“Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” (Alexis de Tocqueville, Democracy in America, 1840)
Figure \(\PageIndex{1}\):The Supreme Court is an institution that is unaccountable to voters yet has the final word on our most important and controversial issues. (Image Credit: Joe Ravi, via Wikimedia Commons, CC BY-SA 3.0)
Imagine a group of nine unelected officials overturning a law passed by Congress and signed by the President—yet their word is final. No tanks, no police, no protests. Just obedience. This is the strange and remarkable power of the U.S. Supreme Court. It doesn’t command an army or control a budget. It relies entirely on the public’s acceptance of its legitimacy.
Justice Stephen Breyer once recounted a moment that captured this mystery. During a visit to the U.S. Supreme Court, the Chief Justice of Ghana asked him: “Why does the American public do what the Supreme Court says?”
Today, that question is more urgent than ever. As Americans grow increasingly divided over the role of the courts—on issues from abortion to voting rights to presidential power—many no longer see the judiciary as an impartial arbiter. Some view it as just another political institution. And yet, the courts continue to shape American life in profound and lasting ways.
How did this branch of government come to wield such influence? Why do its rulings matter, and will the public continue to accept them? These are some of the questions this chapter will explore.
Ironically, part of what makes American democracy resilient is its incorporation of undemocratic features, chief among them, the federal judiciary. The Supreme Court, as the highest court in the land, wields immense power. Its decisions are final and binding, often affecting the most personal aspects of individual lives. In recent decades, the Court has ruled on issues including abortion access, marriage equality, consensual sexual conduct, mandatory pledges of allegiance, capital punishment, religious freedoms, and even the right to physician-assisted death.
What sets the federal judiciary apart is its ability to overturn the will of the majority, as expressed through elected legislatures. This gives the courts extraordinary power, yet they operate largely independently of the public. Justices are not elected, and there is no direct way for citizens to influence or even observe the decision-making process of the Supreme Court. In a democracy, how can such sweeping authority be exercised in secrecy and without direct accountability?
This paradox is not a flaw but a feature. The judiciary was designed to function as a counter-majoritarian institution, serving as a check on the excesses of popular rule. The Constitution, grounded in the principle of popular sovereignty, aims to protect the rights of individuals, even when those rights are unpopular. The Framers sought to prevent any person or institution from consolidating too much power. Yet, notably, the Constitution does not explicitly assign the power of constitutional interpretation to any one branch of government.
How, then, did the Supreme Court come to assume the role of constitutional guardian? The answer involves a fascinating episode in U.S. history—one that will be explored in the next section.
Judicial Review
In order to understand how the Supreme Court works today we must, once again, go back to the founding of our political system. George Washington, the first president of the United States, was also arguably the most popular president in the history of the United States. This popular mandate allowed Washington to govern with very little opposition but tensions within his administration soon gave rise to competing political factions. These divisions hardened after he left office.
Figure \(\PageIndex{1}\):John Adams (1735-1826), second President of the United States, helped set the stage for Marbury v. Madison(1803) through his “midnight appointments,” including the last-minute judicial commissions that led Chief Justice John Marshall to establish the principle of judicial review. (Image Credit: Bureau of Engraving and Printing, via Wikimedia Commons, Public Domain)
John Adams, Washington’s successor and the second president, led the Federalist faction. The Federalists represented commercial and urban interests and favored a strong central government. They believed that the new nation’s economic and diplomatic potential could be best realized through a unified national authority. In opposition were the Democratic-Republicans, led by Thomas Jefferson. This faction championed small farmers and artisans and felt that the interests of these groups could best be represented by state governments which were “closer” to the people.
During Adams’s presidency, the U.S. entered an undeclared naval conflict with France, known as the Quasi-War, which deepened partisan divisions. Citing national security concerns, the Federalist-controlled government passed the Alien and Sedition Acts, which, among other provisions, made it illegal to criticize the federal government. These laws clearly conflicted with the First Amendment and became a major political liability for Adams and the Federalists in the election of 1800. While Democratic-Republican newspapers were largely silenced under the Sedition Act, the party successfully portrayed the Federalists as enemies of civil liberties.
At the time, electors cast two undifferentiated votes for president, with the runner-up becoming vice president. In the 1800 election, this system backfired: Jefferson and his running mate, Aaron Burr, each received 73 electoral votes, while Adams received 65. Because no candidate had a majority, the election was decided in the House of Representatives. After 36 ballots, Jefferson was selected as president, with Burr as vice president. This deadlock prompted the ratification of the 12th Amendment in 1804, which required electors to cast separate votes for president and vice president.
Although the 1800 election marked one of the first peaceful transfers of power between rival political factions, it was not without controversy. In the final weeks of his presidency, Adams sought to preserve Federalist influence by appointing allies to the federal judiciary, the only branch still under Federalist control. Among these appointments was John Marshall, Adams’s Secretary of State, whom he named Chief Justice of the Supreme Court. Another was William Marbury, appointed Justice of the Peace for the District of Columbia. However, not all commissions were delivered before Jefferson took office. When the new administration refused to issue Marbury’s commission, he sued, asking the Supreme Court to compel Jefferson’s new Secretary of State, James Madison, to deliver it. This type of court order is called a writ of mandamus.
Figure \(\PageIndex{1}\):Chief Justice John Marshall (1801–1835). Appointed by President John Adams, Marshall authored the landmark decision in Marbury v. Madison(1803), establishing the principle of judicial review and cementing the Supreme Court’s role as a coequal branch of government. (Image Credit: Library of Virginia, via Wikimedia Commons, Public Domain)
The resulting case, Marbury v. Madison (1803), placed the Court in a delicate position. If the Court sided with Marbury and issued the writ, Jefferson would likely ignore it, making the judiciary appear weak. But if the Court sided with Jefferson, it could appear subservient to the executive, undermining its independence. In a masterful decision, Chief Justice Marshall ruled that while Marbury had a right to his commission, the Court could not enforce it. Why? Because the law that granted the Court the power to issue writs of mandamus, the Judiciary Act of 1789, was found to exceed the constitutional limits of judicial authority under Article III. Therefore, the law was declared unconstitutional.
In one stroke, Marshall avoided a political showdown while establishing the principle of judicial review—the power of the Supreme Court to strike down laws or actions that conflict with the Constitution. Though Jefferson won the immediate dispute (Marbury never got his commission), he lost the larger battle. The decision dramatically expanded the Court’s role in American government and aligned with the Federalist vision of a strong, independent judiciary.
Judicial review remains one of the most important powers of the Supreme Court. It enables the Court to interpret the Constitution and determine the validity of acts by Congress and the president. Because the Constitution, as discussed in earlier chapters, is often vague or broadly worded, the Court’s interpretations can have wide-reaching effects. With Marbury v. Madison, the Supreme Court cemented its role as a coequal branch of government, capable of checking both the legislative and executive branches and safeguarding constitutional principles.
The Rise of Judicial Power and the Role of Judicial Review
Even though the Constitution does not explicitly mention judicial review, many of the Framers likely expected that the Supreme Court would serve as a guardian of the Constitution, shielding it from the shifting winds of public opinion. Federal judges take an oath to uphold the Constitution and are presumed to have the legal training and independence necessary to carry out that responsibility. Still, not everyone trusted the new federal judiciary. Many Anti-Federalists feared the courts would become an unelected, unaccountable branch with too much influence. Alexander Hamilton, writing in Federalist No. 78, sought to calm these concerns by declaring that the judiciary would be “the least dangerous to the political rights of the Constitution.” Without control over the military or the budget, Hamilton argued, the Court lacked the power to threaten the authority of the other branches.
However, with the landmark ruling in Marbury v. Madison (1803), the Supreme Court under Chief Justice John Marshall asserted the power of judicial review, the authority to declare laws unconstitutional. In doing so, the Court claimed a powerful role in the American system of checks and balances, confirming some of the Anti-Federalists’ fears about an empowered judiciary.
Figure \(\PageIndex{1}\): In Marbury v. Madison (1803), Chief Justice John Marshall established the principle of judicial review, empowering the Supreme Court to declare laws unconstitutional and solidifying the judiciary’s role within the system of checks and balances, a development that confirmed some Anti-Federalist fears about a powerful national court. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
Despite those early concerns, judicial review is a cornerstone of American constitutional democracy. A functioning democracy requires that political power be constrained by a higher law—the Constitution. Without an independent body to enforce these constraints, there would be little to prevent elected officials from violating constitutional principles, as exemplified by the controversial Alien and Sedition Acts passed during the Adams administration.
As Marshall famously explained in the Marbury decision:
“The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts... If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law.”
Judicial review allows the Court to strike down laws or executive actions that conflict with the Constitution, even if those actions have majority support. This means the judiciary often stands apart from public opinion, precisely because its primary duty is to uphold constitutional principles, including those that protect minority rights. Federal judges are not elected and are insulated from political pressure to ensure they can protect fundamental liberties, especially those enshrined in the Bill of Rights. The courts help ensure that all political debates and decisions occur within the constitutional framework.
Following Marbury, the Marshall Court continued to issue decisions that strengthened the authority of the national government over the states. Because these decisions generally aligned with the interests of federal leaders, there was relatively little conflict between the Court and the other branches of government during this period. The Court also played a central role in protecting property rights and promoting national economic development.
Two additional landmark rulings from the Marshall Court further cemented federal supremacy:
In McCulloch v. Maryland (1819), the Court invalidated a Maryland law that taxed the federally chartered Bank of the United States. Marshall’s opinion affirmed that the federal government had implied powers under the “necessary and proper” clause of Article I, Section 8. This interpretation gave Congress flexibility to take actions not explicitly listed in the Constitution, so long as they served legitimate constitutional ends.
In Gibbons v. Ogden (1824), the Court expanded federal authority again by interpreting the “interstate commerce” clause of Article I, Section 8 to mean that only the federal government—not the states—could regulate interstate trade. This decision reinforced national control over the growing U.S. economy.
Through these rulings, the Marshall Court shaped the judiciary into a coequal branch of government, while laying the foundation for a strong, centralized national government. The principle of judicial review remains one of the most powerful and controversial tools in American constitutional law.
The Taney Court and the Dred Scott Decision
After John Marshall’s death in 1835, President Andrew Jackson appointed Roger B. Taney as Chief Justice of the Supreme Court. While the Taney Court generally continued to support capitalist development, Taney departed from Marshall’s strong nationalist approach and was more sympathetic to the principle of states’ rights. This shift reflected the growing sectional tensions of the era, particularly over the issue of slavery.
Figure \(\PageIndex{1}\):Chief Justice Roger B. Taney and Dred Scott. In Dred Scott v. Sandford (1857), the Supreme Court, led by Chief Justice Taney, ruled that African Americans were not citizens and that Congress lacked authority to restrict slavery in the territories. The decision denied Scott’s claim to freedom and intensified sectional tensions, becoming one of the most controversial rulings in Supreme Court history. (Image Credit: Left: Roger B. Taney, Library of Congress, via Wikimedia Commons, Public Domain; Right: Dred Scott, Missouri History Museum, via Wikimedia Commons, Public Domain)
The most infamous decision of the Taney Court, and one of the most consequential in American history, was Dred Scott v. Sandford (1857). Dred Scott was an enslaved man who had been taken by his enslaver into the free state of Illinois and the free territory of Wisconsin. Scott sued for his freedom, arguing that because he had lived in free territory, he should be considered legally free.
At the time, the country was deeply divided over slavery, and the political climate was growing increasingly volatile. Southern leaders were increasingly hostile toward any federal actions perceived as limiting the expansion of slavery. Against this backdrop, Chief Justice Taney issued a sweeping opinion that aimed to resolve the national debate, but instead exacerbated it.
Writing for the majority, Taney ruled that African Americans, whether enslaved or free, could not be considered citizens of the United States and therefore had no legal standing to bring a case in federal court. He wrote that Black people were “beings of an inferior order” who “had no rights which the white man was bound to respect”, a statement that shocked and outraged many Americans then and continues to be recognized as one of the most openly racist assertions in Supreme Court history.
Taney’s ruling went even further. He declared the Missouri Compromise—Congress’s attempt to maintain a balance between free and slave states—unconstitutional, arguing that Congress lacked the authority to prohibit slavery in U.S. territories. This effectively opened all western territories to slavery, nullifying decades of legislative compromise.
Taney had hoped the decision would settle the slavery issue and reduce sectional tensions. Instead, it had the opposite effect. The South was emboldened, while the North was outraged. Abolitionists and many in the Republican Party, including Abraham Lincoln, denounced the decision as morally and constitutionally indefensible. Rather than calming the national conflict, Dred Scott inflamed it, further polarizing the country and accelerating the march toward the Civil War.
The Dred Scott decision dealt a severe blow to the legitimacy of the Supreme Court, undermining the institution’s credibility and reinforcing fears that it had become an instrument of pro-slavery interests. It remains one of the most widely condemned decisions in American constitutional history and is often cited as a cautionary tale about the dangers of judicial overreach and moral failure.
Judicial Decision Making
Judicial Activism and Restraint
As Alexis de Tocqueville observed in Democracy in America, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” This insight is especially relevant when courts are asked to decide some of the most controversial and complex political issues—whether involving the rights of criminal defendants, the balance between individual liberty and government power, or the protection of minority rights against majority will.
When confronting such issues, the courts face an enduring question: Should judges actively use their power of judicial review to resolve contentious political matters that elected officials are either unable or unwilling to address? Or should they limit their role, deferring to the decisions of the legislative and executive branches unless a law clearly violates the Constitution?
These contrasting approaches are known as judicial activism and judicial restraint.
Judicial Activism
Judicial activism is the belief that courts should play an assertive role in enforcing constitutional principles, particularly when other branches of government fail to act. Advocates argue that the judiciary must serve as a check on majoritarian politics, especially in cases where legislation may infringe upon individual rights or fail to protect politically marginalized groups. Judges, in this view, should not hesitate to strike down laws or policies that violate constitutional values—even if doing so means creating new legal doctrines or extending existing ones.
For example, elected officials may avoid taking strong positions on controversial topics such as abortion, voting rights, or criminal justice reform due to political risk or gridlock. In these situations, the judiciary may become the only institution capable of delivering clarity and justice consistent with constitutional ideals.
One of the most prominent examples of judicial activism was the Warren Court (1953–1969), led by Chief Justice Earl Warren. This Court issued landmark decisions that reshaped American life, including Brown v. Board of Education (1954), which declared racial segregation in public schools unconstitutional; Miranda v. Arizona (1966), which established rights for criminal defendants; and Griswold v. Connecticut (1965), which expanded the right to privacy—paving the way for later rulings such as Roe v. Wade (1973).
Figure \(\PageIndex{1}\):Chief Justice Earl Warren (1953–1969). Under Warren’s leadership, the Supreme Court issued landmark rulings that expanded civil rights and civil liberties, including Brown v. Board of Education (1954), Miranda v. Arizona (1966), and Griswold v. Connecticut (1965), reshaping the constitutional landscape of modern America. (Image Credit: Harris & Ewing photography firm, via Wikimedia Commons, Public Domain)
Because of this legacy, judicial activism is often associated with liberal rulings. However, activism is not inherently tied to one political ideology. A court is considered activist not based on whether its decisions are liberal or conservative, but based on its willingness to overturn laws or overrule precedents and reshape public policy.
The Rehnquist Court (1986–2005), for instance, engaged in conservative judicial activism by limiting the power of Congress through its interpretation of the Commerce Clause and by expanding the idea of state sovereign immunity, shielding states from certain federal lawsuits. These rulings reflected a broader conservative vision of federalism and constitutional limits on national authority.
Implementation and Limitations
Though the judiciary can issue powerful rulings, it lacks direct enforcement power and must rely on the executive and legislative branches for implementation. History provides examples of both cooperation and resistance. When the Supreme Court ruled in Brown v. Board of Education that school segregation was unconstitutional, resistance in Southern states slowed compliance. It took President Dwight D. Eisenhower’s intervention, sending federal troops to enforce integration at Little Rock High School in 1957, to uphold the Court’s decision.
At other times, political leaders have openly resisted judicial authority. President Andrew Jackson, reportedly responding to a Supreme Court decision he disagreed with, is said to have remarked, “John Marshall has made his decision; now let him enforce it.” Such episodes underscore the judiciary’s dependence on the other branches and the limits of judicial power.
Judicial Restraint
In contrast to judicial activism, judicial restraint holds that courts should avoid making policy and instead limit themselves to interpreting the law narrowly and deferring to the decisions of the legislative and executive branches. According to this philosophy, because Congress and the President are elected by the people, they are best suited to reflect the popular will. The judiciary, which is unelected and enjoys lifetime tenure, should therefore be cautious in overturning democratically enacted laws.
Proponents of judicial restraint argue that judges should avoid “legislating from the bench” and should not substitute their preferences for those of elected officials or trained policy experts. The courts, in this view, should only strike down laws that clearly violate the Constitution.
However, critics argue that too much restraint can enable injustice. They contend that deference to elected officials often means deferring to the interests of powerful or well-organized groups who can dominate the political process. These critics point out that minorities, the poor, and politically unpopular groups often lack the influence necessary to protect their rights through legislation. Judicial restraint, then, can lead to the neglect of constitutional principles and leave vulnerable groups without meaningful recourse.
Figure \(\PageIndex{1}\):March on Washington for Jobs and Freedom, 1963. Civil rights activists gather in Washington, D.C., demanding equal protection, voting rights, and an end to racial discrimination. For many reformers, moments like this illustrated why courts sometimes intervene to protect minority rights when the political process fails to do so. (Image Credit: Marion S. Trikosko, via Wikimedia Commons, Public Domain)
One of the primary advantages of judicial independence—life tenure and insulation from public opinion—is precisely to empower judges to defend constitutional rights even when doing so is unpopular. In this way, the judiciary serves as a guardian of the Constitution and the rule of law, ensuring that justice is not merely subject to the shifting winds of political opinion.
Open to Debate:
Original Intent vs. Living Constitution
By what standard should judges determine what is and is not constitutional? Should they interpret the Constitution through the lens of contemporary social values, or should they attempt to understand it as the Framers would have in the eighteenth century? This debate lies at the heart of American constitutional interpretation and remains open to debate.
One approach is known as the doctrine of original intent. According to this philosophy, judges should strive to interpret the Constitution based on the intentions of its Framers. Advocates of original intent argue that the best way to preserve constitutional government is to adhere as closely as possible to the meanings and values held by those who drafted the document. To discern these intentions, judges might consult historical records such as debates from the Constitutional Convention, the Federalist Papers, or the personal writings of the Founders. In this view, the judiciary should not invent new meanings for constitutional provisions, as doing so undermines the rule of law and turns judges into unelected policymakers.
Figure \(\PageIndex{1}\): The Constitutional Convention of 1787. Debates among the Framers over the design of the new government produced the Constitution that judges continue to interpret today. Supporters of original intent argue that courts should look to the Founders’ debates and writings to understand the document’s meaning, while advocates of a living Constitution contend that its broad principles must evolve as society changes. (Image Credit: Junius Brutus Stearns, painter, via Wikimedia Commons, Public Domain)
By contrast, Critics of original intent argue that this approach is both impractical and potentially regressive. They point out that many modern constitutional issues—such as digital privacy, reproductive rights, or campaign finance—could not have been anticipated by eighteenth-century thinkers. Furthermore, they argue that the Framers deliberately wrote the Constitution in broad, flexible language so that it could adapt to unforeseen changes in society and technology. According to this perspective, the Constitution is a living document, and it is the role of judges to interpret its principles in light of evolving social norms and contemporary understandings of justice and equality.
The debate is not just about legal theory; it reflects differing views on the role of the judiciary in shaping public policy. Supporters of original intent often warn that straying from the Framers' design risks eroding the limits on government power and allowing judges to impose their personal views under the guise of interpretation. On the other hand, critics argue that clinging rigidly to original meanings can freeze constitutional rights in the past and prevent the law from responding to the needs of an increasingly diverse and complex society.
Ultimately, this debate over constitutional interpretation invites a deeper question: Should the Constitution be understood as a fixed framework rooted in the past, or as a living guide that evolves with the nation? The answer remains open to debate.
Objectivity and Partisanship
While the judicial nomination process is increasingly shaped by partisan politics, justices are expected to act as impartial arbiters of the law once confirmed. Although Supreme Court Justices strive for neutrality, their experiences and beliefs inevitably influence how they interpret the Constitution. Justice Felix Frankfurter, a prominent mid-20th century jurist, once reflected on this reality:
“The meaning of ‘due process’ and the content of terms like ‘liberty’ are not revealed by the Constitution. It is the Justices who make the meaning. They read into the neutral language of the Constitution their own economic and social views… Let us face the fact that five Justices of the Supreme Court are the molders of policy rather than the impersonal vehicles of revealed truth.”
This perspective highlights a fundamental tension: judges must apply abstract constitutional principles to real-world disputes, and their worldviews inevitably shape interpretation.
Figure \(\PageIndex{1}\):Justice Felix Frankfurter (1939–1962). A prominent legal scholar and Supreme Court justice, Frankfurter acknowledged that constitutional interpretation is shaped by the perspectives of those who apply it, highlighting the enduring tension between judicial objectivity and the influence of personal beliefs in constitutional decision-making. (Image Credit: Harris & Ewing, via Wikimedia Commons, Public Domain)
Nevertheless, the aspiration toward objectivity is central to judicial legitimacy. Unlike members of Congress or the President, federal judges are not elected. Their authority does not come from popular support but from legal expertise, the principle of judicial independence, and the expectation of consistent application of the law. Lifetime appointments are designed to insulate judges from political pressure.
Courtroom procedures reinforce this ideal. Judicial proceedings are highly formalized, and judges preside from elevated benches wearing robes—symbolic gestures intended to set them apart from the parties before them and underscore their neutrality. Even though lawyers seeking judicial appointments may initially engage in politics to gain the attention of a nominating authority, once appointed, judges are expected to leave partisan politics behind.
In recent years, some observers have debated whether greater demographic diversity on the Court affects judicial decision-making. While justices strive for impartiality, their backgrounds can bring different perspectives to complex constitutional questions. As of this writing, the Supreme Court includes justices of varied racial, ethnic, and religious backgrounds. Such diversity may broaden the range of perspectives informing legal reasoning.
Figure \(\PageIndex{1}\):The Supreme Court as composed March 2026. The nine justices of the nation’s highest court bring diverse professional experiences and personal backgrounds to their work, reflecting ongoing discussions about how demographic diversity and life experience may shape perspectives in constitutional interpretation. (Image Credit: Fred Schilling, Collection of the Supreme Court of the United States, via Wikimedia Commons, Public Domain)
Ultimately, while no justice is completely free from personal influence, the structure and culture of the judiciary are designed to prioritize fairness, consistency, and fidelity to the Constitution. The Court’s legitimacy depends not on the absence of beliefs, but on the commitment to rise above them in service of the law.
Open to Debate: Bush v. Gore (2000)
The appearance of judicial neutrality in the Supreme Court was seriously questioned following its controversial intervention in the 2000 presidential election. In Bush v. Gore (2000), the Court ruled 5–4 to halt Florida’s manual recount of ballots, arguing that varying standards across counties violated the Equal Protection Clause of the Fourteenth Amendment.
The decision was widely criticized in the legal community. Many believed the justices in the majority had abandoned core principles such
as judicial restraint, federalism, and respect for precedent in order to settle a political dispute. Critics noted that the Court chose not to address deeper equal protection issues, such as unequal voting technology across counties and the wrongful purging of tens of thousands of eligible voters from Florida’s voting rolls due to flawed felony lists, disproportionately impacting African American voters who tended to vote Democratic.
The narrow 5–4 decision, with the Court’s most conservative justices in the majority, further raised concerns about partisanship. While the justices may have been motivated by a desire to resolve a national crisis and ensure electoral stability, the ruling gave the appearance of political bias and damaged the Court’s reputation for impartiality.
This case raises lasting questions: Can the Court remain above politics? What role should it play in deciding elections? Did the ruling uphold the rule of law—or undermine it? The answers remain open to debate.
Structure of the Federal Judicial System
The U.S. Constitution establishes only one court by name: the Supreme Court. Article III, Section 1 declares, “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.” This deliberate vagueness reflects the political compromise necessary to ratify the Constitution. Federalists advocated for a strong national judiciary, while Anti-Federalists feared a powerful centralized court system that might infringe on state authority. To strike a balance, the Framers left the details of the judicial system to Congress.
Congress first addressed the structure of the judiciary through the Judiciary Act of 1789, which created a three-tiered federal court system that still exists today. At the base are the U.S. District Courts, which serve as the federal trial courts. Above them are the U.S. Courts of Appeals, which review decisions from the district courts. At the top sits the U.S. Supreme Court, the highest court in the nation. While most federal cases move through this hierarchical structure, the federal judiciary also includes several specialized courts that handle particular categories of cases defined by federal law.
Figure \(\PageIndex{1}\): The federal judiciary operates through a three-tiered system established by the Judiciary Act of 1789. Most cases begin in the U.S. District Courts, may be appealed to the U.S. Courts of Appeals, and in limited circumstances may reach the U.S. Supreme Court, the nation’s highest court. The arrows illustrate how a case can move upward through the federal court system as parties appeal decisions to higher courts. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
In addition to the federal courts, each state maintains its own system of trial and appellate courts. Together, these state and federal courts form the United States' dual court system, where both systems operate independently but often have overlapping jurisdiction.
District Courts
There are currently 94 U.S. District Courts, with at least one in every state, as well as in U.S. territories such as Puerto Rico, the U.S. Virgin Islands, Guam, and the Northern Mariana Islands. District courts are the primary trial courts of the federal judiciary and are the only federal courts where juries hear testimony and render verdicts. These courts have original jurisdiction, meaning they are the first to hear a case.
Federal district courts typically handle cases involving:
· The U.S. government as a party;
· Issues arising under the U.S. Constitution, federal laws, or treaties;
· Civil disputes between citizens of different states where the amount in controversy exceeds $75,000; and
· Other specific matters as defined by federal law.
Most federal cases begin and end in district courts, although their decisions can be appealed to the U.S. Courts of Appeals.
Special Courts
In addition to the district courts, the federal judiciary includes several specialized courts that focus on particular types of cases, such as claims against the federal government, international trade disputes, military justice, tax matters, bankruptcy, intelligence surveillance, and veterans’ benefits. These courts have limited jurisdiction, meaning they can hear only specific types of cases as defined by federal law.
Figure \(\PageIndex{1}\): In addition to the main trial and appellate courts, the federal judiciary includes a number of specialized courts that focus on particular areas of law—such as claims against the federal government, international trade disputes, military justice, tax matters, bankruptcy, foreign intelligence surveillance, and appeals involving veterans’ benefits. These courts handle highly specific cases requiring technical legal expertise. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
Courts of Appeals
The U.S. Courts of Appeals serve as the intermediate level of the federal judiciary. Their primary role is to review decisions from the district courts and correct errors of law or procedure. There are thirteen circuit courts, each covering a specific geographic area or circuit.
Appellate courts do not hold trials in the traditional sense. There are no juries, hear no new evidence and take no witness testimony. Instead, a panel of three judges review the record of the lower court’s proceedings and considers written arguments, known as briefs, submitted by the parties. In most cases, attorneys also present brief oral arguments. Occasionally, particularly significant or controversial cases may be heard en banc, meaning by all the judges of the circuit.
The Supreme Court
At the top of the federal judicial system is the U.S. Supreme Court. While the Court does have original jurisdiction in rare cases—such as those involving foreign diplomats or disputes between states—its primary function is to act as the final appellate court.
The Supreme Court hears appeals from both federal courts of appeals and, when a federal question is involved, from state supreme courts. Like other appellate courts, the Supreme Court reviews written briefs and the record of lower court proceedings. It also receives amicus curiae (“friends of the court”) briefs from third parties offering additional perspectives.
The Appeals Process
Despite cinematic promises to sue someone “all the way to the Supreme Court,” there is no automatic right to appeal in the United States. In the U.S. legal system, appeals are granted at the discretion of appellate courts.
The formal appeal process begins when the losing party in a case files a petition for a writ of certiorari (Latin for “to be informed of”) with an appellate court. If the appellate judges believe there may have been a legal or procedural error in the lower court's decision, they may issue the “cert writ” and request the case record for review. If the petition is denied, the lower court’s ruling stands. Most appeals are first heard by one of the U.S. Courts of Appeals. From there, a case may be appealed to the Supreme Court, but only if it involves a substantial federal question. The Supreme Court may also review decisions from state courts, but again, only when a federal issue is at stake, such as an alleged violation of the U.S. Constitution.
The Supreme Court receives thousands of certiorari petitions (or “cert petitions”) each year but agrees to hear only about 70 to 80 cases. The Court's decision to hear a case is entirely discretionary. It typically grants certiorari when a case presents a significant constitutional issue, involves a matter of national importance, or is needed to resolve conflicting decisions from lower federal or state courts. This selective process is guided by the “rule of four”—the Court agrees to hear a case if at least four of the nine Justices vote in favor.
One important player in this process is the Solicitor General, the federal government's top lawyer before the Supreme Court. The Solicitor General can urge the Court to hear cases that are especially important to federal interests. Historically, the Supreme Court has agreed to review the majority of cases recommended by the Solicitor General.
Given the high volume of petitions, much of the initial screening is done by Supreme Court law clerks—elite recent graduates of top law schools who assist the Justices with legal research and case review. Each Justice is generally allowed to hire four law clerks for each term, and serving in this role is considered one of the most prestigious positions in the legal field.
Figure \(\PageIndex{1}\): Cases can reach the U.S. Supreme Court through either the state court system or the federal court system. Most cases begin in trial courts—state trial courts for disputes involving state law or U.S. District Courts for cases involving federal law—then move through intermediate appellate courts before potentially reaching the Supreme Court. The Court generally agrees to hear cases only when they raise significant constitutional questions or involve important issues of federal law. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
Criteria for Hearing a Case
Over time, the federal courts have developed criteria to determine whether a case is eligible to be heard:
Actual Controversy – Courts only decide real, not hypothetical, disputes. There must be two genuine adversarial parties. Courts do not issue advisory opinions or rule on laws that haven’t been applied.
Standing – The parties involved must have a direct, personal stake in the outcome. This means they must show that they have suffered or are likely to suffer a specific injury. In the 1960s and 1970s, the Supreme Court expanded the concept of standing to allow public interest groups to bring lawsuits against government agencies. For example, under the National Environmental Policy Act, environmental organizations may sue federal agencies whose actions negatively affect the environment.
Class Action Suits – In some cases, individuals may sue on behalf of a larger group (a “class”) with shared legal concerns. Class action lawsuits are often used when the harm is widespread but relatively small for each individual, such as in cases involving corporate misconduct or consumer rights.
Mootness – If the issue at the heart of a case has already been resolved or is no longer relevant, the case is considered moot and will not be heard. However, the Court may still consider a case if the issue is “capable of repetition yet evading review.” For instance, in Roe v. Wade (1973), the Court agreed to hear the case even though the pregnancy in question had already ended, recognizing that pregnancies are short-lived but the legal issue at stake was likely to recur.
Supreme Court Decision-Making and Judicial Opinions
During oral arguments before the U.S. Supreme Court, attorneys for each side have just 30 minutes to present their case. The Justices frequently interrupt with pointed and challenging questions, testing the legal reasoning and implications of each argument. These sessions are not designed to introduce new evidence but to clarify the legal issues and help the Justices evaluate the case's broader constitutional or statutory significance.
Figure \(\PageIndex{1}\): During oral arguments, attorneys present their legal arguments before the nine justices, who frequently interrupt with questions to probe the constitutional and legal implications of the case. These exchanges help the Court clarify key issues before reaching a decision. (Image Credit: William Hennessy for SCOTUSblog, Public Domain)
After oral arguments conclude, the Justices meet in a private conference to discuss the case and cast their initial votes. These sessions begin with a traditional handshake among the Justices, symbolizing collegiality despite potential disagreements. The Chief Justice leads the discussion, offering their view of the case, followed by each Justice speaking in order of seniority. The most junior Justice takes notes and serves as the conference’s informal clerk and doorkeeper.
Although the Justices are experts in constitutional law, disagreement is common. particularly in cases contentious enough to reach the Supreme Court. When a majority of the Justices agree both on the outcome and the reasoning, a majority opinion is written to explain the Court’s ruling. If the Chief Justice is in the majority, they either write the opinion themselves or assign the task to another Justice in the majority. If the Chief Justice is not in the majority, the most senior Justice in the majority assigns the opinion.
Once a draft opinion is circulated, Justices who agree with it add their names. However, opinions are often revised multiple times in response to feedback or to build consensus among the Justices. Even after the initial vote, a Justice may change their mind, joining or leaving the majority as the final version of the opinion takes shape.
Sometimes, a Justice agrees with the outcome of the case but not with the reasoning in the majority opinion. In such instances, they may write a concurring opinion to express their unique rationale or to highlight legal issues not emphasized in the majority view.
Conversely, Justices who disagree with the majority ruling may write dissenting opinions, outlining their objections to both the outcome and the reasoning of the majority. While dissents do not carry legal force, they can influence future cases and sometimes form the basis for overturning precedent in later decisions.
In some cases, the Court issues a plurality opinion, where a majority agrees on the outcome of the case but not on a single rationale. In such situations, the decision resolves the case at hand but does not set a binding precedent.
When the Court is in full agreement on both the outcome and its reasoning, it issues a unanimous opinion. These are often signed by all participating Justices, but in rare cases the Court may issue an unsigned, collective decision known as a per curiam opinion—literally, “by the Court.”
Regardless of the type of opinion, Supreme Court rulings are final. As Justice Robert H. Jackson famously remarked, “We are not final because we are infallible, but we are infallible only because we are final.”
Figure \(\PageIndex{1}\): The Court’s decisions are explained through written opinions that outline the legal reasoning behind a ruling. A majority opinion, such as the one shown here, establishes the Court’s official interpretation of the law and sets a binding precedent for lower courts to follow. (Image Credit: Supreme Court of the United States, Public Domain)
The Role of Precedent and Stare Decisis
Supreme Court decisions not only resolve individual disputes but also set legal precedents that guide future cases. Under the principle of stare decisis—Latin for “to stand by things decided”—lower courts are generally expected to follow precedents established by higher courts within their jurisdiction.
This doctrine, borrowed from English common law, promotes consistency and predictability in legal decision-making. However, because no two cases are exactly alike, applying precedent is not always straightforward. Courts must interpret whether the facts of a new case are sufficiently similar to warrant the same legal outcome.
Even when a case does not formally establish precedent, Supreme Court decisions often cast a long shadow, influencing how laws are interpreted and applied by lower courts, legislatures, and government agencies across the country. The authority of a precedent may also depend on factors such as the strength of the Court’s majority, the clarity of its reasoning, and the public and professional respect for the Justices who authored the decision.
In this way, the Supreme Court not only interprets the law, it shapes the legal landscape for generations to come.
The Size of the Supreme Court and the Court-Packing Debate
The U.S. Constitution does not specify the number of Supreme Court Justices. Congress has changed the size of the Court over time, ranging from five to ten Justices in the 19th century. Since 1869, the Court has consisted of nine Justices.
The most famous challenge to that number occurred in the 1930s. After the Supreme Court struck down several of President Franklin D. Roosevelt’s New Deal programs intended to combat the Great Depression, FDR proposed adding more Justices to the Court. His plan, widely seen as an attempt to shift the Court’s ideological balance, was strongly opposed, even by some in his own party, and ultimately failed. However, soon after, the Court began upholding key New Deal legislation, a shift sometimes described as “the switch in time that saved nine.”
Figure \(\PageIndex{1}\): In response to Supreme Court decisions striking down key New Deal programs, Roosevelt proposed expanding the number of justices on the Court—a plan critics labeled “court packing.” Although the proposal ultimately failed, the controversy highlighted tensions between the presidency and the judiciary and was followed by a shift in the Court’s willingness to uphold New Deal legislation. (Image Credit: Harris & Ewing Collection, Library of Congress, via Wikimedia Commons, Public Domain)
Debates over court expansion resurfaced during the 2020 election, after the appointment of Justice Amy Coney Barrett shifted the Court in a more conservative direction. Some Democrats proposed adding seats to restore ideological balance. President Biden declined to endorse such proposals and instead formed a commission to study possible reforms. Retiring Justice Stephen Breyer warned that expanding the Court for political reasons could damage its legitimacy as an independent branch of government.
Critics argue that “court packing” risks transforming the Supreme Court into a partisan tool of whichever party controls Congress and the presidency, undermining public trust in its role as a neutral interpreter of the law.
The Judicial Nomination Process
Federal judges, including Supreme Court Justices, are nominated by the President and confirmed by the Senate. The process begins with the President submitting a nominee to the Senate Judiciary Committee, which holds hearings to assess the nominee’s qualifications. If approved by the committee, the nomination moves to the full Senate for a vote. A tradition known as senatorial courtesy gives significant influence to senators from the President’s party in the state where a judicial vacancy occurs, especially for lower courts.
Figure \(\PageIndex{1}\): Federal judges, including Supreme Court justices, are nominated by the president and must be confirmed by the Senate. This shared responsibility reflects the Constitution’s system of checks and balances, requiring cooperation between the executive and legislative branches in shaping the federal judiciary. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
Because federal judges serve lifetime appointments, "during good behavior," according to the Constitution, their influence can extend well beyond the President’s term. Presidents often choose nominees who align with their legal and political philosophies, hoping to shape the judiciary for decades. However, judges sometimes surprise the presidents who appoint them. Justice Harry Blackmun, for example, appointed by President Nixon as a conservative, later authored the majority opinion in Roe v. Wade. Likewise, Justice Earl Warren, appointed by President Eisenhower, led a liberal transformation of the Court during the civil rights era.
Historically, judicial nominations focused on qualifications and legal experience. But since the mid-20th century, the process, especially for Supreme Court nominees, has become increasingly political. Contentious issues such as abortion, civil rights, and executive power have raised the stakes, as any one appointment can shift the ideological balance of the Court.
A turning point in this politicization was President Reagan’s 1987 nomination of Robert Bork. Despite his strong legal credentials, Bork’s originalist philosophy and controversial views led to a well-organized campaign against his confirmation, and the Senate ultimately rejected him. Reagan’s next nominee, Douglas Ginsburg, withdrew after reports surfaced that he had used marijuana in the past. Anthony Kennedy was eventually confirmed with broad support.
Partisan tensions increased further in the 1990s and 2000s. Under President Clinton, Senate Republicans stalled or refused to act on many judicial nominees. In response, Democrats later used the filibuster to block several of President George W. Bush’s nominees. These tactics resulted in significant delays and vacancies in the federal courts.
The controversy deepened in 2016 when President Obama nominated Merrick Garland to replace Justice Antonin Scalia. Senate Republicans, citing the upcoming election, refused to hold hearings or a vote, breaking with modern precedent. After Donald Trump won the presidency, he nominated Neil Gorsuch, who was confirmed by a Republican majority. Trump's subsequent nominees, Brett Kavanaugh and Amy Coney Barrett, further solidified a conservative majority on the Court.
In 2022, President Biden appointed Ketanji Brown Jackson to replace Justice Stephen Breyer. Her confirmation was historic, she became the first Black woman to serve on the Supreme Court, but also reflected ongoing partisan divides, passing 53–47 largely along party lines.
Why the Process Has Become More Partisan
Several developments in recent decades have contributed to the growing polarization of the judicial confirmation process.
Figure \(\PageIndex{1}\):The process of confirming federal judges has become increasingly contentious as ideological divisions between political parties deepen, Supreme Court decisions attract greater public attention, and media coverage and interest group activism mobilize supporters and critics. Legislative gridlock and limited public understanding of the judicial role have further contributed to viewing judicial nominations as major political battles over the direction of national policy. (Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
Several factors have fueled the growing polarization of the judicial confirmation process:
• Increasing ideological divisions between political parties
• Greater public attention to Supreme Court decisions on controversial issues such as abortion, gun rights, and health care
• Legislative gridlock, which has made the courts a more prominent venue for policymaking
• Media coverage and interest group activism, which mobilize public opinion and lobbying efforts
• Limited civic understanding of the judiciary, leading some Americans to view judges as political actors rather than neutral interpreters of the law.
As Justice Antonin Scalia once warned, relying on courts to settle policy disputes risks turning the judiciary into a "junior varsity Congress." The framers intended judges to interpret the Constitution, not to legislate from the bench. Yet in today’s hyper-partisan environment, every nomination is increasingly seen as a battle over the future direction of national policy.
Open to Debate: Dobbs v. Jackson Women’s Health Organization (2022)
In June 2022, the Supreme Court issued one of its most consequential rulings in decades with Dobbs v. Jackson Women’s Health Organization, overturning both Roe v. Wade (1973) and Planned Parenthood v. Casey (1992). In a 5-4 decision, the Court ruled that the Constitution does not guarantee a right to abortion and returned the authority to regulate abortion to the states and their elected officials. For conservatives, this marked a long-awaited victory for the pro-life movement. For liberals, it represented a significant setback for reproductive rights and women's health.
Figure \(\PageIndex{1}\): The Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization (2022) overturned Roe v. Wade and returned authority over abortion regulation to the states. The decision intensified national debate, with supporters celebrating the ruling and critics warning of new restrictions on reproductive rights.(Image Credit: Joseph Braunwarth via OpenAI, CC BY-NC-SA 4.0)
The Dobbs decision illustrates a dramatic shift in the Court’s approach to constitutional interpretation. In Roe, the Court had declared abortion a constitutional right grounded in the right to privacy, an idea not explicitly stated in the Constitution but inferred from several amendments. At the time, public opinion was relatively supportive of the ruling; a Gallup poll showed nearly two-thirds of Americans believed the decision should be left to a woman and her doctor. This alignment with public sentiment may have softened initial backlash but ultimately fueled decades of political division.
For decades,Roe remained a flashpoint in American politics. The religious right, gaining influence in the 1970s and 1980s, made overturningRoea central mission, while the political left worked to preserve and expand abortion rights. Critics have argued that Roe represented an example of judicial activism—resolving a
contentious issue through the courts instead of the legislative process. In doing so, the Court may have inadvertently politicized itself and intensified the struggle over judicial nominations.
In 1992, the Court revisited the issue in Planned Parenthood v. Casey. While it upheld the core holding of Roe, the decision emphasized the importance of preserving the Court’s legitimacy rather than relying solely on constitutional text. As the majority warned:
“A decision to overrule Roe’s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law.”
The Dobbs majority, however, rejected that logic. Rather than weighing public opinion or concerns about legitimacy, the Court focused on what it saw as correcting a constitutional overreach. The ruling did not ban abortion nationwide but left it to the states, some of which have since enacted strict abortion bans while others have expanded protections.
The Dobbs decision raises enduring questions about judicial power, democracy, and constitutional interpretation:
1.Should the Supreme Court consider public opinion when interpreting the Constitution, or remain entirely insulated from popular sentiment? What are the risks and benefits of each approach?
2.Has the judicial branch become too influential in shaping major public policies that might be better left to elected lawmakers? What does this suggest about the balance of power in the federal government?
3.Why do most Americans comply with Supreme Court rulings, even when they disagree with them? What role does legitimacy play in the power of the Court?
What do you think? The answers remain open to debate.
Conclusion: The Paradox of Judicial Power
The American judiciary is often called the “least dangerous branch,” but that label belies its immense influence. With the power to strike down laws and shape the boundaries of government action, the courts, especially the U.S. Supreme Court, play a vital and sometimes controversial role in American political life.
From the foundational rulings of the Marshall Court in Marbury v. Madison and McCulloch v. Maryland, to the divisive decision in Dred Scott v. Sandfordunder the Taney Court, and later the rights-expanding jurisprudence of the Warren Court, the judiciary has left an indelible mark on the nation’s constitutional landscape. At times, it has been an agent of change, protecting the rights of minorities and stepping in when the political branches have failed to act. At other times, it has reflected, or even reinforced, the dominant power structures of its era.
The courts’ power is derived not from enforcement mechanisms or political clout, but from legitimacy—the belief that judicial rulings are grounded in the Constitution and worthy of compliance. That legitimacy is under pressure today, as public confidence erodes and Americans increasingly view judges as political actors rather than neutral arbiters.
These tensions bring us to enduring debates: Should judges adhere strictly to the “original intent” of the Framers, or should they interpret the Constitution as a living document that adapts to modern realities? Should courts practice judicial restraint, deferring to the will of the elected branches, or judicial activism, stepping in when those branches fail to uphold constitutional principles?
Even as these questions persist, one fact remains: the judiciary plays a crucial role in maintaining the balance of power and protecting the rights enshrined in the Constitution. In a system defined by checks and balances, the courts are both a counterweight to majoritarian rule and a guardian of the rule of law.
Understanding how the judiciary works—its structure, philosophies, limitations, and strengths—is essential to understanding American government itself. After all, as Alexis de Tocqueville observed nearly two centuries ago, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” That observation is just as relevant today as it was in 1840.
Glossary
Alien and Sedition Acts: An act passed by the Adams administration which made it illegal for the press to criticize the government.
Appellate Courts: Otherwise known as Circuit Courts, these are federal courts that hear cases which have been appealed from the district courts.
Counter-Majoritarian: The idea that the Court should strike down popularly approved legislation if that legislation violates some part of the Constitution.
District Courts: Federal trial courts that hear cases in which the federal government is a party, on suits brought under federal law, on civil suits between citizens of different states, and on other federal questions.
Dred Scott v. Sanford: The case in which Chief Justice Richard Taney ruled that the Missouri Compromise outlawing slavery was unconstitutional and that Blacks had no rights and could never be citizens.
Judicial Activism: The belief that courts should play an assertive role in enforcing constitutional principles, particularly when other branches of government fail to act.
Judicial Restraint: The philosophy that courts should avoid making policy and instead limit themselves to interpreting the lawnarrowly and deferring to the decisions of the legislative and executive branches.
Judicial Review: The power of Judicial Review allows the Court to declare acts of Congress and the President null and void if they exceed the power of the Constitution.
Jurisdiction: The authority to hear cases.
Marbury v. Madison: The case in which Chief Justice John Marshall adopted the power of judicial review for the Supreme Court.
McCulloch v. Maryland: A case in which the Court invalidated a Maryland law that taxed the federally chartered Bank of the United States. Marshall’s opinion affirmed that the federal government had implied powers under the “necessary and proper” clause of Article I, Section 8.
Original Intent: According to this philosophy, judges should strive to interpret the Constitution based on the intentions of its Framers.
Rule of Four: The practice of the Supreme Court to hear a case if at least four of the nine Justices vote in favor.
Stare Decisis: Latin for “to stand by things decided”, this is the idea that lower courts are generally expected to follow precedents established by higher courts within their jurisdiction.
Supreme Court: The final appellate court of the United States.
http://www.fed-soc.org/. The Federalist Society offers a conservative perspective on Supreme Court cases and other legal issues.
http://www.fjc.gov/. The Federal Judicial Center is the education and research center for the federal courts.
http://jurist.org/. The University of Pittsburgh School of Law maintains a web site with a lot of information on the Supreme Court and Constitutional law.
http://www.law.com. This site is designed to serve legal professionals but contains a lot of interesting information.
Bork, Robert H. The Tempting of America: The Political Seduction of the Law. New York: Free Press, 1990.
Breyer, Stephen, The Authority of the Court and the Peril of Politics, Harvard University Press, 2021
Buglioso, Vincent. The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President. New York: Nation Press, 2001.
Holbrook-DeFeo, Gary. “The Election of 1800: Alexander Hamilton and the Death of the Federalist Party.” New England Journal of History 49. (Winter 1993): 26-40. EJ 467 858.
Huntington, Samuel P. The Third Wave: Democratization in the Late Twentieth Century. Norman: University of Oklahoma Press, 1991.
Rehnquist, William H. The Supreme Court: A new edition of the Chief Justice’s Classic History. New York: Knopf, 2001.
Scalia, Antonin. A Matter of Interpretation: Federal Courts and the Law. Princeton, N.J.: Princeton University Press, 1997.
Sharp, James Roger. American Politics in the Early Republic: The New Nation in Crisis. New Haven: Yale University Press, 1993.
