Article III: Section 1

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

• Judiciary Act of 1789
  • Provided the framework for the federal judicial system
  • Established districts courts
  • Established circuit courts

Judicial Review

• Judicial Review: The power of the courts, as part of the system of checks and balances, to look at actions taken by the other branches of government and the states and determine whether they are constitutional

• Not in the Constitution

• Marbury v. Madison (1803)

  • Established the courts’ power of judicial review and the first time the Supreme Court ruled an act of Congress to be unconstitutional
  • it is emphatically the province and duty of the judicial department to say what the law is

National Supremacy and Slavery

• The nation-state relationship was defined early on: federal law is supreme to state law

• McCulloch v. Maryland (1819): read the Necessary and Proper Clause broadly to uphold the national bank

• Dred Scott v. Sandford (1857): Chief Justice Roger Taney denied citizenship to enslaved people and their descendants

Government, the Economy, and Political Liberty

• For roughly 40 years the Court invoked the 14th Amendment to block many economic regulations

• At the same time, it read the 14th and 15th Amendments narrowly — undermining prospects for racial equality

• FDR threatened to “pack the Court” after it repeatedly struck down New Deal legislation

Judicial Precedent

Adherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts

• Stare decisis: Latin for stand by things decided
• Common Law: the pattern of law developed by judges through case decisions largely based on precedent
• The consistency of precedent ensures greater certainty and stability in law and constitutional interpretations

The Dual Court System

• The dual court system represents courts at both the national and state levels

• Both levels have three basic tiers consisting of trial courts, appellate courts, and courts of last resort

The Dual Court System

The Dual Court System

The Federal Courts

District Courts

• There are ninety-four U.S. district courts
• These are trial courts of the national system, in which federal cases are tried. No district court crosses state lines and a single judge oversees each one
• Some cases are heard by a jury and some are not

The Federal Courts

Court of Appeals

• There are thirteen courts of appeals or circuit courts

• Each court is overseen by a rotating panel of three judges who do not hold trials but instead review the rulings of the trial courts within their area

The Federal Courts

Court of Appeals

The Federal Courts

Jurisdiction

Jurisdiction of the Federal Courts

• Federal question cases: cases concerning the Constitution, federal laws, or treaties

• Diversity cases: cases involving citizens of different states

• A defendant may sometimes be tried in both state and federal court for the same offense

• State cases can be appealed to the Supreme Court in some instances

Constitutional Courts vs. Legislative Courts

Selection of Federal Judges

• At the federal level, the president nominates a candidate to a judgeship
• The president’s nominee is then discussed in the Senate Judiciary Committee
• After a committee vote, the candidate must be confirmed by a majority vote of the full Senate
• Finally, he or she is sworn in, taking the oath of office
• All judges and justices in the national courts serve lifetime terms of office

Selecting Judges

• Party background can impact judicial decisions — but case facts, precedent, and legal argument still matter

• Presidents find it hard to predict how appointees will behave once confirmed

• Senatorial courtesy and “blue slips”: home-state senators can effectively veto a nominee

• The “litmus test”: screening nominees for a firm position on a single high-salience issue before nomination

Structure of the Supreme Court

• The Supreme Court has nine justices

  • There is one chief justice, the highest-ranking judge on the Court
  • There are eight associate judges
  • All nine serve lifetime terms

• As the national court of last resort for all other courts in the system, the Supreme Court plays a vital role in setting standards of interpretation that the lower courts follow

• The Supreme Court’s decisions are binding across the nation and establish the precedent by which future cases are resolved in all the system’s tiers

History of the Supreme Court

• The Constitution does not set the size of the Court; Congress decides how many justices there are
• The Judiciary Act of 1789 created a Court of six justices
• The size changed seven times between 1801 and 1869, often for political reasons:
  • 1801: a lame-duck Federalist Congress cut the Court to five to deny Jefferson an appointment (quickly repealed)
  • The Court grew to 7 (1807), 9 (1837), and 10 (1863) as new federal circuits were added
  • 1866: Congress reduced it to seven
• The Judiciary Act of 1869 restored nine justices, the number ever since
• FDR’s 1937 “court-packing” plan to add up to six justices failed

Appointments to the Court

Controversial Appointments to the Court

Abe Fortas (1968)

• Fortas was already an associate justice and a close adviser to President Lyndon Johnson
• In 1968, the lame-duck Johnson nominated him to replace Chief Justice Earl Warren
• Republicans and southern Democrats objected to:
  • Cronyism: Fortas kept advising Johnson while sitting on the Court
  • The liberal rulings of the Warren Court
  • A $15,000 speaking fee funded by private business interests
• Opponents filibustered the nomination, and a vote to end debate failed 45–43; Johnson withdrew it
• In 1969, Fortas resigned from the Court under threat of impeachment over payments from a financier under federal investigation

Robert Bork (1987)

• Nominated by Reagan to replace swing justice Lewis Powell
• A prominent originalist critic of Roe v. Wade and of the Court’s privacy and civil rights rulings
  • As solicitor general, he fired Watergate special prosecutor Archibald Cox (the “Saturday Night Massacre,” 1973)
• Sen. Ted Kennedy attacked the nomination within an hour: “Robert Bork’s America is a land in which women would be forced into back-alley abortions…”
• Rejected 42–58, the first nomination defeated mainly over judicial philosophy
  • Gave us the verb “to bork”: to defeat a nominee by attacking their record and views

Clarence Thomas (1991)

• Nominated by G.H.W. Bush to replace Thurgood Marshall, the first Black justice
• Law professor Anita Hill, who had worked for Thomas at the EEOC, testified that he had sexually harassed her
• Thomas denied the allegations and called the hearings “a high-tech lynching for uppity Blacks”
• The Judiciary Committee (chaired by Joe Biden) deadlocked 7–7
• Confirmed 52–48, then the narrowest margin in a century

Harriet Miers (2005)

• George W. Bush nominated Miers, his White House counsel, to replace Sandra Day O’Connor
• Miers had never been a judge and had little public record on constitutional issues
• The strongest opposition came from conservatives in Bush’s own party:
  • They questioned her qualifications and her commitment to a conservative judicial philosophy
  • Critics also charged cronyism
• Senators of both parties called her answers to the Judiciary Committee’s questionnaire inadequate
• Miers withdrew after 24 days, citing Senate demands for internal White House documents
• Bush then nominated Samuel Alito, who was confirmed 58–42

Merrick Garland (2016)

• Justice Antonin Scalia died in February 2016, nine months before the presidential election
• Obama nominated Merrick Garland, a moderate appeals court judge
• Majority Leader Mitch McConnell refused to hold hearings or a vote: “The American people should have a voice in the selection of their next Supreme Court Justice”
• The nomination expired after 293 days
• Trump filled the seat with Neil Gorsuch in 2017, after Senate Republicans eliminated the filibuster for Supreme Court nominees (the “nuclear option”)

Brett Kavanaugh (2018)

• Nominated by Trump to replace Anthony Kennedy, the Court’s swing vote
• Christine Blasey Ford testified that Kavanaugh had sexually assaulted her when they were in high school
• Kavanaugh angrily denied the allegation, calling the process “a calculated and orchestrated political hit”
• Confirmed 50–48, the closest Supreme Court vote since 1881

Amy Coney Barrett (2020)

• Justice Ruth Bader Ginsburg died on September 18, 2020, about seven weeks before the presidential election
• Trump nominated Barrett, a Notre Dame law professor and appeals court judge, within days
• Confirmed 52–48 on October 26, just eight days before Election Day
  • No Democratic votes; the first justice since 1869 confirmed with no votes from the minority party
• Critics pointed to the Garland precedent; McConnell argued 2020 was different because the same party controlled the White House and the Senate

Selection of Cases

• The Court accepts fewer than two percent of as many as ten thousand cases it is asked to review every year
• Four of the nine judges must vote to accept a case; this is called the Rule of Four
• A petitioner asks the Supreme Court to grant a writ of certiorari, a request that the lower court send up its record of the case
• The solicitor general decides which cases should be appealed from the lower courts and personally approves each one presented
  • The lawyer who represents the federal government before the Supreme Court
• The Court takes into consideration external influences, not just from interest groups but also from the public, from media attention, and from the solicitor general

Getting to Court

• Extremely difficult to have a case heard before the Supreme Court — and usually very costly

• In forma pauperis: allows indigent petitioners to proceed without paying standard court fees

• Interest groups (ACLU, NAACP) may adopt or mobilize a case they see as important

• Fee shifting: lets a winning plaintiff recover costs from the defendant

• Cases must have standing; class action suits let many similarly situated citizens benefit from one case

Standing

• Standing: the legal right to bring a lawsuit
• Courts only hear real cases and controversies (Article III), not hypothetical questions
• To have standing, a plaintiff must show:
  • Injury: they suffered (or will suffer) actual harm, not just disagreement with a policy
  • Causation: the harm was caused by the party being sued
  • Redressability: a court ruling can fix the harm
• Standing lets courts avoid cases and leave political questions to the elected branches

Court Procedures

• Once a case has been placed on the docket, briefs, or short arguments explaining each party’s view of the case, must be submitted
  • Amicus curiae (friend of the court) briefs are filed by interested outsiders
  • After initial briefs have been filed, both parties may file subsequent briefs in response to the first

Court Procedures

• The Court hears oral arguments from October through April
  • During oral arguments, each side’s lawyers have thirty minutes to make their legal case
• When oral arguments have been concluded, the justices have to decide the case
  • Conference: held in private twice a week when the Court is in session
    • The chief justice speaks about the case and then each justice speaks in turn, in descending order of seniority, ending with the most recently appointed justice
    • The judges then take an initial final vote in private before the official announcement of the decision is made public

Court Opinions

• Majority opinion
  • The published majority opinion explains the justices’ decision
• Dissenting opinion
  • Written by any justice who disagrees with the majority opinion
• Concurring opinion
  • Written by any justice who agrees with the outcome of the case but not with the majority’s reasoning in it
• Court opinion sets precedent for the future

Court Opinions

• An individual justice’s views may be influenced by:
  • How they define their role:
    • Judicial activism: a strong belief in the need to defend individual rights and liberties
    • Judicial restraint: a strong belief in deferring decisions to the elected branches
  • Their personal beliefs and political attitudes
  • Public opinion

Judicial Philosophy

• How should judges read the Constitution and laws?
• Textualism: apply the plain meaning of the words in the text, not what lawmakers intended or hoped to achieve
• Originalism: interpret the Constitution according to its original public meaning at the time it was ratified
  • Associated with Justices Scalia, Thomas, Gorsuch, and Barrett
• Living Constitution: the Constitution’s broad principles (liberty, equal protection, “cruel and unusual”) should be applied to modern conditions the framers could not foresee
  • Its meaning develops over time through precedent and changing social understanding

Power to Make Policy

• Justices make policy when they reinterpret laws or the Constitution — and through the remedies they impose

• Many federal laws have been declared unconstitutional

• The Court can change its mind about prior rulings, or let them stand (stare decisis)

• The Court can involve itself with political questions — issues it could instead leave to the elected branches

• Supreme Court decisions are the law of the land, even when a dispute began at the local level

Checks on Judicial Power

• Judges cannot enforce their own decisions — they depend on the executive and legislature

• Congress may impeach judges

• Congress can alter the makeup of the courts

• New constitutional amendments may (rarely) overturn a decision

• Laws can be rewritten to survive judicial review later

Two Paths to the Court

• The traditional merits docket: certiorari granted, fully briefed, argued in open court, resolved by signed opinions

• The emergency docket: asking the Court to freeze a lower-court ruling or government policy while an appeal proceeds

• The “shadow docket”: substantive emergency-docket rulings — typically unsigned, minimally briefed, with little or no explanation

A Milestone

• In the term ending October 2025, the Court issued 63 substantive shadow-docket orders versus 56 signed merits decisions — shadow-docket rulings outnumbered the traditional docket for the first time in modern history

• Only 17% of shadow-docket votes had any public record of a vote or opinion at all

• Use has grown sharply: the Obama and Bush administrations together filed 8 emergency petitions across 16 years; the Trump administration filed 32 in 2025 alone

Why It Matters

• Consequential rulings decided with little or no public reasoning — e.g., limits on nationwide injunctions, and interim orders reshaping congressional maps mid-election

• Justice Kagan (2021): shadow-docket decisionmaking “every day becomes more unreasoned, inconsistent, and impossible to defend”

• Justice Jackson (2026): “We cannot expect the public to have faith in our judicial system if… we consistently green-light harmful acts that do real damage”