Changes in the Judicial Branch

views updated

Changes in the Judicial Branch

In 1787, delegates from twelve American states wrote the Constitution of the United States. The Constitution divided the government into three branches. The legislative branch, Congress, makes the nation's laws. The executive branch, headed by the president, enforces the laws. The judicial branch, headed by the Supreme Court, holds trials and decides cases under the laws.

The Constitution gives the Supreme Court the power to hold trials in cases involving ambassadors, public ministers, consuls, and states. Public ministers are diplomatic officials other than ambassadors. Consuls are government officials who represent a country's commercial interests in another country.

In all other kinds of cases, the Supreme Court has the power to hear appeals from state courts and lower federal courts. An appeal is when a court reviews whether a judge or jury in a lower court made any serious mistakes. The Supreme Court has the power to decide appeals in cases arising under the Constitution and federal laws and treaties, cases involving vessels on navigable, or crossable, waters, cases in which the United States as an entity is a participant, and cases between citizens.

The Supreme Court is the only court the federal judiciary is required to have under the Constitution. The Constitution gives Congress the sole power to decide whether to create any courts below the Supreme Court. The history of the federal judiciary since 1787 involves growth of the federal judicial system and its powers.

Judiciary Act of 1789

The First Congress under the Constitution met in April 1789. Members of the Federalist Party had majority control of both chambers, the House of Representatives and the Senate. Federalists wanted to construct a strong national government under the Constitution. Their main rivals, called Anti-Federalists, wanted state governments to be stronger than the national government.

One of the most important bills the first Congress passed was "An Act to Establish the Federal Courts of the United States." The act became known as the Judiciary Act of 1789. President George Washington (1732–1799; served 1789–97) signed it into law on September 24, 1789.

The Judiciary Act created a federal judiciary with trial courts and appellate courts to serve under the Supreme Court. It was a victory for Federalists, who wanted an extensive federal judiciary. Anti-Federalists wanted state courts to handle trials, even in cases concerning federal laws.

District and circuit courts

The Judiciary Act of 1789 created two types of trial courts—district courts and circuit courts. There were thirteen district courts. Eleven covered each of the eleven states that had ratified, or formally approved, the Constitution by then. (North Carolina did not ratify until November 1789, and Rhode Island did not ratify until May 1790.) Two district courts covered Maine and Kentucky, which were part of Massachusetts and Virginia, respectively, at the time.

Each district court had one judge. The district courts had the power to hold trials in cases involving admiralty law and minor federal crimes. Admiralty cases involve the use of navigable waters, such as oceans, seas, great lakes, and rivers. District courts could also hold trials in minor civil cases filed by the United States. A civil case is a noncriminal dispute between private parties or between a private party and the government.

The Judiciary Act grouped the eleven states into three circuits—eastern, middle, and southern—and created one circuit court for each circuit. Two Supreme Court justices and one district court judge served each circuit. Circuit courts held trials in civil cases between citizens of different states, major civil cases filed by the United States, and cases involving major crimes. Circuit courts also heard appeals from certain trials in the district courts.

Supreme Court

The Constitution makes the Supreme Court the highest court in the federal judiciary. It also requires a chief justice to be head of the Court. The Constitution is silent, however, on how many justices must serve on the Court. The Judiciary Act of 1789 set the number at six, and assigned them in pairs to sit as trial judges in the three circuit courts.

The Constitution gives the Supreme Court the power to hold trials in cases involving ambassadors, public ministers, consuls, and states. The Judiciary Act of 1789 repeated this provision.

The Constitution says the Supreme Court may hear appeals in cases arising under the Constitution and federal laws and treaties, admiralty cases, cases in which the United States is a party, and cases between citizens. Congress, however, may make exceptions to this appellate power. In the Judiciary Act of 1789, Congress gave the Supreme Court the power to hear appeals mostly in civil cases involving more than $2,000. The Supreme Court did not get general power to hear appeals in criminal cases until the 1890s.

Section 25 of the Judiciary Act contained a controversial provision. It gave the Supreme Court the power to hear appeals from the highest court of each state in cases involving interpretation of the federal Constitution. Anti-Federalists disliked the notion that the Supreme Court could reverse a decision by a state court. This, however, has remained part of the Supreme Court's power of judicial review ever since.

Office of the attorney general

The Judiciary Act of 1789 created the position of attorney general, who is the lead attorney for the United States. The president appoints the attorney general with approval by a simple majority of the Senate. The Judiciary Act also authorized the president to appoint U.S. attorneys to assist the attorney general with the government's caseload. In 1870, the attorney general became head of the U.S. Department of Justice, one of the major departments in the executive branch.

Bill of Rights

A bill of rights is a law protecting the basic rights of citizens. When the state delegates began debating in 1787 whether to ratify the Constitution, Anti-Federalists wanted the Constitution to have a bill of rights. Federalists agreed to seek a bill of rights if the Anti-Federalists would vote to ratify the Constitution. Such promises led to ratification by eleven of the thirteen American states by July 1788.

During the first Congress in 1789, U.S. representative (and future president) James Madison (1751–1836) of Virginia drafted twelve proposed amendments. On September 24, 1789, the House of Representatives voted to submit them to the states for consideration, and the Senate voted similarly the next day. Eleven states ratified ten of the amendments by the end of 1791, making them part of the Constitution. Those ten came to be called the Bill of Rights. Many of the amendments affect the work of the federal judiciary.

The Fourth Amendment

The executive branch is responsible for enforcing the nation's laws. Enforcement often involves searching a home or other place for evidence of a crime, seizing evidence, and arresting suspected criminals. The Fourth Amendment usually requires federal law enforcement agents to get a warrant from a court before conducting a search, seizure, or arrest.

The Fourth Amendment says, "No Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Probable cause means that federal courts cannot issue warrants unless there is good reason to believe a crime has been committed and that the search or seizure might produce evidence of it. Courts must base this determination on sworn testimony or affidavits (signed statements) of witnesses or law enforcement agents. A warrant must specifically describe the place to be searched or the person or thing to be seized. Law enforcement agents are supposed to obey these limitations.

The Law of the Land or the Law of the Living?

The U.S. Constitution has been the framework for American government since its adoption in 1788. In 1789, future president Thomas Jefferson wrote a letter to future president James Madison, sharing his opinion on the duration of the Constitution:

[No] society can make a perpetual [ongoing] constitution, or even a perpetual law. The earth belongs always to the living generation. They may manage it then, and what proceeds from it, as they please, during their usufruct [right to use something without destroying it]. They are masters too of their own persons, and consequently may govern them as they please. But persons and property make the sum of the objects of government. The constitution and the laws of their predecessors extinguished then in their natural course with those who gave them being. This could preserve that being till it ceased to be itself, and no longer. Every constitution then, and every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, and not of right.

As of 2005, the Constitution has been in effect for 217 years. It has been amended twenty-seven times during that time. Some believe the Constitution is a living document, the words of which are flexible enough to allow their meaning to change over time to serve the needs of a changing country. Others think the Constitution can serve America well enough as it was written in 1787, without flexible, changing interpretations. Still others think the Constitution is outdated and ought to be rewritten entirely.

The famous case of Mapp v. Ohio illustrates how the Fourth Amendment works. In May 1957, police in Cleveland, Ohio, had information that a bombing suspect was hiding in the home of Dollree Mapp. They also thought the house had illegal gambling equipment. When the police went to Mapp's house, she would not let them in, so they forced their way in without a search warrant. They did not find the bombing suspect or any gambling equipment, but they found obscene material that was illegal to have under Ohio law. A state court convicted Mapp for having the obscene material and put her in prison.

Mapp appealed her conviction to the Ohio Supreme Court. That court affirmed her conviction, so she appealed again to the U.S. Supreme Court. With a 6-3 decision in 1961, the Supreme Court reversed Mapp's conviction. Writing for the majority, Justice Tom Campbell Clark (1899–1977) said the police violated Mapp's Fourth Amendment rights by searching her home without first getting a search warrant. Under a Supreme Court doctrine called the exclusionary rule, evidence found during an illegal search may not be used to convict a suspect. Because police found the obscene material during an illegal search, they were not allowed to use it to convict Mapp of violating Ohio's obscenity law.

The Fifth Amendment

The Fifth Amendment prevents a person from being tried for a capital or infamous crime unless a grand jury finds good reason for the charge. A grand jury is a random group of citizens from the community, often more than the twelve who typically sit on a regular jury for a full criminal trial. Federal courts supervise federal grand jury proceedings.

The Fifth Amendment says a person may not be tried twice for the same crime or be forced to be a witness against him- or herself. The amendment prevents the federal government from taking away a person's life, liberty, or property without due process of law, which means fair legal proceedings. Finally, it prevents the government from taking a person's private property without giving him or her fair compensation. Federal judges are required to enforce these rights in the cases they hear.

The Sixth Amendment

The Constitution says all federal criminal trials must be by jury in the state where the crime was committed. The Sixth Amendment expanded the rights of defendants in criminal trials. It requires criminal trials to be public and speedy. Criminal defendants have the right to know the charges against them, to question the witnesses against them, to force favorable witnesses to testify for them, and to be assisted by an attorney. Federal judges are supposed to enforce these rights for criminal defendants in federal criminal trials.

The Seventh Amendment

The Constitution of 1787 did not contain specific provisions for civil trials. The Seventh Amendment changed this. It preserves the common law right to jury trials in cases involving more than $20. Common law is law made by English and American judges on a case-by-case basis to decide cases between private individuals, such cases involving breach of contract, defamation of character, and negligence. (Defamation is when one person wrongfully harms another's reputation. Negligence is when one person harms another person or property through careless action). The Seventh Amendment also prevents federal courts from changing a jury's factual findings in civil cases except as allowed under common law.

The Eighth Amendment

The Eighth Amendment says, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Bail is a legal payment criminal defendants must make to be free prior to their trials. Defendants get the money back when they appear for trial. Fines are punishments for violating civil and criminal laws. Punishments are not cruel and unusual, according to the Supreme Court, when society generally approves them.

Eleventh Amendment

The Constitution gave the federal judiciary the power to hear cases "between a state and citizens of another state." Such cases could be filed directly in the Supreme Court.

When Americans debated whether to ratify the Constitution, Anti-Federalists were concerned about this provision. They thought requiring states to appear in federal courts would threaten the sovereignty, or independent power, of the states. According to Alfred H. Kelly and Winfred A. Harbison in The American Constitution, prominent Federalists assured the Anti-Federalists that this provision would not apply to cases filed against states unless the states agreed to be sued in federal court.

The Federalists, however, were wrong. Soon after construction of the federal judiciary in 1789, citizens began suing states in the Supreme Court. In one case, two citizens of South Carolina sued the state of Georgia to recover property that Georgia officials had confiscated, or taken. Georgia officials refused to appear in the Supreme Court. They sent a letter saying the Supreme Court had no power to hear a case filed against a state by a citizen of another state.

In 1793, the Supreme Court issued its decision in Chisholm v. Georgia. The Supreme Court rejected Georgia's argument that the Court lacked the power to hear the case, finding in favor of the citizens of South Carolina. The Court said the American states had consented to being sued in federal courts by state citizens when they ratified the U.S. Constitution.

After the Court's decision, Anti-Federalists led a movement to change the Constitution with the Eleventh Amendment. Congress proposed the amendment in 1794. It says, "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." The Eleventh Amendment became part of the Constitution in January 1798.

Judicial review and Marbury v. Madison

Judicial review is the power to determine whether congressional laws and executive actions are valid under the Constitution. The Constitution does not specifically give the federal judiciary this power. It says that the Constitution, and laws and treaties made under it, are the supreme law of the land, and that state judges must obey them.

The Judiciary Act of 1789 enforced this requirement by giving the Supreme Court the power to hear appeals from state courts in particular cases. This power generally covered cases in which a state's highest court declared a federal law or treaty unconstitutional, ruled that a state law did not violate the Constitution, or ruled against a constitutional right.

The Judiciary Act did not specifically give the Supreme Court the power to determine whether laws passed by Congress were valid under the Constitution. The Supreme Court, however, announced this power in the 1803 case of Marbury v. Madison. Attorney William Marbury had sued Secretary of State James Madison in the Supreme Court. Marbury wanted the Court to force Madison to give him a commission for a justice-of-the-peace job to which President John Adams (1735–1826; served 1797–1801) had appointed Marbury just before leaving office in 1801. The Judiciary Act of 1789 said the Supreme Court could hold trials for orders, called writs of mandamus, to force government officials to do their jobs.

Chief Justice John Marshall (1755–1835) wrote the Court's decision in the case. Marshall said Marbury deserved the commission, but that the Court could not force Madison to deliver it. The reason was that the Constitution did not give the Supreme Court the power to hold trials for writs of mandamus. So the Judiciary Act of 1789 violated the Constitution by trying to give the Supreme Court this power. Marshall said federal courts must strike down congressional laws that violate the constitution.

Size of the Supreme Court

The Judiciary Act of 1789 set the number of Supreme Court justices at six. Between then and 1869, Congress raised the number five times and lowered it twice. The increases generally happened as the country grew and Congress created new circuit courts and district courts. Beginning in 1802, Congress assigned one Supreme Court justice to travel to each circuit to hear trials.

Increases also happened when Congress wanted to give a president power to appoint more justices to the Court. The Court reached its largest size to date in 1863, when Congress raised the number of justices to ten. This allowed President Abraham Lincoln (1809–1865; served 1861–65) to appoint a new justice, Stephen J. Field (1816–1899), at a time when Lincoln was stretching his constitutional powers to conduct the American Civil War (1861–65). Lincoln wanted the Court to have justices who would approve his war powers.

The first time Congress lowered the number of Supreme Court seats was in early 1801, when the Federalist-controlled Congress reduced the number from six to five. Congress did this to prevent the incoming Democratic-Republican president, Thomas Jefferson (1743–1826; served 1801–9), from getting to appoint someone if Justice William Cushing (1732–1810), who was ill, died. In 1802, after the Democratic-Republicans gained control in Congress, Congress raised the number of justices back to six. (Cushing lived until 1810, past Jefferson's two terms in office.)

In 1866, Congress reduced the number of Supreme Court seats from ten to seven. At the time, Congress had passed Reconstruction Acts for rebuilding the country after the American Civil War. President Andrew Johnson (1808–1875; served 1865–69) opposed many of Congress's policies, so Congress feared he might appoint justices who would strike down the acts as unconstitutional. Reducing the number of seats from ten to seven prevented Johnson from filling vacancies when two of the Court's justices, John Catron (1786–1865) and James M. Wayne (1790–1867), died.

Three years later, in 1869, Congress raised the number of Supreme Court seats from seven to nine, shortly after the inauguration of Ulysses S. Grant (1822–1885; served 1869–77). The number has been fixed there ever since.

The Thirteenth, Fourteenth, and Fifteenth Amendments

Near the end of the American Civil War in February 1865, Congress proposed a constitutional amendment to make slavery illegal in the United States. Twenty-seven states ratified it by the end of the year, making it the Thirteenth Amendment to the Constitution.

Ending slavery did not bring political equality to newly freed slaves. Many Southern states enacted so-called Black Codes, treating African Americans differently than white Americans under the law. The Black Codes had harsh vagrancy laws for African Americans. The codes set up apprenticeship, or training, programs that gave African Americans little more freedom at work than they had as slaves. Criminal punishment for African Americans was more severe than for white Americans. The laws established racial segregation, or separation, in schools and public facilities. Some laws prevented African Americans from testifying in courts of law.

To abolish the Black Codes and win political support from African Americans, Congress proposed the Fourteenth Amendment in June 1866. Section 1 declares that all people born or naturalized (legally declared a citizen) in the United States are citizens of the country and of the state in which they live. The Privileges and Immunities Clause says states may not pass laws that abridge, or lessen, the privileges and immunities, or rights, of American citizens. The Due Process Clause says states may not deprive people of life, liberty, or property without due process of law, which means fair legal proceedings. Finally, the Equal Protection Clause says states may not deny any person the equal protection of the laws.

The Fourteenth Amendment became part of the Constitution in June 1868. Southern states, however, continued to treat African Americans unfairly. One tactic was to prevent African Americans from voting in elections. In February 1869, Congress proposed the Fifteenth Amendment. It says, "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." The states ratified the Fifteenth Amendment by March 1870.

The Thirteenth, Fourteenth, and Fifteenth Amendments gave Congress the power to enforce them with appropriate legislation. If a state passes a law that violates one of the so-called Civil War Amendments, however, the federal judiciary is where citizens often turn for help. Under its power of judicial review, the Supreme Court can strike down state laws that violate the Constitution and its amendments.

Judiciary Acts of 1869 and 1875

America had thirty-six states soon after the Civil War. Most of the states had one to three federal district courts, which continued to handle minor trials under federal law. As the country grew, backlogs in the district courts grew, too.

Congress divided the states into nine judicial circuits, each of which had a circuit court. Circuit courts continued to handle major trials plus some appeals from the district courts. Supreme Court justices still traveled to circuit courts for trials. There were not enough justices, however, to cover the circuits adequately, so in 1869 Congress added a circuit court judge to each circuit. As in the district courts, the circuit court dockets became backlogged with cases.

Congress began to reorganize the judiciary with the Judiciary Act of 1875. It shifted some kinds of trials from the circuit courts to the district courts and gave the circuit courts more responsibility for hearing appeals. It also expanded federal judicial power to almost the full extent allowed by the Constitution. Federal courts could now hear any cases concerning federal laws and involving more than $500.

Circuit Courts of Appeals Act of 1891

Congress passed the Circuit Courts of Appeals Act of 1891 to finish the reorganization it began in 1875. The act of 1891 had three main provisions. First, it transferred most federal trials to the district courts. The circuit courts continued holding some trials out of tradition, but lost all power to hear appeals. Congress eventually eliminated the circuit courts in 1911.

Second, the act created nine new circuit courts of appeals, one for each of the country's nine circuits. Each circuit court of appeals contained two circuit judges and one district judge. They had the power to hear almost all appeals from the district and circuit courts. In most cases, the decision by a circuit court of appeals was final.

The third main change affected the responsibilities of the Supreme Court. Under the act, the Supreme Court was required to hear only certain kinds of appeals from the district and circuit courts and from the circuit courts of appeals. Otherwise, the Supreme Court had discretion to choose whether or not to hear appeals. The effect was to reduce the Supreme Court's caseload and transfer most appellate responsibility to the circuit courts of appeals. The act also made circuit riding by Supreme Court justices optional, bringing an end to that tradition. (During the early years of the Supreme Court, justices had to travel across the country to hold trials in different federal circuits. This was known as circuit riding.)

The twentieth century

After Congress abolished circuit courts in 1911, the federal judiciary had district courts for trials, circuit courts of appeals for appeals, and the Supreme Court for final appeals. This structure

The Inalienable Rights of Mankind

In 1776, thirteen American colonies separated from Great Britain by signing the American Declaration of Independence. Written primarily by Thomas Jefferson, the Declaration contains these famous words about the rights of mankind:

We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness. . . .

Although the Declaration spoke in terms of "men," the document has been celebrated as one of history's greatest statements of the inalienable rights of all people. Inalienable rights cannot be denied by government. They are rights that a fair government must preserve for its citizens.

The preamble to the Constitution of 1787 says one of its purposes is to "secure the blessings of liberty" to the people of America. The Constitution does not otherwise mention the inalienable rights of mankind. Some convention delegates were more concerned with defining the powers of American government than identifying the rights of its citizens. Others believed it was unnecessary to mention inalienable rights, since they cannot be denied. Jefferson, the author of the Declaration of Independence, was in Paris, France, at the time as American ambassador to France.

In 1788, America wrestled with whether to ratify the Constitution to make it the framework for American government. Delegates met in state conventions to hold debates on the proposed Constitution and to vote on ratification. Many delegates would not vote for ratification unless the Constitution's supporters agreed to seek amendments to add the basic rights of citizens to the document.

After ratification, congressman and future president James Madison drafted twelve proposed constitutional amendments. America adopted ten of them—the Bill of Rights—in 1791. Part of the Fifth Amendment says no person may "be deprived of life, liberty, or property, without due process of law. . . ." This language resembled Jefferson's celebration of life, liberty, and the pursuit of happiness, though it replaced happiness with property.

The Bill of Rights does not refer specifically to the inalienable rights of mankind. The Ninth Amendment, however, says, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This reflected the idea that people have inalienable rights that fair governments cannot take away. Nevertheless, the Ninth Amendment has been powerless as a restriction on the federal government.

Upon ratification in 1791, the Bill of Rights applied only to the federal government. State governments did not have to obey it. Moreover, despite its language of liberty, the Constitution made slavery legal in America. It did so in three ways. First, it specifically prevented Congress from outlawing the importation of slaves until 1808. Second, it required states to return escaped slaves to their masters. Third, it counted each slave as only three-fifths of a person for determining state populations for calculating the number of representatives each state got in the House of Representatives.

Over the next seventy-five years, people in the abolitionist (antislavery) movement worked to end slavery. They used the Declaration's inalienable rights to attack slavery as impossible in a free land. Slavery finally became illegal with the adoption of the Thirteenth Amendment in 1865.

After winning that battle, abolitionists turned to protecting the civil rights of newly freed slaves. In 1866, Congress proposed the Fourteenth Amendment, which, in Section 1, says:

No States hall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

After Congress proposed the Fourteenth Amendment, Speaker of the House Schuyler Colfax (1823–1885) spoke in favor of Section 1, saying (as reprinted in the Congressional Globe), "I will tell you why I love it. It is because it is the Declaration of Independence placed immutably [absolutely] and forever in the Constitution."

Many Americans see a parallel between section 1 of the Fourteenth Amendment and the Declaration of Independence. The Fourteenth Amendment's "equal protection" clause resembles the Declaration's observation that "all Men are created equal." The Fourteenth Amendment's "privileges and immunities" resemble the Declaration's "unalienable rights." The Fourteenth Amendment's protection of "life, liberty, or property" resembles the Declaration's celebration of "Life, Liberty, and the Pursuit of Happiness." In "Completing the Constitution," scholar Robert J. Reinstein made the following observation about the adoption of the Fourteenth Amendment:

[A] national political movement brought the Declaration of Independence "back into American life." The Declaration was the secular credo, or nonreligious doctrine, of the abolitionists. The Declaration not only supported their moral and political assaults on slavery but was the foundation of their constitutional theories.

America ratified the Fourteenth Amendment in 1868.

has remained since then. Changes to the federal judiciary in the twentieth century concerned management of the judicial workload as the country grew in size and population.

Federal district courts and special courts

As of 2005, the federal judiciary has ninety-four districts. Each district has at least one district court. Some districts are divided into divisions, each of which has a district court.

District courts handle criminal and civil trials under the nation's laws. District courts can also handle civil trials involving state law if the parties are citizens of different states and the amount of their dispute is more than $75,000. State civil cases below that amount must be filed in state courts.

The district courts have a system of courts for handling cases in which a person or business files for bankruptcy. (Bankruptcy allows a person who cannot pay his or her debts to pay what he or she can and then start over without any debts.) During the twentieth century, Congress also created federal courts for hearing special kinds of cases, such as the tax court and the court of international trade.

Courts of appeals

In 1948, Congress changed the name of the circuit courts of appeals to courts of appeals for a given circuit. For example, the First Circuit Court of Appeals became the Court of Appeals for the First Circuit. As of 2005, the country has twelve courts of appeals covering twelve numbered, geographic circuits. There is also a court of appeals for the federal circuit, which hears appeals from around the country in cases involving special areas of the law.

The Supreme Court

During the twentieth century, Congress decreased mandatory appeals and increased discretionary, or optional, appeals to the Supreme Court. Since 1988, almost all of the Supreme Court's caseload has been discretionary. If a party wants to appeal to the Supreme Court from a court of appeals, he or she must file a petition for a writ of certiorari, a petition that asks the Supreme Court to review the case. (A writ is a court order, and certiorari is a Latin word that means "to certify a court case for review.") At least four of the nine justices must vote to grant certiorari for the case to be appealed. Out of the thousands of petitions the Court receives each year, it selects only around one hundred of them.

The future

Under the Constitution, the president appoints justices to the Supreme Court and judges to the lower federal courts. The Senate reviews the appointments and either approves or rejects them. A simple majority is necessary for Senate approval.

Once appointed, federal justices and judges may serve as long as they want. The president has no power to remove a justice or judge from the bench. Congress can remove justices and judges only through impeachment in the House of Representatives and conviction in the Senate for treason, bribery, or other high crimes and misdemeanors.

Some citizens would like to change these procedures with elections and term limits. Elections would allow the people of America to select federal justices and judges. Term limits would limit the number of years a justice or judge could serve. Proponents say elections and term limits would encourage federal justices and judges to follow the will of the people. Opponents say justices and judges must be independent from popular will because part of their job is to protect the rights of minority groups in society.

For More Information


Biskupic, Joan, and Elder Witt. The Supreme Court & the Powers of the American Government. Washington, DC: Congressional Quarterly Inc., 1997.

Goebel, Julius, Jr. Antecedents and Beginnings to 1801. Vol. I. New York: Macmillan, 1971.

Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.

Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.

Levy, Leonard W. Original Intent and the Framers' Constitution. New York: Macmillan, 1988.

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.

Shelley, Mack C., II. American Government and Politics Today. 2004–2005 ed. Belmont, CA: Wadsworth Publishing, 2003.

Surrency, Erwin C. History of the Federal Courts. 2nd ed. Dobbs Ferry, NY: Oceana Publications, 2002.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Wheeler, Russell R., and Cynthia Harrison. Creating the Federal Judicial System. Washington, DC: Federal Judicial Center, 1994.

Young, Roland. American Law and Politics: The Creation of Public Order. New York: Harper & Row, 1967.


Congressional Globe, 39th Cong., 1st Sess. 2459 (1866).

Reinstein, Robert. J. "Completing the Constitution: The Declaration of Independence, Bill of Rights and Fourteenth Amendment." Temple Law Review (1993).


Mapp v. Ohio, 367 U.S. 643 (1961).


Supreme Court of the United States. (accessed on February 18, 2005).

U.S. Courts: The Federal Judiciary. (accessed on March 23, 2005).