THE SUPREME COURT STOPS THE FLORIDA RECOUNT

This chapter reflects on the ways in which the Supreme Court makes decisions that have important consequences for the American people. The Court is embedded in a governmental, political linkage, and structural environment that shapes its behavior. The Court does not initiate or pass new laws, but it interprets the meaning of law and the Constitution. In this sense, it makes law and is a national policymaker.

The authors use the Supreme Court's intervention in the 2000 presidential election controversy in Florida (see Ch. 10 also) to illustrate how the Court makes decisions that have important consequences for the American people. After election calls, retractions and re-calls by the networks, counts and recounts by election officials, rulings and reversals by the courts, and bitter partisan fighting during the whole ordeal, the Supreme Court finally determined the outcome of the election.

The crux of the issue concerned hand recounts being conducted in three Florida counties where election fraud was suspected, as opposed to the mandatory statewide machine recount which Secretary of State Katherine Harris used to declare George W. Bush the winner of Florida's electoral votes, and thus the Presidency, during the three weeks following the November 7 election. The whole thing came to a head on December 8, when the Florida Supreme Court, responding to a request by the Gore campaign, ruled the hand counts could continue, setting December 12 as the deadline for certification. The Supreme Court, responding to a request from the Bush campaign, temporarily suspended the hand recounts, and after reviewing briefs from both sides, in a 5-4 decision overruled the Florida Supreme Court on December 12, saying recounts had to occur in all counties, but also agreeing December 12 was the absolute deadline. Thus, with no time to conduct such a recount, the Gore campaign conceded the election to George W. Bush.

The Bush v. Gore decision was remarkable mainly because, in "exception that proves the rule" fashion, it violated a number of rules and traditions of court behavior. These include: the Court generally avoids getting involved in political and partisan issues; the Court has generally avoided cases that might hurt its reputation or legitimacy; the Court generally tries to avoid 5-4 decisions on controversial issues; the Court usually intends its decisions to serve as precedents for future ones; and the Court usually tries to be consistent with its previous rulings in a particular domain of the law. Despite these aberrations, this case nevertheless shows the role of the Court as interpreter of the law and national policymaker.

THE STRUCTURAL CONTEXT OF COURT BEHAVIOR

The Constitution says little about the powers and responsibilities of the judicial branch, and debate still continues over whether the framers intended for the Court to have the power of judicial review. In sharp contrast to the views of James Madison and Thomas Jefferson, Alexander Hamilton believed that the power of judicial review was inherent in the separation of powers and was essential to balanced government. Hamilton's position was probably the prevailing one among the framers, who believed in the idea that there was a higher law to which governments and nations must conform.

Chief Justice John Marshall claimed the power of judicial review for the Supreme Court in Marbury v. Madison (1803), the so-called midnight judges case. The Court ruled that Marbury (one of the "midnight appointments") was entitled to his commission and that Madison had broken the law in failing to deliver it. However, the Court could not compel Madison to comply with the law because the provision of the Judiciary Act of 1789, which granted the Court the power to issue writs of mandamus (a court order compelling an official to act) in such cases, was itself unconstitutional because it sought to expand the original jurisdiction of the Supreme Court as defined in Article III. Thus, by "limiting" the court, judicial review was established as belonging to the judicial branch alone. In Marshall's words, "it is emphatically the province and duty of the judicial department to say what the law is." The Court has shown considerable restraint in its exercise of judicial review. It was not used for another 54 years after Marbury, and has been used to declare acts of Congress unconstitutional only about 100 times in our history (although state and local laws have been overruled with greater frequency).

THE U.S. COURT SYSTEM: ORGANIZATION AND JURISDICTION

The organization and jurisdiction of the court system are examined in considerable detail in this chapter. The United States operates under a dual court system, with one court system for the national government and fifty separate court systems in the states. The Supreme Court is the only court specifically mentioned in Article III of the Constitution. The organization of the federal court system is determined by Congress, which has established a three-tiered system of District Courts, Courts of Appeal, and the Supreme Court.

Federal District Courts are trial courts of original jurisdiction. Most cases in the federal court system are first heard in one of the 94 district courts, and most of the business of the federal courts takes place at this level. This is the only level of federal court that uses juries and witnesses. Some District Court cases are heard by petit (trial) juries while some are heard by a judge.

U.S. Courts of Appeal are intermediate-level courts of appellate jurisdiction. Courts of appeal do not hear new cases, and new factual evidence cannot be introduced; appeals are based on legal issues rather than questions of factual material. Judges usually convene as panels of three or more to hear oral arguments from the lawyers on each side of the case and to cross-examine them on points of law. The panel issues a decision, often weeks or even months after the oral arguments.

The U.S. Supreme Court is a court of both original jurisdiction and appellate jurisdiction. Original jurisdiction of the Supreme Court is established by the Constitution and can only be changed by amendment. Appellate jurisdiction, which accounts for the great bulk of its caseload, is set by congressional statute. Appellate jurisdiction is discretionary. That is, the Supreme Court decides for itself whether to accept the case.

APPOINTMENT TO THE FEDERAL BENCH

All federal judges are appointed by the president with the advice and consent of the Senate. The Constitution does not establish any qualifications or criteria for the judicial branch, but custom dictates that they must be lawyers. Almost one-half of all Supreme Court justices during this century have had no prior experience as judges, including some of the most prominent and influential justices. Supreme Court justices tend to come from backgrounds that are more privileged than most Americans, and from the most elite parts of the legal profession. Judicial appointments at other levels also significantly underrepresent parts of the American population, although circuit and district courts are more representative than the Supreme Court.

Presidents look at many factors besides merit in making appointments and usually nominate people for the Court who agree with them on ideological and policy grounds. Past political and ideological positions of federal court nominees are generally a good guide to their later behavior on the bench. However, presidents are sometimes disappointed with their nominees - liberal presidents may find that their nominees are more conservative than expected, and conservative presidents may find that their nominees are more liberal than expected. The Senate has rejected only 28 nominees for the Supreme Court since the founding of the nation (five in this century). The custom of senatorial courtesy (the right of the senior senator from the president's party in the state where the district court is located to approve the nominee) becomes important in making appointments to district court judgeships.

THE SUPREME COURT IN ACTION

The Court has a number of screening mechanisms, sometimes established on a case-by-case basis, to control its docket (agenda of cases to be heard) and to focus its attention on cases that involve important federal or constitutional questions. Major screening mechanisms include requirements that cases must be real and adverse (must involve a real dispute between two parties), parties in a case must have standing (must have a real and direct interest in the issues), and cases must be ripe (must be ready for a decision). The most important tool that the Court has for controlling its agenda is the power to grant (or not to grant) a writ of certiorari ("cert"), an order from an appellate court to lower courts demanding that they send up a complete record of the case. Under the rule of four, petitions are granted cert if at least four justices vote in favor. A grant of cert indicates a decision of the Court that an appellate case raises an important federal or constitutional issue that it is prepared to consider. If cert is denied, the decision of the lower court stands.

Cases that are granted cert will be scheduled for oral argument. After reading the briefs and hearing oral arguments, the justices meet in conference to deliberate and reach a decision. The custom is for each justice to state his or her position, starting with the chief justice and moving through the ranks in order of seniority. The vote is not final until it has been publicly announced by the Court. Justices have an opportunity to change their votes in response to the written opinions.

The Court is a tradition-bound institution defined by many rituals (such as entering the courtroom in order of seniority) and norms (unwritten but clearly understood ways of behaving). The norm of secrecy keeps conflicts between justices out of the public eye and elevates the stature of the Court, but it also means that we know less about the inner workings of the Court than about either of the other branches of government.

Appellate cases involve considerable study, writing, and discussion among the judges before the decision is released. In important cases, the decision may be accompanied by a written opinion that explains the reasoning of the court. Decisions establish precedents that guide other judges.

THE SUPREME COURT AS A NATIONAL POLICYMAKER

People often say that the Court should not make policy but should only settle disputes; however, the textbook notes that the Court cannot help but make public policy because the disputes it settles involve contentious public issues and fundamental questions about the meaning of our constitutional rules. Scholars continue to examine the role of judicial activism (policymaking by judges, as contrasted with judicial self-restraint, which calls for judges to engage in narrow and limited interpretation of the law). Advocates of original intention and its twin strict construction believe that the Court must be guided by the original intentions of the framers and the words found in the Constitution. They believe that the expansion of rights that has occurred since the mid-1960s (such as the right to privacy that formed the basis for Roe v. Wade) has no foundation in the framers' intentions or the text of the Constitution. Advocates of loose construction believe that the intentions of the Founders are impossible to determine and would be unreasonably constricting in the twentieth century. They believe that judges must try to reconcile the fundamental principles of the Constitution with changing conditions. The modern Court is clearly more activist than it was in the past. Most justices today hold a more expansive view of the role of the Court in framing national policy than their predecessors. Both liberals and conservatives have been activist.

The text identifies three major periods in the history of constitutional law in the United States and looks at how changes in constitutional law have been influenced by structural factors (particularly by economic change). In the first period, the Court helped settle the question of the nature of the federal Union; in the second, it helped define the role of the government in a free enterprise economy; in the third, it focused on issues of civil liberties and civil rights.

The framers created a system of centralized federalism, and a number of decisions by the Marshall Court (in the first period of constitutional law) enhanced national power by placing emphasis on a strong central government. In the second period, the Civil War and the Industrial Revolution triggered the development of an industrial, mass production economy that was dominated by the business corporation. The Supreme Court became the principal ally of business in the late nineteenth and early twentieth centuries. Although the Fourteenth Amendment was intended to guarantee the citizenship rights of former slaves, Section 1 was gradually translated by the Court to mean protection of corporations and other forms of business from state regulation. The alliance between business and the Supreme Court continued until the Great Depression of the 1930s.

The New Deal reflected a new national consensus about the need for a greatly expanded federal government with new responsibilities, formed in reaction to the Great Depression. By the end of the 1930s, the Court came to defer to the political branches of government and abandoned its effort to prevent the government from playing a central role in the management of the economy and the regulation of business. Since World War II (the third period), the Court has turned its attention to the relationship between government and individuals. It has made significant strides in expanding the realm of individual freedom. Particularly during the tenure of Chief Justice Earl Warren, the Court rendered a series of decisions that expanded protections for rights of free expression and association, religious expression, fair trials, and civil rights for minorities. The Court applied essential provisions of the Bill of Rights to the states in many of its landmark decisions.

OUTSIDE INFLUENCES ON THE COURTS

The Supreme Court coexists and interacts with other governmental bodies, and with no power to force others to obey its decisions, usually stays within the boundaries of what is acceptable to the other branches. Presidential influences on the Court include discretion in how actively decisions of the Court are enforced, appointments to the bench, filing suits through the Justice Department, mobilizing public opinion against the Court, and threats to alter the composition or jurisdiction of the Court. Congressional influences on the Court include control over the size, make-up, and jurisdiction of federal courts; the ability to approve raises of federal judges and the budgets of the judicial branch; approval of judicial nominees; legislative responses to Court decisions; and rarely, impeachment.

The Supreme Court is also influenced by political-linkage factors. Interest groups and social movements can influence the court indirectly through their actions, but also try to do so directly through test cases (cases designed to test the legality or constitutionality of a law) and class-action suits (suits brought by individuals on behalf of entire classes of people). Interest groups also often file amicus curiae ("friend of the court") briefs in an attempt to influence judicial decisions. The Court's interaction with other societal elites also means its decisions do not stray far from the views of opinion leaders in business, politics, and law. Lastly, public opinion influences the Court, albeit indirectly, through elections, news coverage, and the like. Court decisions appear to be consistent with the opinions of the public in a substantial portion of cases, though (not surprisingly) much less so than with the elected branches.

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