On May 2, 2022, a leaked draft of a majority opinion written by Supreme Court Justice Samuel Alito was published by the news website Politico. The leak confirmed what court-watchers had long speculated: the Supreme Court was about to overturn its 1973 decision in Roe v. Wade, which had declared the right to abortion to be constitutionally protected. One month later, the reversal became official when the Supreme Court ruled in Dobbs v. Jackson Women’s Health Organization that no right to abortion exists in the Constitution, and that Roe was “egregiously wrong” for having claimed otherwise. The question of whether to legalize abortion was now once again a matter for the states to decide on an individual basis.
Amy Coney Barrett is sworn in as a Supreme Court justice by Justice Clarence Thomas, as Barrett’s husband Jesse and President Donald Trump look on.
The Dobbs ruling was a landmark victory for pro-life advocates, who had spent nearly half a century attempting to reverse Roe and return abortion policy to state control. Although Dobbs was technically a 6–3 decision, only five judges (the smallest possible majority) supported overturning Roe. The critical fifth vote belonged to Justice Amy Coney Barrett, who had been nominated by President Donald Trump and confirmed by the Senate in October of 2020 as the replacement for the recently deceased Justice Ruth Bader Ginsburg. Nominating a staunch conservative judge like Barrett to succeed Ginsburg — considered by many to have been the court’s archliberal — caused a major shift in the average ideology of the court, making Barrett’s nomination particularly controversial.
Compounding the controversy was the fact that Ginsburg’s death had occurred less than two months before the 2020 presidential election. At the time, Democrats contended that the vacancy should not be filled until after the presidential inauguration in January (which might usher in a new president), while Republicans asserted Trump’s right to nominate a replacement at any point during his presidency. This disagreement was the exact opposite of the one which occurred in 2016, when Republicans argued that a vacant Supreme Court seat should be left to the next president to fill and Democrats insisted that then-President Barack Obama was well within his constitutional authority to nominate a new justice.
The Dobbs leak was an exceedingly rare moment of transparency for the federal judiciary, generally the most mysterious branch of America’s national government. Most of its work occurs out of the public eye. No cameras are allowed in the courtroom while the Supreme Court is in session (though audio recordings are permitted). Its deliberations and rulings are cloaked in the complexity and opaqueness of the law. Its justices do not crave the spotlight the way presidents and members of Congress do, nor do they openly articulate their political beliefs, preferring instead to maintain an aura of impartiality. In these and other ways, the judicial branch appears far less political than its legislative and executive counterparts, and federal judges strive to maintain that perception.
Yet in key moments — the death of a justice, the nomination of his or her replacement, a landmark ruling in a major case — the federal courts suddenly intrude upon America’s political consciousness, often sparking bitter disputes over their intervention (or nonintervention) in governmental affairs in which many citizens feel they shouldn’t (or should) intervene. What was once indisputably the weakest branch has evolved to profoundly shape public policy in the United States. Notwithstanding its cultivated image of aloofness and neutrality, the federal court system and the judges who sit on its benches are anything but nonpolitical.
The American Federal Judiciary
Article III of the Constitution establishes the judicial branch of America’s national government and tasks it with interpreting both the Constitution and the laws made by Congress. The Founders believed a federal judiciary was necessary based on their experience under the Articles of Confederation. Without a court system capable of adjudicating interstate disputes, competing territorial claims and conflicting economic policies threatened to fracture the Union. State courts could not be relied upon to impartially resolve issues involving their own states, but a federal court could settle them without being obviously biased toward one side or the other.
Article III only names one federal court, the Supreme Court, but it bestows upon Congress the power to “ordain and establish” inferior courts as it sees fit. Using this power, Congress has established two other general categories of federal courts. Directly beneath the Supreme Court are 13 appellate courts. Each appellate court (also called a circuit court or court of appeals) presides over a “circuit” of lower courts. 11 of these 13 circuits, numbered First through Eleventh, cover the various states and territories of the United States (as depicted in Figure 14.1 below). The remaining circuits are the District of Columbia Circuit (which handles many issues involving Congress and the executive branch) and the Federal Circuit (which deals with topics such as patent and trademark law).
Figure 14.1: U.S. states and territories by appellate court jurisdiction (Not pictured: Federal Circuit).
Beneath the appellate courts are 94 district courts. Each district court covers all or part of a state or territory, with larger and more populous states being split into multiple districts. For example, Pennsylvania is divided into a Western District, a Middle District, and an Eastern District, whereas Oregon is encompassed by a single district.
Most federal cases begin at the district court level. The losing side in a district court case can appeal to an appellate court if it is dissatisfied with the outcome. The losing side in an appellate court case can likewise appeal to the Supreme Court. The Supreme Court is the “court of last resort,” meaning that there is no appeal opportunity for the losing side in a Supreme Court case, although the Supreme Court can overturn its own prior decisions in subsequent cases.
Federal & State Court Jurisdiction
The federal judiciary is not the only judiciary in the United States. American federalism gives both the national government and state governments the power to establish and administer courts. Thus, in addition to the federal court system, each state has its own court system, some of which have existed since before the Constitution was ratified.
Cases originate in either federal courts or state courts depending on the issues at stake and the parties involved. The specific criteria which determine whether a case belongs in the federal or state judiciary are complicated, but a useful rule of thumb is that cases which “fit” neatly within a state’s borders start in that state’s court system, whereas other cases start in the federal court system. Cases pertaining to the U.S. Constitution or to federal law originate in federal courts, as do cases that cross state lines, cases involving foreign parties, and cases in which at least one party is a state.
Some cases originate in a state court but escalate to a federal court when new issues arise during the judicial process. The 1963 Supreme Court case Gideon v. Wainwright is one prominent example. Originally, it was a standard case of breaking-and-entering, the sort of crime that state courts across the country handle on a daily basis. It became a federal matter when Florida violated Clarence Gideon’s Sixth Amendment right to counsel by denying him a lawyer when he could not afford one of his own. Had Gideon appealed his conviction purely on the grounds that he was innocent, the case would have remained under state court jurisdiction. Instead, he appealed on the basis of Florida’s unconstitutional denial of his Sixth Amendment right, which — because it involved a right guaranteed in the U.S. Constitution — made his appeal a matter for the federal courts to decide.
Judicial Review
Originally, the federal judiciary was decidedly the weakest of the three branches of the national government. Preoccupied with debates over congressional representation and the power of the presidency, the Founders spent comparably little time during the Constitutional Convention debating the structure of the federal courts and left many of its powers undefined. Alexander Hamilton, writing in Federalist No. 78, remarked that the judiciary had “no influence over either the sword or the purse” — that is, no ability either to enforce its judgments or to raise and spend money to do so.
In its infancy, the Supreme Court had little clout with which to check either Congress or the president. It gained substantial power in 1803 as a result of the case Marbury v. Madison, in which it was asked to decide whether a federal judge appointed by outgoing President John Adams was entitled to his position under the Judiciary Act of 1789. Rather than side entirely with either William Marbury (the appointed judge) or James Madison (the new Secretary of State who had blocked the appointment), the Supreme Court (in an opinion written by Chief Justice John Marshall) ruled that the relevant section of the Judiciary Act under which Marbury was appointed was unconstitutional, thereby striking it down and rendering the question of Marbury’s appointment moot.
The court’s ruling in Marbury asserted for the first time the federal judiciary’s power of judicial review, by which it has the power to strike down both laws passed by Congress and executive actions undertaken by the president if it deems them unconstitutional. At the time, this ruling was controversial for boosting the power of the courts. Today, more than two centuries since Marbury, judicial review has become an accepted part of the American system of checks and balances.
Although judicial review is widely regarded as the proper role of the federal judiciary today, specific instances of it often spark controversy. Critics often accuse courts of engaging in judicial activism when they go beyond a strict interpretation of the law. Their concern is that activist judges are in effect “legislating from the bench,” usurping Congress’s rightful role as lawmakers and stretching constitutional and statutory language far beyond what it was originally intended to mean. Conversely, proponents of giving judges wide latitude to interpret the law argue that it is important to have a “living constitution” that adapts to societal and technological change without needing to be amended. Such adaption, the argument goes, sometimes necessitates loose and creative interpretation of legal language.
Accusations of judicial activism tend to crop up when the accuser is displeased with a court’s decision, whether or not that decision actually represents a departure from the meaning of the text. As with executive power, Americans tend to be much more forgiving of questionable uses of judicial power when the outcome is one they like.
A statue of Chief Justice John Marshall, whose decision in Marbury v. Madison greatly increased the Supreme Court’s power, watches over Washington, D.C.’s Judiciary Square.
Supreme Court Decision-Making
The first decision the Supreme Court makes in a case is whether to hear it. Each year, thousands of petitions are submitted to the Supreme Court, either proposing new cases or requesting that a lower court’s decision be reviewed. Only about one percent of these petitions are accepted by the court, which does so by issuing a writ of certiorari (Latin for “to be made certain”) agreeing to consider the case. For the Supreme Court to issue a writ of certiorari, at least four justices must support hearing the case. When choosing whether to “grant cert,” the Supreme Court tends to prioritize cases which are more controversial and have more significant implications for constitutional or statutory law.
Once a writ of certiorari is issued for a case, the Supreme Court schedules oral arguments, during which lawyers representing the petitioner (the side which submitted the petition) and the respondent (the other side) present the facts of the case as they see them and attempt to persuade the justices. Oral arguments are open to members of the public and audio-recorded, but video recordings of Supreme Court proceedings are prohibited. Justices may interrupt the lawyers during their oral arguments to ask questions, which are often carefully scrutinized by legal experts for clues about which side of the case the justices are leaning toward.
After oral arguments, the justices confer and determine which side has won the case by a simple majority vote. Most decisions are not made public immediately; instead, the court designates several days in June when rulings will be issued. The justices spend the interim period drafting opinions stating which side of the case they agree with and why. The majority opinion, written by one of the justices who voted for the winning side, represents the official statement of the court’s opinion in the case. Other justices who supported the winning side may “join” with the majority opinion if they agree with its reasoning or write their own concurring opinion, or concurrence, if they agree with the majority opinion but wish to express additional or different reasons for doing so. Any justice who voted for the losing side may author a dissenting opinion, or dissent, expressing their disagreement and the reasons for it, and other justices can join a dissent or write their own dissents as they see fit.
The majority opinion in a Supreme Court case becomes a precedent, which carries the force of law unless and until it is overturned. Both oral arguments and opinions by the justices make frequent reference to precedents set in previous cases which relate to the case at hand. This reflects the doctrine of stare decisis (Latin for “to stand by decisions”), which maintains that the court’s decisions should be guided by precedent. Stare decisis does not mean that precedents cannot or should not be overturned, only that the court tends to abide by precedent when applicable. When the court does overturn one of its precedents, the majority opinion will take pains to describe what errors were made when the precedent was set that justify its overturning.
Judicial Appointments
At the state level, procedures for filling courts’ benches vary as a consequence of federalism. Some states assign their governors or legislatures the responsibility of nominating judges, whereas others allow citizens to choose their own judges through either partisan or nonpartisan elections. For federal courts, all judges, including those on district and appellate courts as well as the Supreme Court, are nominated by the president and subsequently confirmed by the Senate. This procedure is outlined in Article II of the Constitution, which specifies that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint...Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for....”
The process of nominating a district court judge, appellate court judge, or Supreme Court justice begins when a vacancy opens a court. This can occur when a new court or seat on a court is created by an act of Congress, but most commonly it happens when a sitting judge or justice dies, retires, is impeached and removed from office, or is promoted to fill a vacancy on a higher court. Once a seat is opened, the president nominates someone (usually a judge or other person with extensive legal experience) to fill it. The nominee is first submitted to the Senate Judiciary Committee for review, during which he or she may be called to testify before the committee. If the committee approves of the nomination, the whole Senate then debates and votes. If a majority of Senators vote in favor of the nominee, he or she is sworn in and fills the vacancy.
Since the 1980s, judicial nominations, especially Supreme Court nominations, have increasingly become fiercely partisan battles. Supreme Court nominees such as Robert Bork, Clarence Thomas, and Brett Kavanaugh — all nominated by Republican presidents — were subjected to hostile and withering Senate Judiciary Committee hearings, each time with most of the furor coming from Democratic senators. (Thomas and Kavanaugh were eventually confirmed to the Supreme Court; Bork was not.) The polarization of the parties in Congress has contributed to this conflict, as shown in Figure 14.2 below. Whereas in the past Supreme Court nominees could usually count on the votes of senators from both parties, recent confirmations have been entirely or almost entirely supported by members of the president’s party.
Figure 14.2: Supreme Court confirmation votes, 1987–2022 (Source: U.S. Senate)
Polarization has even led Congress to change the rules of the judicial confirmation process. During Barack Obama’s presidency, Senate Republicans used the filibuster to block a series of lower-court nominees for partisan reasons, driving Senate Democrats (who controlled the chamber at the time) to lower the threshold for cloture from 60 votes to 51 for district and appellate court nominations. Obama’s third Supreme Court nominee, Merrick Garland, was blocked by a Republican-controlled Senate which refused to even hold hearings on his nomination, preferring to gamble that a Republican victory in the 2016 presidential election would result in a more conservative judge being nominated. When this gamble paid off, embittered Democrats closed ranks to filibuster Donald Trump’s first Supreme Court nominee, Neil Gorsuch, leading Senate Republicans to lower the cloture threshold for Supreme Court nominations to 51 votes as well.
The contentiousness of Supreme Court nominations stems from the power wielded by the court. Federal judges serve life terms unless resignation, impeachment, or promotion foreshortens their service. A president can therefore impact American politics long after his time in office comes to an end by installing one or more Supreme Court justices who will interpret the laws in a way favorable to his policy desires for many years. The stakes are high: Supreme Court decisions in recent decades have decided the result of a close presidential election (Bush v. Gore), enabled an explosion of super PACs and campaign spending (Citizens United v. FEC), prohibited states from banning same-sex marriage (Obergefell v. Hodges), and allowed states to ban abortion (Dobbs v. Jackson Women’s Health Organization).
The Politicized Court
The Founders saw the federal judiciary as a critical piece of the new political machine they were building. Someone or something needed to interpret the Constitution and other laws when discrepancies arose, as well as to adjudicate disputes between states like those that once threatened to tear the Union asunder. In a sense, the courts would be the part of the machine whose job it was to read the fine print of the machine’s own user’s manual and ensure it was being used correctly.
At its inception, the federal judiciary was rather unformed and ill-defined compared to the other branches. Two-hundred-plus years of jurisprudence later, it has increased its power and influence, and both the other branches and the citizenry have taken notice. Witness, for example, how politicians, citizens, and the media circle the Supreme Court like vultures, closely monitoring the health of whichever Supreme Court justice happens to be the eldest or most infirm, or how, when a justice dies, Democrats and Republicans ravenously leap to battle over his or her replacement almost before the body turns cold.
These actions, while grim and distasteful to many, make sense from a coldly strategic perspective. The opportunity to fill a Supreme Court seat is among the most cherished prizes a president can receive in terms of its potential to cement his legacy. On a range of issues, from abortion and same-sex marriage to campaign finance and healthcare, interest groups and policy advocates often regard the judicial branch as one of the quickest and surest paths to policy change — and recent history suggests they’re not entirely wrong to think this way. Though still officially nonpartisan and nominally impartial, the federal court system is increasingly viewed by politicians and the public through a partisan, political lens.
The manner in which America’s attention is frequently trained on the judiciary is in some ways unsettling. In a nation that prides itself on its democratic institutions, major policy changes have in recent years been promulgated by the least democratic of the three branches: a panel of nine unelected men and women with law degrees from elite universities, lifetime appointments, and little to no accountability (either to politicians or to citizens) for their decisions. The courts may, to borrow Hamilton’s terminology, still lack the advantages of the sword and the purse, but even without these abilities they are nonetheless vested with immense power — and wherever power is present, so too is politics.
