state legislators formulating abortion policy, for example, must work within the guidelines established in Roe and subsequent abortion decisions or face the likelihood of having any legislation they pass being overturned in federal courts.
• Courts adopt policy when they make rulings and issue opinions. When the Supreme Court issued its decision in Brown v. Board of Education of Topeka, for example, it adopted a policy on racial segregation of public schools. Most judicial policymaking involves civil liberties and civil rights policies.

Policy Implementation and Evaluation

• The federal courts play a role in policy implementation. Lower courts implement Supreme Court rulings by applying them to new cases as they arise. The courts also affect policy implementation when they interpret the law. For example, when Congress wrote the Americans with Disabilities Act (ADA), it did not define “reasonable accommodation” and “undue hardship.” As a result, the federal courts have been heavily involved with the implementation of the ADA by interpreting its meaning in the context of specific controversies.
• Finally, federal courts evaluate policies in light of the Constitution. In theory, at least, judges do not evaluate policies on their effectiveness or wisdom, but only on their constitutionality.

Key Terms

Affirm

the action of an appeals court to uphold the decision of a lower court

Amicus Curiae (Friend of The Court) Brief

written legal arguments presented by parties not directly involved in the case, including interest groups and units of government

Appeal

the taking of a case from a lower court to a higher court by the losing party in a lower-court decision

Certiorari (Cert)

the technical term for the Supreme Court’s decision to hear arguments and make a ruling in a case

Civil Case

a legal dispute concerning a private conflict between two parties individuals, corporations, or government agencies

Concurring Opinion

a judicial statement that agrees with the Court’s ruling but disagrees with the reasoning of the majority opinion

Conference

a closed meeting attended only by the members of the Court

Constitutional Law

law that involves the interpretation and application of the Constitution

Criminal Case

a legal dispute dealing with an alleged violation of a penal law

Dissenting Opinion

a judicial statement that disagrees with the decision of the Court’s majority

In Forma Pauperis

the process whereby an indigent litigant can file an appeal of a case to the Supreme Court without paying the usual fees

Item Veto

the power of an executive to veto sections or items of a tax or appropriation measure while signing the remainder of the bill into law

Judicial Activism

the charge that judges are going beyond their authority by making the law and not just interpreting it

Judicial Restraint

the concept that judges should defer to the policymaking judgment of the legislative and executive branches of government unless their actions clearly violate the law or the Constitution

Judicial Review

the power of courts to declare unconstitutional the actions of the other branches and units of government

Jurisdiction

the authority of a court to hear a case

Legal Brief

a written legal argument

Loose Construction

a doctrine of constitutional interpretation holding that the document should be interpreted broadly

Majority Opinion

the official written statement of the Supreme Court that explains and justifies its ruling and serves as a guideline for lower courts when similar legal issues arise in the future

Original Jurisdiction

the set of cases a court may hear as a trial court

Per Curiam Opinion

an unsigned written opinion of a court

Remand

the decision of an appeals court to return a case to a lower court for reconsideration in light of an appeals court decision

Rule of Four

a decision process used by the Supreme Court to determine which cases to consider on appeal, holding that the Court will hear a case if four of the nine justices agree to the review

Senatorial Courtesy

the custom that senators from the president’s party have a veto on judicial appointments from their states

Statutory Law

law that is written by the legislature

Strict Construction

a doctrine of constitutional interpretation holding that the document should be interpreted narrowly

Test Cases

lawsuits initiated to assess the constitutionality of a legislative or executive act

Trial

the formal examination of a judicial dispute in accordance with law before a single judge

Writ of Habeas Corpus

a court order requiring that government authorities either release a person held in custody or demonstrate that the person is detained in accordance with law

Discussion Questions

1. In what way does the election of a president affect the judicial branch of government?

2. What is the difference between strict and loose construction?

3. Do courts make policy? Explain.

4. On what basis does the president select justices for the Supreme Court? What factors influence the likelihood that the Senate will confirm a Supreme Court nominee?

5. What factors influence the strength of a Supreme Court decision?

Interactive Activity

Simulation: You Are a Supreme Court Justice Deciding a Free Speech Case

The U.S. Supreme Court decides cases largely by considering earlier cases, or precedents, that relate to similar circumstances. In this simulation, you will play the role of a justice on the Supreme Court who must decide how to rule on a case involving freedom of speech. You will review the precedents and then write your own decision. What have the courts said regarding governmental restrictions on free speech? Under what circumstances, if any, are governmental restrictions on speech permitted?

View Simulation

“Talking About American Government” Podcasts

Author Neal Tannahill discusses the most important concepts in this chapter

• Congress, the President, and Senatorial Courtesy
• The Sotomayor Nomination
• Supreme Court Procedures
• Judicial Selection
• Interest Group and the Judicial Process