The Federal Courts

GOVT 2305

In this section we look at the development of the federal courts over time, with special attention

paid to the Supreme Court.

It concludes with a look at the current Supreme Court, including

information about its current members.

Some links:

The History of the Supreme Court.

History of the Supreme Court of the United States – Wikipedia.

The Supreme Court Historical Society.

The Federal Judicial Center.

And for even more, there’s this from the Supreme Court Website

The Court and Constitutional Interpretation

The United States court system has evolved over time due to the

passage of several redesigns of the court system in one of the many

Judiciary Acts passed over American history.

For a good survey of the history of the Federal courts read: Creating

the Federal Judicial System.

And here are links to Wikipedia pages that describe the major pieces of legislation that impacted the design of the judiciary over time:

- Judiciary Act of 1789, established the federal judiciary.- Judiciary Act of 1801, also called the Midnight Judges Act.- Judiciary Act of 1802, repealed the 1801 Act.- "Judiciary Act of 1866" may refer to two different laws. Ch. 210, 14 Stat. 209 (July 23, 1866) is more commonly called the Judicial Circuits ActCh. 288, 14 Stat. 306 (July 27, 1866) provided for the removal of certain cases from state courts to the federal courts.- Judiciary Act of 1869, also called the Circuit Judges Act of 1869- Judiciary Act of 1891, also called the Evarts Act or the Circuit Courts of Appeals Act.- Judiciary Act of 1925, also called the Certiorari Act or the Judges' Bill.

For a bit of history, here are maps of the federal courts over history.

These are pulled from Creating the Federal Judicial System.

As seen in a few different places: here is the map of the current

design of the judiciary:

For as much detail as you want, click on these:

United States District CourtsUnited States Courts of Appeals

United States Supreme Court

Next Topic:

The Politics of Appointment and Confirmation.

Remember that the purpose of the appointed judiciary is to ensure a qualified

judiciary, as well as one that is removed from the political pressures that ultimately

stem.

The basic appointment process is established in Article II of the Constitution.

It is one of the president’s powers.

The president makes the appointments, but the Senate must confirm those

appointments. Click here for info on the appointments clause.

These people then serve during good behavior – until they die or resign – which means they can be on the court for a long, long time. Click here for longevity records.

Federal Judges and Justices are supposed to be apolitical, but Presidents and Senators are not.

Each is aware that appointees to the court will be making decisions well into the future. They take the ideological and political leanings of these appointees

into account when deciding who to appoint, or who to confirm. How are they likely to interpret the

Constitution? What do they see the role of the court to be? The political objectives of a legislator or president

can sometimes be achieved by the people they get into the courts.

The more appointees a president can make to the federal courts,

especially the Supreme Court – the greater impact they will have over

time.

Click here for an article about President Obama’s impact on the

judiciary.

Click here for a review of presidential judicial appointments

since 1980:

Judicial appointment history for United States federal courts.

The appointment process varies depending on whether it is for a position as federal judge, a judge

on the court of appeals, or the Supreme Court.

For a look at the current state of federal judicial nominations – as of

May 2014 – click on judicialnominations.org.

Here is the breakdown of appellate court judges by party, and listing

the number of vacancies as of May 2014

Why allow for vacancies?

Sometimes the party out of power in the presidency tries to keep

vacancies open in case one of their candidates wins the next election.

Eras of the Supreme Court

There have been 17 Supreme Court Chief Justices.

Eras of the court are generally divide into “courts” based on who

happened to be chief justice at that time

List of Justices of the Supreme Court of the United States

First, a quick word on what a Chief Justice is exactly. The Chief

Justice’s responsibilities are mostly administrative. The office has no

special judicial powers.

The Chief Justice leads the business of the Supreme Court. He or she presides over oral arguments before

the Court. When the Court renders an opinion, the Chief Justice—when in the majority—decides who

writes the Court's opinion. Finally, the Chief Justice has significant agenda-setting power over the Court's

meetings. In the case of an impeachment of a President of the United States, which has occurred twice, the Chief Justice presides over the trial in the Senate. In

modern tradition, the Chief Justice also has the ceremonial duty of administering the oath of office of

the President of the United States. – Wikipedia.

For a quick overview of the history of the Supreme Court based on the

different times that a specific person held the job of Chief

Justice, I highly recommend this page from the Supreme Court Historical Society’s website.

More detailed information can be found here: Oyez Project

It separates all courts based on who served together for a period of time. And of course, here’s the

relevant wikipedia page.

Some detail on each

John Jay / The Jay Court

September 26, 1789–June 29,

1795

The Supreme Court was the only court of appeals for the nation. It was composed of six Justices. All the original Justices had helped

write the Constitution. The court had little business, but the Justices

also has to serve as trial (circuit court) judges, which required

travel and a lot of work.

Major case during this era: Chisholm v Georgia.

Led to the 11th Amendment and restrictions on the ability of the

national government to hear lawsuits against states by citizens

of other states.

Jay – who had helped write the Federalists Papers – was sent to negotiate a treaty with Britain that was meant to resolve lingering problems left over from the Treaty of Paris

which ended the American Revolution. This was called Jay’s Treaty. Disputes over the treaty

were political in nature. Federalists supported it, Democrat-Republicans opposed it. The dispute helped solidify conflict between the emerging

parties, and led to future disputes on the court.

John Rutledge / The Rutledge

Court

July 1, 1795–December 28,

1795

Rutledge was a recess appointment by Washington. His opposition to the Jay Treaty put

him at odds with Washington and his appointment was rejected by

the Senate.

Oliver Ellsworth / The Ellsworth

Court

March 4, 1796–September 30,

1800

Ellsworth suggested that the court had the power of judicial review in Hylton v United

States, and stated that a presidential signature was not necessary for

constitutional amendments to pass

Was responsible for encouraging the Justices to sign on to opinions rather than

each write their own.

John Marshall / The Marshall

Court

January 31, 1801–July 6,

1835

Commonly argued to be the greatest Justice in Supreme Court history. Was a cousin of Thomas Jefferson. They would fight over

the nature of national power.

"My gift of John Marshall to the people of the United States was

the proudest act of my life." John Adams.

Increased the power of the court.

Established Judicial Review

Marshall pushed for the idea that the union was “the supreme government of

the whole American people.”

Presided over the impeachment of Samuel Chase.

Chase – a Federalist - was attacked by opponents, including Thomas Jefferson. His impeachment was considered to be

politically motivated. The failure to remove him was argued to help establish the

independence of the judiciary, and the Supreme Court especially.

Various cases heard by the Marshall Court strengthened the

court. Examples:

McCullough v MarylandCohen v VirginiaGibbons v Ogden

"We must never forget," he said, "that it is a constitution we are expounding . . . a constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.“ – John Marshall

From the Supreme Court Historical Society:

“When he took the judicial oath the public hardly noticed; when he died the Nation

mourned him. ‘There was something irresistibly winning about him,’ said the Richmond Enquirer and Niles’ Register,

which had long denounced his decisions, said, "Next to Washington, only, did he

possess the reverence and homage of the heart of the American people."

Marshall was one of the longest serving members of the court.

He is #4 on this list.

Major appointment

during that time: Joseph Story.

Story wrote the first major book elaborating on the nature of the

Constitution:

Commentaries on the Constitution of the United States

Roger B. Taney / The Taney Court

March 15, 1836–October 12,

1864

Taney was appointed by Andrew Jackson in many ways to push back

against many of the accomplishments of John Marshall.

He interpreted corporation charters more strictly, state

powers more generously, than Marshall had. But found

community rights to be as important as corporate rights, so he did not expand the rights of

corporations beyond that of communities.

Trivia: Taney was the first justice to wear pants – not knee breeches.

Most controversial decision: Dred Scott. v. Sanford (1857).

This is argued by many legal scholars as the worst decision in

the history of the Supreme Court. Some claim it made the Civil War

inevitable.

He both overruled the Missouri Compromise of 1820 and

mandated that people of African descent could not be “citizens” and

had no right to use the courts to redress grievances, especially

against whites.

“According to Taney, the authors of the Constitution had viewed all

blacks as ‘beings of an inferior order, and altogether unfit to associate with the white race,

either in social or political relations, and so far inferior that

they had no rights which the white man was bound to respect.’”

By overturning the Missouri Compromise, the arguments could be made that no

state could deny the right of slave owners to have slaves wherever they choose.

The enhanced the rise of the abolition movement, the growth of the Republican Party, and led to the election of Abraham Lincoln which in turn led to the secession

of slave states and the start of the Civil War.

Chief Justice Taney administered the oath of office to Lincoln on March 4, 1861, and heard

him disclaim "any assault upon the Court." But Lincoln warned solemnly: "if the policy of the

Government, upon vital questions affecting the whole people, is to be irrevocably fixed by

decisions of the Supreme Court, the instant they are made, in ordinary litigation . . . the people will have ceased to be their own rulers. . . ."

Salmon P. Chase / The Chase Court

December 6, 1864–May 7,

1873

Chase had run against Lincoln in 1864.

Presided over a period of constitutional transformation

following the end of the Civil War. The 13th, 14th and 15th Amendments were added to the Constitution during his

term of office.

He protected the court from efforts to dismantle it.

Radical Republicans attempted to minimize the power of the courts

and the executive branch.

The court heard a variety of cases related to legal tender beginning with Hepburn v.

Griswold, a test case challenging constitutionality of the Legal Tender Act Click of

1862. Click here for Legal Tender Cases.

The question was whether Congress could allow for legal tender to be printed that was not based

on gold or silver. This was a method used to finance the Civil War, it also allowed for the use

of paper money.

Morrison Waite / The Waite Court

March 4, 1874–March 23, 1888

Fights heated up over shipping rates charged by railroads to

farmers.

The Granger Cases –

States passed laws regulating rates and the railroads claimed they

were unconstitutional.

Munn v Illinois

The Fourteenth Amendment does not prevent the State of Illinois

from regulating charges for use of a business' grain elevators.

The court argued that states could regulate railroads, the rights of

private property could be balanced against the rights of the

community.

The court agreed that the Civil Rights Acts of 1875 was an

unconstitutional violation of the 14th Amendment’s equal

protection clause. Click here for the Civil Rights Cases.

It only applied to state actions, not private actions.

The workload of the court led to the creation of the circuit courts of

appeals.

Melville Fuller / The Fuller Court

October 8, 1888–July 4,

1910

This was the first court where justices did not have to ride the

circuit. From now on, justices only had to sit in DC.

The Fuller Court oversaw the transition of the United States

from an agrarian to a commercial nation. The court heard a large

number of cases that concerned the extent of Congress’ ability to

regulate commerce. These conflict are ongoing in many ways.

Many of these cases concerned the impact of The Sherman Anti-Trust

Act which allowed the national government to break apart

monopolies.

The Court weakened the act by overruling cases breaking apart

monopolies, though some actions were allowed to proceed, notable in Northern Securities Co. v. United

States.

Ruled that Congress could pass laws punishing price-fixing under

the Sherman Anti-Trust Act. Restraint of trade can be made

illegal by Congress.

This strengthened the law.

Punished organized labor

Injunctions against leaders of the Pullman Strike, including Eugene v Debs were allowed to go forward.

See In re Debs (1895).

The court narrowly voted a federal income tax unconstitutional in Pollock v. Farmers' Loan & Trust

Co.

The unapportioned income taxes on interest, dividends and rents imposed by the Income Tax

Act of 1894 were, in effect, direct taxes, and were unconstitutional because they violated the

rule that direct taxes be apportioned. This would be overturned by the 16th Amendment.

The fuller Court made separate but equal the law in Plessy v Ferguson

(1896)

The court actively weakened the impact of the equal protection

clause.

During this time the nation was also expanding its activities overseas. As a

result of the Spanish-American War the United States acquired a small handful of territories including Cuba, the Philippines,

Guam and Puerto Rico.

Since these areas were already populated, questions were asked about the legal

status of these residents.

Insular Cases

These were several cases in the early 1900s where the court responded to the expansion of American territories around the world. They ruled that constitutional

rights did not automatically extend to people who lived in those territories.

Theodore Roosevelt becomes president

during this era of the court:

He faced what he called the "absolutely

vital question"—whether the United

States Government had the power to control

the giant corporations of the day.

Roosevelt was a progressive and wanted to actively use the powers

of the national government to achieve his objectives.

Business interests used the courts to push back against these efforts. The courts were more often than

not supportive.

One example: Lochner v. New York.

This was a 1905 case that recognized a right to contract as implicit in the die process clause of

the 14th Amendment. The state of New York could not establish limits on working hours – 10 hours per day, 6 days a week – if an employee

was willing to work longer. This began an era in the Supreme Court – the Lochner Era - where a

series of cases struck down laws meant to impact working conditions.

States, ruled Justice Rufus W. Peckham, must not pass such laws, "mere meddlesome interferences" to keep grown men from taking care of themselves. States have a "police power" to

protect the public, but they may not limit such individual rights as liberty of contract: A worker must be free to make his own

contract with his employer.

Justice Harlan dissented, citing evidence that bakers suffered eye and lung troubles, that New York might protect their health. And Oliver Wendell Holmes, who had joined the Court in 1902, dissented separately, to say that "a constitution is not intended to embody a particular economic theory," that laws might rest

on "novel and even shocking" ideas and be constitutional. – Source.

An exemption from these cases was Muller v Oregon. A law placing restrictions on the labor of certain

classes of women was upheld.

The case was argued by future Justice Louis Brandeis.

Brandeis – as a lawyer before the court -

began the practice of introducing facts, not

just legal arguments, in his arguments. His argument in Muller relied on scientific

information as much as legal arguments.

This would lead to an expansion of court activity in the 20th Century.

The court began accepting an increased role of the national government, partly because the

states were not sufficiently regulating the economy in the interest of the general public.

They were more likely to protect the interests of large corporations, generally because the

corporations were able to control the state governments.

"When an evil is a national evil, it must be cured by a national

remedy," cried Senator Albert J. Beveridge of Indiana. Reformers

were demanding change in politics, business, society in general; in

response, Congress was assuming a "police power" for the whole

country. – Source.

The Fuller Court would uphold the constitutionality of the Mann Act (which made it a federal crime to

transport women across state lines for “immoral purposes”) and the Pure Food and Drug Act (which

allowed for the federal inspection of food and drugs).

Major appointment

during that time: Oliver Wendell Holmes, Jr. He

was appointed in 1902 and served

until 1932.

He would be responsible for many decisions that would enforce the

freedom of speech.

Edward Douglass White / The White Court

December 19, 1910–May 19,

1921

Developed the exclusionary rule, but only applied it to federal officials. It would not be applied to states until Mapp v Ohio in

1961.

Reformers – like Louis Brandeis – are appointed to the bench. They were more

likely to accept a role for the federal government in economic regulation, but they were still in a minority on the court.

They were not that successful early on. The Supreme Court overturned the Keating-

Owen Act of 1916 which prohibited interstate commerce in products produced

by child labor.

The case which overturned it was Hammer v. Dagenhart (1918). The court ruled that production is not commerce, so Congress

had no ability to impact child labor.

Oliver Wendell Holmes issued a strongly worded dissent.

Legislation can begin where an evil begins, retorted Justice Oliver Wendell Holmes,

dissenting. If Congress chooses to prohibit trade in "the product of ruined lives," the Court should not outlaw its choice. He added: "I

should have thought that if we were to introduce our own moral conceptions where in

my opinion they do not belong, this was preeminently a case for upholding the exercise

of all its powers by the United States.“ – Source.

Congress passed two critical laws during WWI.

The Espionage ActThe Sedition Act

The Sedition Act was written broadly, which allowed for a high

level of prosecution.

The clear and present danger rule was established to distinguish between words uttered during times of conflict and times of

peace.

Holmes’ dissent in Abrams v US upheld the right of people to be

critical of government.

It helped narrow the ability of government to use sedition to punish speech – we will discuss

this further in an upcoming section.

William Howard Taft / The Taft

Court

July 11, 1921–February 3, 1930

Ruled that federal child labor laws were unconstitutional.

Gitlow v. New York

Upheld the New York Criminal Anarchy Law, but ruled that the

14th Amendment made speech and press freedoms applicable to the

states.

Oliver Wendell Holmes and Louis D. Brandeis would have set Gitlow free. As Holmes explained, they did

not think his "redundant discourse" a public danger. The

majority called it "a direct incitement." Holmes replied

calmly: "Every idea is an incitement."

Moore v. Dempsey

Mob-dominated trials were a violation of the Due Process Clause of the Fourteenth

Amendment. Federal courts were furthermore duty-bound to review habeas corpus petitions

that raised claims of discrimination in state trials, and to order the release of unfairly

convicted defendants if the alleged violations were found to be true. Eastern District of

Arkansas reversed and remanded.

How does the Constitution protect the right to a fair trial in state

courts?

Judges Bill – 1925

By limiting the right of appeal, this law let the Supreme Court devote its attention to

constitutional issues and important questions of federal law. In most cases

since 1925, the parties ask permission to be heard; the Justices grant or deny it at

discretion.

This changed procedures on the court and allowed the court the

ability to choose cases.

Adkins v. Children’s Hospital

Minimum wage law for women violated the due process right to

contract freely. D.C. Court of Appeals affirmed.

The court was dominated by:

The Four Horsemen

Actively overturned many laws.

Sometimes joined by the two roving Justices

The Three Musketeers

Charles Evans Hughes / The Hughes Court

February 24, 1930–June 30,

1941

This is the court that dealt with the constitutionality of New Deal

legislation.

Near v Minnesota

Scottsboro Boys

if a defendant lacks a lawyer and a fairly chosen jury, the Constitution

can help him.

Tom Mooney

. . . if a state uses perjured witnesses, knowing that they lie, it

violates the Fourteenth Amendment’s guarantee of due process of law; it must provide ways to set aside such tainted

convictions.

Court packing plan

Expansion of the commerce clause

Constitution in Exile Movement

Harlan Fiske Stone / The Stone Court

July 3, 1941–April 22, 1946

Upheld the constitutionality of the Fair Labor Standards Act of 1938.

Upheld the West Virginia’s requirement that kids salute the

flag in Gobitis, then reversed itself in Barnette.

It is a "fixed star in our constitutional constellation" this fact—"no official, high or petty,"

can prescribe orthodoxy in politics, nationalism, or religion, for any

citizen. – Justice Robert Jackson.

Trivia: one of Jackson’s law clerks was future Chief Justice William

Rehnquist.

Upheld the internment of Japanese American citizens in Korematsu v. United States. Argued it feel under

the president’s war powers.

Defended its powers against attempts by the executive to limit

access to the courts.

Fred M. Vinson / The Vinson Court

June 24, 1946–September 8,

1953

He events that would lead to Brown v Board of education were set in motion during this period of

time.

Racially segregated school were unequal – in violation of the separate bit equal doctrine.

Facts drove the cases.

Vinson dies before the case concluded

Earl Warren / The Warren

Court

October 5, 1953–June 23,

1969

Overturned separate but equal doctrine

Began to strengthen equal access to the courts.

Griffin (?)

Gideon v

Mapp v Ohio

Miranda

The court weighed in on apportionment

Baker v Carr

Engel v Vitale

"Almighty God, we acknowledge our dependence upon Thee, and

we beg Thy blessings upon us, our parents, our teachers and our

Country."

No government should compose official prayers for Americans to

recite.

Griswold v Connecticut

Ruled that the application of the death penalty – its racial

unbalance – violated the 8th Amendment.

Warren E. Burger / The Burger

Court

June 23, 1969–September 26,

1986

Continued to clarify the dividing line between church and state

Freedom of speech and press

Pentagon Papers

Obscenity and pornography

Defendants rights enhanced

But established good faith exemption to the exclusionary

rule.

Watergate tapes

Executive Privilege

What can the courts command a president to do?

Began focusing on sex discrimination

Began narrowing justifications for affirmative action

Roe v Wade

Ruled that the application of the death penalty – its racial

unbalance – violated the 8th Amendment.

William Rehnquist / The Rehnquist Court

September 26, 1986–September

3, 2005

Rehnquist clerked for Robert Jackson and advised that he vote against Brown in Brown v Board. Appointed as an associate Justice by Nixon, made Chief Justice by

Ronald Reagan.

John G. Roberts / The Roberts

Court

September 29, 2005–present

Each era of the court is influence by the results of previous

Presidential and Senatorial elections.

If the electorate votes in a liberal direction, the courts will – as

positions are made available – shift in that direction, and vice versa.

Let’s pay special attention to transition from the Warren to the

Rehnquist court.

Earl Warren, if you recall from the last set of slides, was one of Eisenhower’s self described

mistakes. He became Chief Justice at a moment when the court was

composed of people nominated by FDR or Truman.

They were primed to begin to accept arguments developed by

liberals and progressives over previous decades. Cases involving

segregation, speech and due process were coming to the court

with greater frequency.

The Warren Court’s decisions tended to be activist and were

based on broad interpretations of Constitutional language

Their decisions included some of the more famous an consequential of the 20th Century, but they also

led to a backlash.

Brown v. Board of EducationBaker v. CarrMapp v. OhioEngel v Vitale

Griswold v. Conn

This is especially true of Brown v. Board of Education which led to

the dismantling of public education in southern states, and a slow mobilization against the court.

Nixon’s Southern Strategy involved using resentment against the court as a way of getting the votes of the

South.

Once Nixon became president, he appointed William Rehnquist (who had been a law clerk when Brown was decided) an Associate Justice.

He would be elevated to Chief Justice when Ronald Reagan

became President.

From 1968 – 1993, no Democratic President would be able to make an appointment to the Supreme

Court. Many, though not all, of the Justices appointed during this time

promoted judicial restraint and narrow interpretations of the

Constitution.

They rolled back many Warren Court decisions.

Three Examples: One, they made it difficult to prove racial

discrimination. Two, they made it easier for illegally obtained

evidence to be introduced into court. Three, they made it easier to

have religious displays on public ground.

Click here for the current court

Clarence Thomas

- Clarence Thomas's Originalism- What Clarence Thomas's Video-

Games Dissent Tells Us About 'Originalism‘

- Clarence Thomas’ Jurisprudence Unexplained.

Ruth Bader Ginsburg

http://scholarship.law.duke.edu/cgi/viewcontent.cgi?

article=2758&context=faculty_scholarship

Justice Kennedy’s Jurisprudence

http://scholarship.law.gwu.edu/cgi/viewcontent.cgi?

article=1843&context=faculty_publications

Appropriate Readings

Creating the Federal Judicial System

Ideological Leaning of US Supreme Court Justices

The U.S. Supreme Court

The Conservatives

Antonin ScaliaClarence Thomas

John RobertsSamuel Alito

The Liberals

Ruth Bader GinsburgStephen Breyer

Elena Kagan (expected)Sonia Sotomayor (expected)

The Swing Voter

Anthony Kennedy

Each justice is allowed to hire a small handful of law clerks to assist

them. It is not unusual for law clerks to later serve on the court.

See list of clerks here.

Data Regarding Recent Court Decisions:

The Supreme Court Data BaseScotus StatPack

How do cases get to the Supreme Court?

Procedures

A case from a lower court is appealed by the lowing party.

Specifically they request a Writ of Certiorari. This is a writ where the

court asks the lower courts to send it the trial and appellate records so

the court can search for errors.

If four justices choose to hear the case it is placed on the court’s

calendar.

The Rule of Four.

If you won at the lower level, its generally bad news if the Supreme

Court agrees to hear your case. More often than not the case will

be overturned.

The petitioner – the party that initiates the process – sends a legal brief. The respondent – the party that won at the lower level – can also if it chooses. It doesn’t have

to.

The court also considers amicus briefs – friend of the court briefs – sent in by parties not involved in

the specific case, but interested in the outcome.

Oral arguments are held after the briefs are read. Generally each side generally has 30 minutes to make their case. The proceedings can be

open-ended and even entertaining.

Click here for recordings and transcripts.

After oral arguments are held, conferences are held internally which result in votes where the

justices line up for and against the petitioner.

The Chief Justice assigns the responsibility to write the majority

decision – the one that carries weight – to whoever he chooses, unless he wants to do it himself.

Those in the minority can write dissenting opinions.

Any justice can write a concurring opinion.