Key Positions in the Judicial Branch

The judiciary is the branch of the federal government that decides cases under the nation's laws. It is made up of various courts. The main courts are the federal district courts, the circuit courts of appeals, and the U.S. Supreme Court.

Federal district courts hold trials in criminal and civil cases. A criminal case is one in which the federal government charges a person or business with violating a federal criminal law. A civil case is a noncriminal dispute between people or businesses, or between the government and a person or business.

Federal district courts cover ninety-four geographic districts in the United States. The party, or participant, who loses a case in a district court may appeal to the appropriate circuit court of appeals.

Courts of appeals review trials to make sure district court judges and juries do not make serious mistakes. There are thirteen courts of appeals in the federal system. Twelve of them cover geographic regions, and one handles special kinds of appeals from across the nation.

A party who loses in a court of appeals may ask the U.S. Supreme Court to review the case. Most of the time, the Supreme Court has discretion, or power, to choose whether or not to review a case. If it reviews a case, the Supreme Court usually limits review to a major question of law of national importance.

The key positions in the federal judiciary are the justices who serve on the Supreme Court, the judges who serve on the courts of appeals and district courts, and the magistrates who serve in the district courts. Other key positions include law clerks, court clerks, court stenographers, and the reporter of decisions.

Supreme Court justices

The jurists who serve on the Supreme Court are called justices. The Constitution does not specify how many justices the Court should have. Instead, Congress sets the number by law. In the Judiciary Act of 1789, Congress set the number at six. The number fluctuated up and down over the next eighty years. Since 1869, the number has been fixed at nine.

Appointment, compensation, and removal of justices

There are no requirements in the Constitution that a person must satisfy to serve as a Supreme Court justice. Article II, Section 2, simply gives the president the power to appoint justices with advice and consent from the Senate. This means the Senate must approve a president's appointment, or nomination, by a simple majority vote. Before the Senate votes, the Senate Judiciary Committee holds hearings to make a recommendation.

The Constitution says justices must be paid for their services. Congress determines this amount by law. The Constitution makes it illegal for a justice's salary to be lowered during his or her service. This prevents Congress and the president from trying to control justices by threatening to change their salaries.

The Constitution says justices "shall hold their offices during good behavior." This means justices can serve as long as they want. Nobody, including the president, Congress, and other justices, can fire them from their jobs.

Justices, however, can be impeached, or officially accused of wrongdoing, and removed from office by Congress if they commit treason, bribery, or other high crimes and misdemeanors. Treason means levying war against the United States or giving aid and comfort to its enemies. Bribery means accepting a gift for official conduct. The Constitution does not define "high crimes and misdemeanors," and scholars disagree over its meaning. Because Congress has the sole authority to remove a justice by impeachment, Congress gets to decide whether a justice has committed a high crime or misdemeanor.

Removal by impeachment has two phases. During the first phase, the House of Representatives holds hearings and votes on whether to impeach a justice. A simple majority in the House of Representatives must vote in favor of a justice's impeachment.

Once impeached, a justice faces trial in the Senate. At the end of the trial, a two-thirds majority of senators must vote for conviction to remove the justice from office.

As of 2005, Justice Samuel Chase (1741–1811) is the only Supreme Court justice to have been impeached by the House. The House impeached Chase by a vote of 73–32 in March 1804 for political speeches he made during courtroom proceedings. Justices are not supposed to allow politics to affect their fair conduct of cases. In March 1805, after the impeachment trial in the Senate, the Senate vote exceeded a simple majority, but it failed to reach the two-thirds majority necessary to convict and remove Chase.

The chief justice and associate justices

One of the nine justices on the Supreme Court is the chief justice. The other eight are called associate justices. When a chief justice resigns or dies, the president nominates someone to fill his or her place. The replacement can be one of the associate justices or someone who is not yet on the Court. The Senate must approve the president's nomination by a simple majority.

The chief justice is the symbolic leader of the Supreme Court. He or she sits at the center of the bench when the Court hears oral arguments from attorneys. (As of 2005, all of the chief justices were men.) When the justices meet to discuss the cases they have to decide, the chief justice leads the discussion. If the chief justice is part of the majority of justices in deciding a particular case, he chooses the justice who writes the opinion for the Court.

The chief justice has special administrative duties. He chairs the Judicial Conference of the United States and the board of the Federal Judicial Center, and he supervises the Administrative Office of the United States Courts. The Judicial Conference and the Administrative Office are responsible for running the federal judiciary. The Federal Judicial Center conducts research, training, and planning for the federal judiciary.

Under Article I, Section 3, of the Constitution, the chief justice presides over the Senate during impeachment trials of U.S. presidents. In this role, the chief justice helps the Senate apply its rules for impeachment trials. The chief justice does not get to vote on whether to convict an impeached president.

There have been two presidential impeachment trials in U.S. history. Chief Justice Salmon P. Chase (1808–1873) presided over the 1868 trial of President Andrew Johnson (1808–1875; served 1865–69); Chief Justice William Rehnquist (1924–) presided over the 1999 trial of President Bill Clinton (1946–; served 1993–2001).

When it comes to deciding cases, the chief justice does not have any more power than the associate justices. He has one vote in deciding whether the Supreme Court should accept a case for review, and one vote in the decision of a case. Chief justices get paid more than associate justices because of their extra administrative duties. They are appointed and removed, however, the same way as associate justices.

Accepting, hearing, and deciding cases

The main work of the Supreme Court involves selecting cases to review, hearing the cases it accepts, and deciding them. Parties who want the Supreme Court to review a case from a lower federal court or from the highest court of a state file a petition for a writ of certiorari, a petition that asks the Supreme Court to review the case. (A writ is a court order, and certiorari is a Latin word that means "to certify a court case for review.") The petition explains why the case is important enough for the Court's consideration. If at least four justices vote to grant the petition, the Court hears the case.

Hearing a case has two main phases. In the first phase, the parties file written briefs explaining their sides of the case. In the second phase, the parties appear before the Court in public to present oral argument. This gives the justices a chance to ask the parties specific questions about the case. Most of the time, attorneys do the work of writing briefs and presenting oral argument for the parties.

After reading the briefs and hearing oral argument, the justices meet in a private conference to discuss the case. These discussions are not recorded, and the public never gets to see them. After discussing the case, the justices vote on how to decide it. At least five justices must vote for reversal to change the result from the lower courts. Otherwise, the original result remains unchanged.

Serving in Different Branches

The U.S. Constitution prevents members of Congress from holding office in another branch of the government while they serve in Congress. Technically, the Constitution does not prevent members of the executive branch from serving in the judicial branch at the same time. Such dual service, however, would seem to violate the separation of powers for which the Constitution stands.

Nothing prevents one person from serving in all three branches at different times, and a number of Americans have accomplished this feat. Chief Justice John Marshall (1755–1835) served as a congressman from Virginia and then secretary of state under President John Adams (1735–1826; served 1797–1801). Justice James F. Byrne (1879–1972) was a congressman and senator from South Carolina who also served as secretary of state under President Harry Truman (1884–1972; served 1945–53). Other justices who also served in both Congress and the executive branch include Salmon P. Chase, Nathan Clifford (1803–1881), Lucius Q. Lamar (1825–1893), and Sherman Minton (1890–1965)

As of 2005, William Howard Taft (1857–1930) is the only person who served both as president of the United States and as a justice of the Supreme Court. Taft was president from 1909 to 1913. Then he served as chief justice of the Supreme Court, his lifelong ambition, from 1921 to 1930. Taft died in 1930, a month after resigning from the Court.

Many future presidents served in the legislative branch before taking on the highest office in the land. A more unusual circumstance, however, is a former president serving in another branch of government. Only three have done it. Besides Taft's service in the judiciary, former president John Quincy Adams (1767–1848; served 1825–29) served in the U.S. House of Representatives from 1831 to 1848. Former president Andrew Johnson was a U.S. senator for nearly five months before his death in 1875. One other ex-president, John Tyler (1790–1862; served 1841–45), was elected to the Confederate House of Representatives in 1861, but he died before Congress assembled.

If the chief justice is in the majority, he assigns himself or another justice in the majority the task of drafting an opinion explaining the Court's decision. If the chief justice is in the minority, the associate justice in the majority with the most years of service on the Court assigns a justice from the majority to draft the opinion.

Justices may write their own opinions either agreeing or disagreeing with the Court's result. A justice who agrees writes a concurring opinion. A justice who disagrees writes a dissenting opinion.

The justices share drafts of their opinions with each other to give everyone a chance to suggest changes. When the opinions are finished, the Court releases its official decision and any concurring or dissenting opinions to the parties and the public.

Court of appeals judges

The courts immediately below the Supreme Court in the federal judiciary are called circuit courts of appeals. There are thirteen such courts. Twelve of them cover geographic regions, including eleven numbered regions and one in the District of Columbia. These courts hear appeals from the federal district courts in their circuits.

The thirteenth court of appeals is called the Court of Appeals for the Federal Circuit. It is located in Washington, D.C. It hears appeals from federal district courts nationwide in cases involving special matters. It also hears appeals from special federal trial courts, including the U.S. Court of International Trade and the U.S. Court of Federal Claims.

Appointment, compensation, and removal of circuit court judges

Each court of appeals has a number of judges fixed by congressional law. One of the judges is the chief judge. He or she is the symbolic head of the circuit with administrative duties much like those of the chief justice of the Supreme Court.

Courts of appeals judges are appointed by the president with advice and consent from the Senate, just like Supreme Court justices. They get compensation, or salaries, that cannot be lowered while they are in office, and they stay in office during good behavior until they die or decide to resign. Congress has the sole authority to remove circuit judges through the impeachment process. Otherwise, circuit judges cannot be fired.

The work of circuit court judges

The work of the courts of appeals resembles the work of the Supreme Court, with some exceptions. In most cases, parties can automatically appeal a case from a federal district court to the appropriate court of appeals without getting permission. A court of appeals usually reviews more issues than the Supreme Court does.

The Circuit Courts of Appeals

There are thirteen circuit courts of appeals in the federal judiciary. One is called the Court of Appeals for the Federal Circuit. It sits in Washington, D.C., to hear appeals from district courts nationwide in special kinds of federal cases and from special federal trial courts.

The other twelve courts of appeals cover twelve geographic regions, or circuits. One covers the District of Columbia, and the others cover numbered circuits that contain U.S. states and territories. Each circuit court of appeals hears appeals from the federal district courts in its circuit:

• The Court of Appeals for the First Circuit covers federal district courts in Maine, Massachusetts, New Hampshire, Puerto Rico (a U.S. territory), and Rhode Island.
• The Second Circuit covers Connecticut, New York, and Vermont.
• The Third Circuit covers Delaware, New Jersey, Pennsylvania, and the Virgin Islands (a territory).
• The Fourth Circuit covers Maryland, North Carolina, South Carolina, Virginia, and West Virginia.
• The Fifth Circuit covers Louisiana, Mississippi, and Texas.
• The Sixth Circuit covers Kentucky, Michigan, Ohio, and Tennessee.
• The Seventh Circuit covers Illinois, Indiana, and Wisconsin.
• The Eighth Circuit covers Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota.
• The Ninth Circuit covers Alaska, Arizona, California, Guam (a territory), Hawaii, Idaho, the Northern Mariana Islands (a territory), Montana, Nevada, Oregon, and Washington.
• The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.
• The Eleventh Circuit covers Alabama, Florida, and Georgia.
• The Court of Appeals for the District of Columbia hears appeals from the Federal District Court for the District of Columbia.

Court of appeals judges hear and decide cases in panels of three. The panels receive written briefs, hear oral arguments, and discuss and decide cases much like the justices on the Supreme Court. At least two of the three judges must vote for reversal to change the result from the federal district court.

Sometimes a party who loses before a panel of three judges can ask all the judges in the circuit to rehear the case before appealing to the Supreme Court. Such a rehearing is called en banc review.

District court judges

Congressional law divides the United States into ninety-four districts for the organization of federal trial courts. Each district contains at least one court with a set number of district court judges. Some districts are divided into divisions, each of which has a court with a number of district court judges.

Appointment, compensation, and removal of district court judges

The constitutional provisions for the appointment, compensation, and removal of district court judges are the same ones that apply to circuit judges and Supreme Court justices. Presidents appoint district court judges with advice and consent from the Senate. Judges serve for life during good behavior until they die or resign, and get a salary that cannot be lowered. Only Congress can remove a district court judge through the impeachment process.

The work of district court judges

District court judges handle trials in criminal and civil cases. Trials have five main phases. In the first phase of a civil case, a person or business, called a plaintiff, files a complaint against a defendant. In the first phase of a criminal case, the government files criminal charges against a defendant. The parties in both kinds of cases might disagree over whether the court has the power to decide the case. This gives the district court judge his or her first opportunity to make a decision in the case.

If a court has the power to hear a case, the parties go through the second main phase, called discovery. In discovery, each party must share information he or she has about the case with the other parties. The purpose of discovery is to help the parties agree on issues that are not in dispute, and narrow the issues on which they disagree. Parties sometimes refuse to share information during discovery. At that point, district court judges hear motions to decide whether or not the information has to be shared under federal law and the rules of the court.

The third main phase of a civil trial is called summary judgment. In this phase, one or both sides ask the judge to decide the case without holding a trial. If the evidence is so one-sided that one party deserves to win as a matter of law, the judge enters summary judgment in favor of that party.

Summary judgment avoids the need to hold a time-consuming and costly trial. The party who loses summary judgment, however, can appeal the decision to the appropriate circuit court of appeals. The court of appeals can reverse the summary judgment decision if the district court judge made a mistake. Criminal trials do not have summary judgment proceedings because defendants have a constitutional right to be tried by a jury.

The fourth main phase is the actual trial. Trials happen when parties fail to settle their disagreement along the way. In jury trials, parties chose a jury from citizens in the community. To choose the jury, attorneys for both sides question potential jurors. The purpose is to determine whether a potential juror might have beliefs that would prevent him or her from being a fair juror. The parties can exclude jurors with such beliefs from serving on a jury. There is no limit to the number of such exclusions. Parties may also exclude a fixed number of potential jurors who do not have specific beliefs that would prevent them from being fair. This allows parties to exclude people whom they feel might be unfair, even though they lack a good reason for the feeling. Parties, however, cannot exclude jurors because of their race, gender, or other such features. In the most serious kinds of cases, such as murder, jury selection can be a long, complicated process.

After jury selection, the parties present their cases to the jury. The jury is responsible for deciding who wins the case. The district court judge oversees the trial. He or she controls what evidence the jury is allowed to hear under the law. He or she also instructs the jury on the law it must apply when deciding who wins the case.

In bench trials, parties present their case to the judge without a jury. The judge decides the case like a jury would have done. Whether a judge or jury decides a case, the result is called a verdict.

The fifth phase of a civil trial happens after a jury or judge decides a case. The losing party can ask the judge to reverse the verdict or to hold a new trial. Judges can reverse a jury verdict when the jury's decision is unreasonable, though this happens only occasionally. Judges can grant a new trial when there was an error during trial, even one made by the judge, that unfairly affected the losing party's case. Because criminal defendants have a constitutional right to be tried only once by a jury, judicial control over criminal verdicts is much more limited.

In civil cases, judges enter judgments in favor of the winning party after resolving any post-trial motions. In criminal cases, judges enter judgments in favor of defendants who are found not guilty. When a defendant is found guilty, the judge imposes a sentence in accord with federal law. At this stage in both civil and criminal cases, the parties decide whether to accept the results or appeal to the circuit court of appeals. The federal government, however, cannot appeal a verdict of not guilty in a criminal case.

District court magistrate judges

In 1968, Congress passed the Federal Magistrates Act. The law gave district courts the power to appoint magistrate judges to help district court judges do their jobs.

Magistrate judges are usually lawyers, but they do not always have to be. They receive a salary for their services. Unlike regular judges, magistrate judges are appointed for fixed terms and can be fired by a court for good cause, or reason.

District courts control the power of the magistrate judges who work for them. Many magistrate judges handle pretrial hearings in both criminal and civil cases. The purpose of pretrial hearings is to resolve certain issues before the parties present their cases at trial. Magistrate judges can hold trials in criminal cases involving both felonies and misdemeanors if the defendant agrees. Misdemeanors are less serious than felonies, which are the most serious kind of crimes. For example, under federal law, assaulting another person on federal property by simply striking, beating, or wounding him or her is a misdemeanor punishable by six months in prison. Assaulting someone on federal property with a deadly weapon or in a way that causes serious bodily injury is a felony punishable by up to ten years in prison.

Magistrate judges also help district court judges with civil cases. Magistrate judges often hear and resolve discovery disputes if parties disagree over what information they must share. They hold informal trials and recommend results to the district court judges. If the parties to a civil case agree, magistrate judges can hold full trials without district court judges.

Law clerks

Law clerks are lawyers who help justices and judges with legal research and writing. They are usually young lawyers who have just graduated from law school, but they can also be lawyers with more experience.

Each Supreme Court justice usually hires four law clerks. These law clerks tend to be lawyers who graduated near the top of their classes at the most prestigious law schools in the nation. Many of them serve as law clerks in lower courts before getting to the Supreme Court. They usually serve as Supreme Court law clerks for one year. The positions carry with them invaluable experience.

Supreme Court law clerks have three main responsibilities. They analyze the thousands of petitions the Supreme Court receives each year asking it to review cases. Law clerks write memoranda about the petitions to help the justices decide which cases to accept for review.

Supreme Court law clerks also write memoranda to prepare the justices to hear oral arguments in the cases they accept for review. Finally, law clerks read briefs, conduct legal research, and write memoranda to help the justices decide the cases they have accepted for review. Sometimes law clerks draft opinions for the justices. The justices, however, always review the drafts and make changes before issuing them as official, concurring, or dissenting opinions.

Court of appeals judges usually hire two or three law clerks. These law clerks have duties similar to those of the Supreme Court law clerks. They preview appeals to help the judges decide which cases can be handled quickly and which require more work. They write memoranda to prepare the judges to hear oral arguments. They read briefs, conduct legal research, write memoranda, and draft opinions to help circuit judges decide cases.

District court judges and magistrate judges usually have one or two law clerks. These clerks read briefs, conduct legal research, write memoranda, and draft opinions to help the judges and magistrates decide motions in criminal and civil trials. A motion is a request for the court to decide a particular issue relating to a case.

Clerk of the court

Every court in the federal judiciary has a clerk. The clerk of the court runs an office that administers the day-to-day business of the court. This includes administering case schedules, receiving and filing papers in cases, distributing papers to the justices and judges, collecting filing fees and court fees, and preparing and distributing court orders. Court clerks also help attorneys with informal procedures that do not appear in the court's official rules.

Attorneys

Attorneys, or lawyers, are people who represent parties in court cases, both in the federal and state judicial systems. Most attorneys are not employed by the courts. All attorneys, however, are considered officers of the courts. This means they must comply with court rules for proper behavior in the judicial systems.

There are three main kinds of attorneys in the federal judicial system: U.S. attorneys, federal public defenders, and private attorneys. U.S. attorneys represent the federal government in federal courts. They serve as prosecutors in criminal cases. They also represent the government's side of the case in civil cases, whether the government is a plaintiff suing someone else or a defendant being sued.

U.S. attorneys are employed by the U.S. Department of Justice, which is a department under the president in the executive branch of the government. As of 2005, there were ninety-three U.S. attorneys representing the federal government in ninety-four geographic regions called districts. Each U.S. attorney gets help from a number of assistant U.S. attorneys.

When a case involving the federal government reaches the U.S. Supreme Court, a special attorney called the solicitor general handles the case for the government. Like the U.S. attorneys, the solicitor general is employed by the Department of Justice and has many assistant attorneys helping him or her.

The second main kind of attorney in the federal judicial system is the federal public defender. Federal public defenders represent criminal defendants who cannot afford an attorney. They are employed by the federal court in which they serve. Like U.S. attorneys, federal public defenders receive help from assistant federal public defenders.

Private attorneys are the third main kind of attorney in the federal judicial system. Some work for law firms, others work for businesses, and others work for nonprofit organizations. Private attorneys have to obey court rules for proper behavior just like attorneys employed by the federal government.

Court stenographers

Court stenographers are people who record every word spoken during a hearing or trial in district court and during oral argument in appellate courts. Stenographers do this entirely by hand using a device called a stenotype machine, which looks like a typewriter. Today, many courts record courtroom proceedings rather than use stenographers. Either way, the process gives judges and parties a record of what happened in court.

Reporter of decisions

The official versions of Supreme Court decisions are published in United States Reports. The person who prepares the Court's opinions for publication is called the reporter of decisions. As of early 2005, fifteen reporters of decisions have served the Court since 1790.

The official versions of decisions by the circuit courts of appeals are published in Federal Reporter. The official versions of decisions by the federal district courts are published in FederalSupplement. A private company called West Publishing Company publishes both.

For More Information

BOOKS

Abraham, Henry J. Justices, Presidents, and Senators. Lanham, MD: Rowman & Littlefield Publishers, 1999.

Baum, Lawrence. The Supreme Court. Washington, DC: Congressional Quarterly Inc., 1998.

Biskupic, Joan, and Elder Witt. The Supreme Court at Work. Washington, DC: Congressional Quarterly, Inc., 1997.

Carp, Robert A., and Ronald Stidham. The Federal Courts. 2nd ed. Washington, DC: Congressional Quarterly Inc., 1991.

Choper, Jesse H., ed. The Supreme Court and Its Justices. 2nd ed. Chicago: American Bar Association, 2001.

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

Schwartz, Bernard. A History of the Supreme Court. New York: Oxford University Press, 1993.

Shelley, Mack C., II. American Government and Politics Today. 2004–2005 ed. Belmont, CA: Wadsworth Publishing, 2003.

Surrency, Erwin C. History of the Federal Courts. 2nd ed. Dobbs Ferry, NY: Oceana Publications, 2002.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Wasby, Stephen L. The Supreme Court in the Federal Judicial System. 2nd ed. New York: Holt, Rinehart and Winston, 1984.

WEB SITES

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United States Department of Justice.http://www.usdoj.gov/ (accessed on February 12, 2005).

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