2.8—The Judicial Branch

This section is large because it involves a foundation document (Fed 78) and a court case that can be somewhat confusing in addition to the regular section content. Essentially, the section explains how the court system is structured, Fed 78 will explain why it was/is structured that way, and Marbury v. Madison explains why the SCOTUS gets to decide what is and is not constitutional (because it actually wasn’t set up this way in the beginning).

What you need to learn

How is the judicial branch structured and does it exercise its powers as the third branch of the government?

Structure of the Federal Courts

Supreme Court of the United States

Court of Appeals

U.S. District Courts


Authority of the Courts


original jurisdiction

appellate jurisdiction

judiciary act of 1789

judicial review


Federalist Papers No. 78

Marbury v. Madison

2.8—The Judicial Branch

Most people have some understanding of trials in which one features another and accused criminals are innocent until proven guilty. Courtroom drama has been popular since Perry Mason—a 1950s television defense attorney who lost only one case in a nine-year series. More recently, TV has stereotyped small claims courts with a feisty, tell-it-like-it-is judge, a beefy courtroom bailiff, and litigants who rudely yell at each other.

The true picture of the judiciary shows a revered institution shaped by Article III of the Constitution, the Bill of Rights, and federal and state laws. The courts handle everything from speeding tickets to death penalty cases. State courts handle most disputes, whether criminal or civil. Federal courts handle crimes against the United States, high-dollar lawsuits involving citizens of different states, and constitutional questions. Federal courts are designed to protect the judiciary’s independence. The U.S. Supreme Court is the nation’s highest tribunal, which, through judicial review and its rulings, shapes the law and how it is carried out.

Constitutional Authority of the Federal Courts

Today’s three-level federal court system consists of the U.S. District Courts on the lowest tier, the U.S. Circuit Courts of Appeals on the middle tier, and the U.S. Supreme Court alone on the top. These three types of courts are known as “constitutional courts” because they are either directly or indirectly mentioned in the Constitution. All judges serving in these courts are appointed by presidents and confirmed by the Senate to hold life terms.

No national court system existed under the Articles of Confederation, so the framers decided to create a national judiciary while empowering Congress to expand and define it. Because states had existing courts, many delegates saw no reason to create an entirely new, costly judicial system to serve essentially the same purpose. Others disagreed and argued that a national judicial system with a top court for uniformity was necessary.

“Thirteen independent [state courts of final jurisdiction over the same cases, arising out of the same laws,” Federalist No. 80 argued, “will produce nothing but contradiction and confusion.

Article III

The only court directly mentioned in the Constitution is the Supreme Court, though Article III empowered Congress to create “inferior” courts. Article III established the terms for judges, the jurisdiction of the Supreme Court, the definition of treason, and a defendant’s right to a jury trial.

Judge’s Terms All federal judges “shall hold their offices during good behavior,” the Constitution states. Although this term of office is now generally called a “life term,” most U.S. judges retire or go on senior status at age 65, and a handful have been impeached and removed. This key provision empowers federal judges to make unpopular but necessary decisions. The life term assures that judges can operate independently from the other branches, since the executive and legislative branches have no power to remove justices over disagreements in ideology. The life term also allows for consistency over time in interpreting the law. Congress cannot diminish judges’ salaries during their terms in office. This way, Congress cannot use its power of the purse to leverage power against this independent branch.

Jurisdiction The Supreme Court has original jurisdiction—the authority to hear a case for the first time—in cases affecting ambassadors and public ministers and those in which a state is a party. For the most part, however, the Supreme Court acts as an appeals court with appellate jurisdiction.

Treason Article III also defined treason as “levying war” or giving “aid or comfort” to the enemy. Treason is the only crime mentioned or defined in the Constitution. Because English kings had used the accusation of treason as a political tool in unfair trials to quiet dissent against the government, the founders wanted to ensure that the new government could not easily levy or prosecute that charge just to silence alternative voices. At least two witnesses must testify in open court to the treasonous act in order to convict the accused.

Right to Jury Trial

Also mentioned in Article III is a criminal defendant’s right to a jury trial. Many more rights of the accused were included later in the Bill of Rights, but the framers saw the right to a jury trial as a citizen check on government accusation and was thus included in the article.

A Three-Level System

The first Congress essentially defined the three-tier federal court system with the Judiciary Act of 1789. Originally, one district court existed in each state. The law also defined the size of the Supreme Court with six justices, or judges. President Washington then appointed judges to fill these judgeships. In addition to the district courts, Congress created three regional circuit courts designated to take cases on appeal from the district courts. Supreme Court justices were assigned to oversee the U.S. appeals courts that include clusters of states, a “circuit,” and presided over periodic sessions. The justices would hold one court after another in a circular path, an act that became known as “riding circuit.”

U.S. District Courts

There are 94 district courts in the United States- at least one in each state, and for many less-populated western states, the district lines are the same as the state lines. Districts may contain several U.S. courthouses served by several federal district judges. Nearly 700 district judges preside over trials concerning federal crimes, lawsuits, and disputes over constitutional issues. Annually, the district courts receive close to 300,000 case filings, most of a civil nature.

A Trial Court

U.S. district courts are trial courts with original jurisdiction over federal cases. The litigants in a trial court are the plaintiff-the party initiating the action- and the defendant, the party answering the claim. In a criminal trial, the government is the plaintiff, usually referred to as the “prosecution.” In civil trials, a citizen-plaintiff brings a lawsuit against another, the defendant, who allegedly injured the plaintiff. “Injury could be physical injury-as one motorist may have recklessly caused to another–but more often it is a financial injury, alleging the defendant’s fault, measured in dollars. At times, it is an accusation that the government has injured a citizen, or a company, by violating their liberty.

Federal Crimes

The U.S. district courts try federal crimes, such as counterfeiting, mail fraud, or evading federal income taxes–crimes that violate the enumerated powers in the Constitution, Article I, Section 8. Most violent crimes, and indeed most crimes overall, are tried in state courts. However, Congress has outlawed some violent crime and interstate actions, such as drug trafficking, bank robbery, terrorism, and acts of violence on federal property. For example, in United States v. Timothy McVeigh (1998), the government argued that McVeigh was responsible for an explosion in an Oklahoma City federal building that killed 168 people. A federal court found him guilty and sentenced him to death.

U.S. Attorneys

Each of the 94 districts has a U.S. attorney, appointed by the president and approved by the Senate, who represents the federal government in federal courts. These executive branch prosecutors work in the Department of Justice under the attorney general, assisted by the FBI and other federal law enforcement agencies. Nationally, they try nearly 80,000 federal crimes per year. Of those, immigration crimes and drug offenses take up much of the courts’ criminal docket. Fraud is third.

Civil Cases

Citizens can also bring civil disputes to U.S. court to settle a business or personal conflict. Some plaintiffs sue over torts, or civil wrongs that have damaged them. In a lawsuit, the plaintiff files a complaint, a brief explaining the damages and why the defendant should be held liable. The plaintiff must prove the defendant’s liability or negligence with a “preponderance of evidence” for the court to award damages. Most civil disputes, even million-dollar lawsuits, are handled in state courts.

Disputes involving constitutional questions also land in this court. In these cases, a federal judge, not a jury, determines the outcome because these cases involve a deeper interpretation of the law. Sometimes a large group of plaintiffs accuse the same party caused damage to them and will file a class action suit. After a decision, courts may issue an injunction, or court order, to the losing party in a civil suit, making them act or refrain from acting to redress a wrong.

Suing the Government

Sometimes a citizen or group sues the government. Technically, the United States operates under the doctrine of sovereign immunity–the government is protected from suit unless it permits such a claim. Over the years, Congress has made so many exceptions that it even established the U.S. Court of Claims to allow citizens to bring complaints against the United States. Individual citizens and groups also regularly bring constitutional arguments before the courts. One can sue government officials acting in a personal capacity. For example, the secretary of defense could be personally sued for causing a traffic accident that caused thousands of dollars in damage to another’s car. But the secretary of defense or Congress cannot be sued for the loss of a loved one in a government-sanctioned military battle.

U.S. Circuit Courts of Appeals

Above the district courts are the U.S. Circuit Courts of Appeals. In 1891, with U.S. expansion and the increased caseload for the traveling Supreme Court justices riding circuit, Congress made the U.S. appeals courts permanent, full-time bodies. Appeals courts don’t determine facts; instead, they shape the law. The losing party from a fact-based trial can appeal based on the concept of certiorari, Latin for “to make more certain.” The appellant must offer some violation of established law, procedure, or precedent that led to the incorrect verdict in a trial court. Appeals courts look and operate differently than trial courts. Appeals courts have a panel of judges sitting at the bench but no witness stand and no jury box because such courts do not entertain new facts, but rather a narrow question or point of law.

The petitioner appeals the case, and the respondent defends the lower court’s ruling. The public hearing lasts about an hour as each side makes oral arguments before the judges. Appeals courts don’t declare guilt or innocence when dealing with criminal matters, and they don’t generally reverse judgments in civil suits. They rule on procedural matters in which the lower courts or other parts of government may have erred, not followed precedent, or violated the Constitution. They periodically establish new principles with case law. After years of deciding legal principles, appeals courts have shaped the body of U.S. law.

The U.S. Courts of Appeals consist of 11 geographic circuits across the country. Appeals court rulings stand within their geographic circuits. In addition to the 11 circuits, two other appeals courts are worthy of note. The Circuit Court for the Federal Circuit hears appeals dealing with patents, contracts, and financial claims against the United States. The Circuit Court of Appeals for the District of Columbia, among other responsibilities, handles appeals from those fined or punished by executive branch regulatory agencies. The DC Circuit might be the second most important court in the nation and has become a feeder for Supreme Court justices.

The United States Supreme Court

Atop this hierarchy is the U.S. Supreme Court, with the chief justice and eight associate justices. The Supreme Court mostly hears cases on appeal from the circuit courts and from the state supreme courts. The nine members determine which appeals to accept, sit en banc (French for “on the bench,” where all judges sit for the case) for attorneys’ oral arguments, pose questions, and engage in a discussion with the litigants. They will consider their decision for weeks, sometimes months, vote whether or not to overturn the lower court’s ruling, and issue their reasoning. The Court overturns about 70 percent of the cases it takes. Once the Supreme Court makes a ruling, it becomes the law of the land. Contrary to what many believe, the Supreme Court doesn’t hear trials of serial murders or billion-dollar lawsuits. However, it decides on technicalities of constitutional law that have a national and sometimes historic impact. This power of judicial review, to check the other branches, was first exercised by the Supreme Court in the 1803 case of Marbury v. Madison.