What Is the Judicial Branch?

(Overview)
Of the three branches of government within the United States, the judicial branch is arguably the least democratic, and yet its work is vital to the constitutional system. While the people vote for the president and members of Congress, the president appoints members of the national judicial branch with the "advice and consent" of the U.S. Senate. Origins of the judicial branch The Articles of Confederation made provision for a temporary commission to resolve disputes between states over boundaries, but it did not have its own permanent judicial branch. However, in creating a Congress that would exercise greater powers than the Congress under the Articles, the Framers sought to temper that power by giving the courts power to interpret the laws, which the Framers called "the power of judgment." The Federalist, No. 78 accordingly portrayed the judiciary as "the least dangerous branch," but it did so in part to counter claims that the judiciary's unelected members would constitute an unaccountable aristocracy that would thwart popular will. The process of presidential appointment and senatorial confirmation of federal judges was a compromise between the Virginia Plan, which had proposed congressional appointment of judges, and the New Jersey Plan, which had proposed executive appointment. Traditionally, the Senate exercises greater scrutiny over Supreme Court justices than over lower court judges, with modern confirmations sometimes involving days of public hearings. Constitutional provisions for the judicial branch Significantly, the Constitution describes the judicial branch in Article III, after first detailing the powers of the legislative and executive branches in Articles I and II. This suggests both that the Framers designed these two branches not only to be closer to the people but also more powerful. Presidents and legislators have the capacity to initiate actions whereas members of the judiciary must wait for issues to come to them and largely depend on the other two branches to enforce their decisions. Moreover, by comparison to the first two articles, Article III is relatively brief. The only regularly functioning court the framers specifically mentioned was the U.S. Supreme Court, leaving to Congress the creation of lower courts. Whereas members of the legislative and executive branches are elected to fixed terms, Section 1 of Article III specifies that members of the judiciary are appointed and confirmed by the elected branches and serve "during good behavior." That is, they serve until they die, resign, or (in rare cases) are impeached by the House of Representatives and found guilty of bribery, treason, or other high crimes and misdemeanors by a two-thirds majority of the U.S. Senate. Judicial tenure is designed to enable judges to interpret and apply the law without fear or favor. Judges and justices are further insulated from political retaliation by the guarantee that their salaries may not be diminished during their terms of office. The longest section of Article III is Section 2, which deals with judicial jurisdiction. This section gives federal courts authority over cases arising under the Constitution, U.S. laws, and treaties. These include cases involving ambassadors; admiralty and maritime jurisdiction; and controversies involving the U.S. government, U.S. states, and citizens of different states, etc. The Eleventh Amendment, ratified in 1795 in reaction to an early Supreme Court decision, later limited some non-censual suits against the states. Section 2 further specifies that the U.S. Supreme Court will hear some cases as a matter of first impression, that is, as part of its original jurisdiction, and others as part of its appellate jurisdiction. In an elusive phrase, the Section further specifies that the Court's appellate jurisdiction is subject to "such Exceptions, and under such Regulations as the Congress shall make." Although Article III, Section 2 further specifies that that federal cases shall be subject to jury trials, most of the

provisions of the Constitution designed to provide due process in trial procedures are found within the first ten amendments, known as the Bill of Rights. The federal courts today The federal court system is currently divided into three tiers. Most federal cases originate in 94 U.S. district courts, which are trial courts where a single judge presides and defendants have the right to jury trials. Losing litigants may appeal from there to U.S. Circuit Courts, of which there are currently 13. The U.S. Supreme Court may accept appeals not only from these courts but also from state supreme courts in cases that involve federal issues. State judicial systems are designed like the federal system, although the nomenclatures of individual state courts differ as do the length of judicial terms. Moreover, some states allow for direct election of judges or a mixed system (the Missouri Plan, also known as the Tennessee Plan) that allows voters to reject sitting judges. Federal courts often resolve disputes between state and federal powers. At least since Chief Justice John Marshall's historic decision in 1803's Marbury v. Madison, U.S. courts have also exercised the power of judicial review, whereby they can declare acts of governmental officials or laws adopted by Congress to be unconstitutional and hence void. Although the Constitution does not specifically delineate this power, its exercise is consistent with the Constitution's system of checks and balances and with the duty of judges to uphold the Constitution. Judicial review provides the courts with a mechanism to enforce the personal rights that are delineated within the Constitution and the Bill of Rights. Courts also exercise the power of statutory interpretation, or law interpretation. Once courts decide on the meaning of a law, Congress has the option of redrafting a law to better to reflect its purposes. By contrast, absent a shift by the Court itself, only constitutional amendments (requiring consent of two thirds of both houses of congress and three fourths of the states) can reverse decisions relative to constitutionality. The Eleventh Amendment, Fourteenth Amendment, Sixteenth Amendment, and Twenty-sixth Amendment are examples of amendments that have reversed Supreme Court decisions. The due process clause of the Fourteenth Amendment has further served as the means through which the Supreme Court has applied the provisions of the Bill of Rights, which once only limited the national government, to the states as well. Although courts are not as directly accountable to the people, it is difficult to imagine a well-functioning constitutional republic without such an independent judiciary. Further Reading Abraham, Henry Julian. The Judicial Process: An Introductory Analysis of the Courts of the United States, England, and France. New York: Oxford Univ. Press, 1993; Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. 2d ed. New York: Oxford University Press, 2005; Hamilton, Alexander, James Madison, and John Jay. The Federalist Papers. New York: New American Library, 1961; Schultz, David, John R. Vile, and Michelle D. Deardorff. Institutions, Politics, and Process, Volume I of Constituitonal Law in Contemporary America. New York: Oxford University Press, 2011; Vile, John R. A Companion to the United States Constitution and Its Amendments, 5th ed. Santa Barbara: Praeger, 2010.

Vile, John R. "What Is the Judicial Branch? (Overview)." In American Government.ABC-CLIO, 2000. Accessed November 17, 2013. http://americangovernment.abc-clio.com/.