chAPTeR TweLve • The JudIcIARy 295
affirm 281
amicus curiae brief 274
appellate court 276
case law 273
class-action suit 274
common law 272
concurring opinion 281
dissenting opinion 281
diversity of
citizenship 274federal question 274
general jurisdiction 276
judicial activism 286
judicial
implementation 289
judicial restraint 287
jurisdiction 273
justiciable
controversy 274limited jurisdiction 276
litigate 274
majority opinion 281
opinion 281
oral arguments 280
political question 293
precedent 272
remand 281
reverse 281rule of four 280
senatorial courtesy 282
stare decisis 272
trial court 276
unanimous opinion 281
writ of certiorari 280keyterms
chaptersummary
1 American law is rooted in the common law
tradition. The common law doctrine of stare decisis
(which means “to stand on decided cases”) obligates
judges to follow precedents established previously
by their own courts or by higher courts that have
authority over them. Precedents established by
the United States Supreme Court, the highest
court in the land, are binding on all lower courts.
Fundamental sources of American law include the
U.S. Constitution and state constitutions, statutes
enacted by legislative bodies, regulations issued by
administrative agencies, and case law.
2 Article III, Section 1, of the U.S. Constitution
limits the jurisdiction of the federal courts to cases
involving (a) a federal question, which is a question
based, at least in part, on the U.S. Constitution, a
treaty, or a federal law, or (b) diversity of citizenship,
which arises when parties to a lawsuit are from
different states or when the lawsuit involves a
foreign citizen or government. The federal court
system is a three-tiered model consisting of (a) U.S.
district (trial) courts and various lower courts of
limited jurisdiction, (b) intermediate U.S. courts of
appeals, and (c) the United States Supreme Court.
Cases may be appealed from the district courts to
the appellate courts. In most cases, the decisions
of the federal appellate courts are final because the
Supreme Court hears relatively few cases.
3 The Supreme Court’s decision to review a
case is influenced by many factors, including the
significance of the issues involved and whether the
solicitor general is asking the Court to take the
case. After a case is accepted, the justices undertake
research (with the help of their law clerks) on theissues involved in the case, hear oral arguments
from the parties, meet in conference to discuss and
vote on the issues, and announce the opinion, which
is then released for publication.
4 Federal judges are nominated by the president
and confirmed by the Senate. Once appointed, they
hold office for life, barring gross misconduct. The
nomination and confirmation process, particularly
for Supreme Court justices, is often extremely
politicized. Democrats and Republicans alike realize
that justices may occupy seats on the Court for
decades and want to have persons appointed who
share their views. Nearly 20 percent of all Supreme
Court appointments have been either rejected or not
been acted on by the Senate.
5 In interpreting and applying the law, judges
inevitably become policymakers. The most important
policymaking tool of the federal courts is the power
of judicial review. This power was not mentioned
specifically in the Constitution, but the Supreme
Court claimed this power for the federal courts in its
1803 decision in Marbury v. Madison.
6 Judges who take an active role in checking the
activities of the other branches of government
sometimes are characterized as “activist” judges,
and judges who defer to the decisions of the other
branches sometimes are regarded as “restraintist”
judges. The Warren Court of the 1950s and 1960s
was activist in a liberal direction, whereas the
Rehnquist and Roberts Courts have become
increasingly activist in a conservative direction.
7 Checks on the powers of the federal courts
include executive checks, legislative checks, public
opinion, and judicial traditions and doctrines.9781285436388_12_ch12_271-296.indd 295 10/29/13 11:01 AM
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