Chapter 13 Judicial Branch

Question 1

Criminal Cases

Answer 1

violations of penal law. By “penal” I mean there’s a penalty attached to certain conduct. The law will outline conduct that is prohibited, and then it will lay out a punishment that will be imposed if you commit that conduct.

Question 2

Offense

Answer 2

Once an act has been prohibited this way, we call it an offense. Examples include things like murder, theft, kidnapping, and burglary. So when the government prosecutes someone for committing an offense in violation of a penal law, we call this a criminal case. The ultimate object of a criminal case is to punish the defendant if they’re found guilty.

Question 3

Civil Case

Answer 3

What is a civil case? In this kind of case, the plaintiff and the defendant have a private dispute. By “private” I mean nongovernmental. One example would be an individual citizen suing another individual citizen. Neither one is the government, but someone is claiming that someone else caused harm to them, and they want to be compensated for it. Civil cases also involve organizations. So an individual might be suing a business, or two businesses might be suing each other, or a business might sue an individual. You get the idea. Someone or some organization is suing someone else, but it doesn’t involve the government prosecuting anyone for a crime. It’s a private dispute. And the ultimate goal here is not to punish someone; instead, it’s to make them correct some harm that they have caused.

Question 4

original Jurisdiction

Answer 4

authority to hear and decide a case first

Question 5

Trail Courts

Answer 5

So courts of original jurisdiction are trial courts, and this tells you what they do. They consider evidence presented by the plaintiff and by the defendant. Based on that evidence, they determine the facts of the case. In other words, they’re piecing the facts together to make sure they understand what happened. And once they do that, they apply the law to the facts to determine who wins and who loses. That’s basically what happens at a trial. If it’s a jury trial, the jury is the one doing the things I just described. If you don’t have a jury, then the judge will do it.

Question 6

Appellate Jurisdiction

Answer 6

Make sure you keep that straight. Original jurisdiction means it’s a trial court. Appellate jurisdiction
means it’s a reviewing court. If you’re on appeal, there’s no jury. There’s no “objection, your Honor,
asked and answered,” or anything like that. There are no witnesses taking the stand testifying about
this and that. That’s what happens at trial. On appeal what you’re doing is asking the court to review
the record from that proceeding.

Question 7

Reviewing Court

Answer 7

Where appeals take place. This is also where appellate jurisdiction is used.

Question 8

District Court

Answer 8

At the bottom, there are district courts. These courts have original jurisdiction, which means they are the trial courts in the federal judiciary. There are 94 judicial districts in the United States, which means there are 94 district courts. Let me give you a little more detail there. Each state in the Union has at least one district court. But some states are so large and have such a big population that they generate more cases than one single court could handle. So Congress has taken those states and split them up into smaller districts to handle all those cases.

Question 9

Courts of Appeals

Answer 9

One level up from there are the federal courts of appeals. Sometimes these are called circuit courts for a reason you’ll understand in just a minute. But officially they’re called courts of appeals, which tells you what kind of jurisdiction they have. These courts have appellate jurisdiction. So they do not
conduct trials. Instead, they review what happened in district court to determine if it was fair (whensomeone is claiming that there’s a problem).

Question 10

Circuit Courts

Answer 10

another name for a court of appeal

Question 11

Federal Circuit

Answer 11

Each court of appeals presides over a geographic area called a circuit. Congress has taken the
country and divided it into twelve regional circuits. There’s one called the District of Columbia Circuit,
and then after that, they’re numbered: the First Circuit, Second Circuit, Third Circuit, Fourth Circuit.
It goes all the way up to Eleventh. There’s only one district court inside the District of Columbia
Circuit, but the other ones that have numbers contain multiple district courts each. For example, the
Fifth Circuit encompasses the states of Texas, Louisiana, and Mississippi. It contains nine districts
because there are four judicial districts in Texas, three in Louisiana, and two in Mississippi. All the
other numbered circuits are the same, it’s just that they cover other states and other districts.
This design creates an orderly flow of cases up the federal judiciary. Districts feed cases into circuits,
and circuits feed cases into the Supreme Court. So if something happened to you in the Rio Grande
Valley that created a basis for a lawsuit, you would file your case in the United States District Court
for the Southern District of Texas, because the Rio Grande Valley is in the Southern District. If you lost
your case but felt that the trial court made an error, you would appeal to the United States Court of
Appeals for the Fifth Circuit. You could not appeal to any other circuit because the Southern District
of Texas is in the Fifth Circuit. It works that way all throughout the judiciary. If you’re filing a lawsuit,
you have to do it in the district where the claim arose, and if you’re filing an appeal, you have to do it
in the circuit where the district is located.
Now I need to clarify something. I told you we have a circuit for the District of Columbia (that’s where
the nation’s capital is), and then we have eleven numbered circuits that cover different regions
throughout the United States. That would be a total of twelve circuits. There are actually thirteen, but
the last one is not called the Thirteenth Circuit. It’s called the Federal Circuit. The court of appeals
that presides over this circuit is a special one. It can hear appeals from district courts anywhere in
the United States, but only on certain types of issues. These include things like international trade,
government contracts, patents and trademarks, and veterans benefits. There are other things too,
but that gives you a sampling of the subject matter jurisdiction of the Federal Circuit.
So if a claim involves one of those things, no matter what district you’re appealing from, you would
appeal to the United States Court of Appeals for the Federal Circuit. If it involves anything else, you
would do what I already described and go to the court of appeals for the circuit where your district is
located.
Each court of appeals has a number of judges (quite a few). To decide cases, they split off into panels
of three. So if you’re in the court of appeals arguing a case, you will argue that case to a panel of three
judges. There might be someone else in a different courtroom arguing a case to a different panel
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because, like I said, there are lots of judges. They split them into panels of three and divide the
caseload between those panels. If it’s a substantial case that could have a really big impact, they
might put together a panel bigger than three. But normally it’s three.
What you’re trying to do is persuade at least two of those three judges, because they decide cases by
majority rule. They’re going to listen to the arguments from both sides. When the arguments are done,
they’ll go into a back room, discuss the case, and vote on the outcome. Once they’ve arrived at an
outcome, one of those judges will write a document called an opinion. That document announces
the judgment of the court.

Question 12

Justices

Answer 12

The judges on the Supreme Court are not actually called judges, they’re called justices. There are
currently nine justices on the Court. That number is established by law. In other words, Congress
determines it. So the number of justices on the Supreme Court could change if Congress decided to
pass a law changing it

Question 13

Discretionary

Answer 13

Appeal to the U.S. Supreme Court as discretionary; it’s not a matter of right. You ask the Court to
hear your appeal, but they don’t have to. It’s in their discretion. The way you ask is by filing a petition
for a writ of certiorari.

Question 14

writ of certiorari

Answer 14

is an order from the Supreme Court to a lower court telling
them to send up the record of a case because the case is going to be reviewed. So when you’re trying
to appeal, you petition the Supreme Court to issue that kind of writ

Question 15

Rule of four

Answer 15

Now in each term, the Court gets thousands of petitions, and they only grant about 100 of them. To
decide which ones they’ll grant, they use a principle called the rule of four. All nine justices will take
a look at the petitions for certiorari that the Court has received, and if a petition gets at least four of
the nine justices voting in favor of it, then the Court will issue a writ of certiorari and take the case on
appeal. The odds of that happening are pretty slim because they only hear about 80 to 100 appeals
every term, but they get thousands of petitions requesting it (like 7,000 or 8,000 in a term).
So what would increase the odds of the Supreme Court deciding to take a case on appeal? I’ll give
you two things. One is that the case involves some substantial question of law—something that
would have broader effect on society as a whole, and it’s a big legal question that needs to be settled.
For example, does a woman have a constitutional right to get an abortion? That’s a substantial legal
question that doesn’t just affect the people involved in the case; it affects people all across society

Question 16

brief

Answer 16

A brief is just a document that lays out
the argument someone is making in a case. The party who filed the appeal will submit a brief, then
the other party will respond with their own brief, and then you’ll get a reply by the first party again.

Question 17

Party

Answer 17

All
of this is done in writing. And just to be clear, when I say party, I mean the actual people or
organizations involved in the case. Someone sued someone else. Those people are the parties.

Question 18

Amicus Curiae

Answer 18

The Supreme Court also has a practice of considering briefs filed by nonparties. When a person or
an organization can show that they would be affected by the outcome of a case even though they’re
not one of the parties, we call them amicus curiae. It’s just a Latin term. It means “friend of the
court.” Let’s say a student sued South Texas College for something. The parties to that case are just
the student and South Texas College, but the outcome of the case will affect colleges everywhere.
So those other colleges might want to get involved by filing briefs trying to persuade the Court to go
this way or that way. Since they have a real interest in the outcome of the case, the Supreme Court
will treat them as amicus curiae and allow them to file briefs as well.

Question 19

Conference

Answer 19

Once the oral arguments have been completed, the justices will go behind closed doors and hold a
conference on the case. We don’t know exactly what happens in there because it’s behind closed
doors, but they’re discussing the case and determining the outcome. Once that’s been completed,
one of the judges will be assigned the task of writing a document explaining the Court’s decision and
the legal basis for it.

Question 20

Opinion

Answer 20

This is called an opinion. Other justices might write opinions as well, so we need
to talk about four different types of opinions that you might get out of the Supreme Court on a case.

Question 21

Majority Opinion

Answer 21

A majority opinion is an opinion where at least five members of the Court agree both on the outcome
and the reason for the outcome.

Question 22

Concurring Opinion

Answer 22

A concurring opinion is where one or more of the justices agree with the outcome reached by the
majority, but for a different reason. So they write a separate opinion. Basically what they’re saying is,
I concur with the outcome, but I have a different reason, so I’m writing a different opinion to explain
that reason.

Question 23

Plurality Opinion

Answer 23

A plurality opinion is one where a majority of the justices agree on the outcome of a case, but not on
the reasoning for the outcome. So they do agree on how to decide the case, but not on why they’re
deciding it that way. One reason for this is concurring opinions. If too many justices break off and
write their own concurrences, then you don’t have a majority behind a single reason for the Court’s
outcome. Unlike majority opinions, plurality opinions are not precedential. In other words, they don’t
provide authority for how future cases should be decided.

Question 24

dissenting opinion

Answer 24

And lastly, a dissenting opinion is an opinion written by a justice or justices who disagree with the
Court’s outcome, which obviously means they also disagree with the Court’s reasoning. And they
write separately to explain why they disagree.

Question 25

Federal Questions

Answer 25

First, a case belongs in federal court if it involves a federal question—in other words, if the issue in
the case is about the U.S. Constitution, a law passed by Congress, or a treaty between the United
States and another country. For example, if someone thinks they were unfairly denied Social Security
benefits, that case would belong in federal court because Congress passed the law creating the
Social Security system. Easy enough.

Question 26

Diversity of Citizenship

Answer 26

Next, a case can be decided in federal court if it involves diversity of citizenship with a certain amount
in controversy. Diversity of citizenship means the plaintiff and the defendant are from different
states. Those cases can be filed and decided in federal court even though they involve state issues,
as long as the plaintiff is suing for more than $75,000.

Question 27

Code Law System

Answer 27

Ok, let’s shift gears a little bit. In America, we have a judicial system called a common law system,
and that’s different from a code law system. What’s the difference? In a code law system, the
legislature passes very detailed laws, so there’s not much room for interpretation. All the judges are
expected to do is apply the law. The details have been supplied by the legislature that passed the
law

Question 28

Common Law System

Answer 28

In a common law system, the legislature does not provide so much detail. Laws are more generally
worded. So when people have disputes over the meaning of a law, courts actually have to interpret
the law and fill in the blanks. Because of that, you end up with what some people refer to as judgemade law.

Question 29

Judicial Lawmaking

Answer 29

This actually happened, by the way. The case went all the way to the United States Supreme Court,
and the Supreme Court said that when the law prohibits employment discrimination based on
someone’s sex, that includes discriminating against people because they’re gay or lesbian or
transgender. Hopefully, this example helps you see how judges add to the law during the process of
interpreting it. If the wording of the law is vague, they have to provide details so we can understand
it. And again, this is what some people call judicial lawmaking.

Question 30

Advisory Opinion

Answer 30

An advisory opinion would be one that just tells you what the
law means, even though there’s not a case. Courts do not exist to give people advice on what the law
means. The purpose of courts is to resolve disputes over the meaning of the law. There has to actually
be a case. Two parties have to actually be arguing about what the law requires in their situation. Then

Question 31

Precedent

Answer 31

Think of a precedent as a principle that’s laid down for guidance in the future. Let’s go back to our example of sex discrimination. If a transgender male gets fired because they’re transgender, and they file a lawsuitbecause the law says you cannot discriminate against someone based on their sex, they win that
lawsuit. So the court says the word “sex” in the law includes being a transgender male. That decision
becomes precedent.

Question 32

Stare Decisis

Answer 32

This leads us to a vocabulary term called stare decisis. It’s Latin and means “let the decision stand.”
So stare decisis is a principle that says once you decide a case, the decision should be a guide for
future cases with similar facts. Federal courts follow this principle as a general rule.
That does not mean the Supreme Court will always follow its prior decisions. Sometimes the Court
reverses one of its prior decisions. For example, in Plessy v. Ferguson, the Supreme Court said
separate but equal is ok. You can engage in racial segregation as long as you provide equal facilities
for black people and other minorities who are being segregated. Well in Brown v. Board of Education,
the Supreme Court said that was wrong. So, occasionally the Supreme Court will overturn one of its
prior decisions, but the general rule is stare decisis

Question 33

Tenure

Answer 33

so this selection process puts a layer of insulation between judges and the people.
The second factor contributing to judicial independence is the tenure of judges—in other words,
their term of office. Members of Congress and the president have fixed terms. So if you’re elected to
the House, you’re elected for two years. If you’re elected to the Senate, it’s for six years. And if you’re

elected president, it’s for four years. If you want to keep the job, you have to run for reelection at the
end of the term.

Question 34

Judicial System

Answer 34

Judicial activism is the idea that you should liberally interpret the law. By liberally, I mean you should
read the law in a way that makes it flexible so that it can cover a wider variety of situations. Take for
instance the Supreme Court case of Roe v. Wade, decided in 1973, where the Court said a woman
has a federal constitutional right to get an abortion. How did the Court reach that conclusion? The
word abortion is not in the Constitution. They said the right to get an abortion is based on the
constitutional right to privacy, but the word privacy is not in the Constitution either. So, to reach their
conclusion, the justices in the majority took the Constitution and read between the lines. In other
words, they looked at what the document does say, and based on that, they inferred that it also
guarantees an unwritten right to get an abortion.

Question 35

Judicial Restraint

Answer 35

y, judicial restraint. If you found someone who believes
in this philosophy and asked them to explain it, they might say, “I believe the law means what it says.
Not what anyone wishes it said, but what it actually says.” Obviously, a judge with this perspective
would be less willing to read between the lines of the Constitution or any other law. They would base
their interpretation on the plain meaning of the words used in the document, which means it would
not apply to as wide a variety of situations. This approach explains the Supreme Court’s 2022
decision in Dobbs v. Jackson Women’s Health Organization, where the Court overturned Roe v. Wade
and said a woman actually does not have a constitutional right to get an abortion.

Question 36

Judicial Review

Answer 36

Simply put, judicial review is the power of a court to review actions
by the legislative and executive branches and determine whether those actions are constitutional.
So if you believe Congress has passed a law violating your constitutional rights, you can file a lawsuit,
and courts have the authority to address that question. Likewise, if you believe that the executive is
somehow violating the Constitution in a way that affects you personally, you can file a lawsuit and
get that question addressed in federal court. In the federal government, courts have authority to
review actions by the other branches and strike those actions down if, in the court’s judgment, they
violate the Constitution

Question 37

Appointment Power

Answer 37

that decision. This is a check on the executive branch because law enforcement officers work in the
executive branch.
Next is the appointment power

Question 38

Advice and Consent

Answer 38

they’re appointed by the president with the advice and consent of the
Senate. So a president can try and exercise control over the judicial branch by appointing judges who
have views that are similar to the president’s views. As long as the president’s nominees get approved
by the Senate, this strategy can be effective

Question 39

Jurisdiction

Answer 39

Those district courts and courts of appeals exist because Congress passed laws creating them. And
that’s ok, because the Constitution gives Congress authority to decide what the judicial branch will
look like below the Supreme Court. That includes authority to determine the jurisdiction of those
courts. By jurisdiction, I mean the types of cases the courts are allowed to hear. And in this way,
Congress is able to exercise some control over what courts get to do and don’t get to do.

Question 40

Judicial Implementaiton

Answer 40

The last check is judicial implementation. Courts do not have power to enforce their own decisions.
The only thing a court does is issue a judgment. Then it’s up to the executive branch to carry out that
judgment the same way that it carries out laws passed by Congress. Also, if necessary, it’s up to
Congress to pass laws to make sure that people obey decisions of the Supreme Court. So, what if
one of the other branches, or both of them, disagree with a decision made by a federal court? They
might refuse to implement that decision. In other words, they might refuse to execute it or carry it
out. This is a check on the courts because it lets them know that if they get too far out there in their
decisions, the other branches might be hesitant to implement those decisions.

Question 41

Judicial Power

Answer 41

Judicial power is the power to determine what the law means when there’s a dispute over its meaning. We call this interpreting the law. The Constitution says that power will belong to federal courts, but it only mentions one court specifically. It says there will be a Supreme Court at the top of the judiciary.