Judicial Targets Reading Guide
6.1 • The Constitution and the Federal Judiciary
Yellow Highlights = Target Evidence 187
Chapter 6 • Section 1
6.1 The Constitution and the Federal Judiciary
The federal judiciary is one of the three branches of the nation’s government. Its role is to interpret and apply the laws of the nation. In Federalist No. 78, Alexander Hamilton described the federal judiciary as “least dangerous to the political rights of the Constitution.” Sitting atop the federal judiciary is the Supreme Court, which was established in Article III of the Constitution and serves as the highest court in the nation.
The delegates to the Constitutional Convention spent much less time debating the structure and powers of the federal judiciary than they did hammering out the design of the legislative and executive branches. The delegates agreed that the judiciary should retain a degree of independence from the other two branches. They also agreed that judges should have lifetime tenure, with the condition of “good behavior.” They made provisions to protect judicial salaries from efforts to reduce them by an unhappy or vengeful Congress. Under the Constitution, the president nominates federal judges, and the Senate—through its role of advice and consent—confirms the nominations. Once federal judges are confirmed, Congress and the president have few tools to coerce or intimidate them.
Article III: The Federal Judiciary in the Constitution
In the Constitution, the judiciary (Article III) comes in third, behind Congress (Article I) and the executive branch (Article II), both in terms of placement and in amount of coverage. Only the highest level of the federal judiciary—the Supreme Court—is described in the document, leaving the establishment of lower federal courts in the hands of Congress: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
The Constitution was clear that the federal judiciary, and the Supreme Court in particular, was to be the highest judicial power in the land: “The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the laws of the United States, and Treaties made...” This judicial power, combined with the supremacy clause, establishes the supremacy of the federal judiciary over matters involving federal law.
The Constitution also briefly describes the federal courts’ jurisdiction, or authority to decide specific cases. If a court has original jurisdiction in a case, that court has the authority to hear the case first, act as a finder of facts, and decide the case. Courts with original jurisdiction are trial courts. A court with appellate jurisdiction has the authority to review the decision of a lower court in order to overturn or revise that decision. Courts operating under appellate jurisdiction focus on lower courts’ actions and procedures, without finding facts on their own.
Ratification: Antifederalist Concerns and the Federalist Response
In Federalist No. 78, Alexander Hamilton sought to reassure skeptical Antifederalists (like Brutus No. 11) that the federal judiciary would not trample upon their rights. Hamilton argued that members of the federal judiciary—because of the process of their selection and their lifetime tenure—would stand apart from politics and be able to “secure a steady, upright, and impartial administration of the laws.” Compared to the power of the sword and the purse, the judiciary, exercising only judgment, would be the least dangerous branch.
Target Alignment 6.1 Structure & Independence
federal judiciary
the branch of the federal government that interprets the laws of the nation. (p. 187)
Supreme Court
the highest level of the federal judiciary, established in Article III of the Constitution. (p. 187)
original jurisdiction
the authority of a court to hear a case first, which includes finding facts. (p. 187)
appellate jurisdiction
the authority of a court to hear and review decisions made by lower courts. (p. 187)
AP® Foundational Doc
Federalist No. 78: Hamilton argues that judicial independence and life tenure insulate judges from politics, securing impartial law administration.
CHAPTER 6 • The Federal Judiciary 187
6.1 • The Constitution and the Federal Judiciary
189–190
Congress Builds the Judiciary
The first Congress passed the Judiciary Act of 1789 to fill in details about “the nature and the organization” of the court system. Only the chief justice of the United States is mentioned in the Constitution; the document does not specify the number of justices in the Court, instead leaving that decision to Congress. The chief justice presides over private conferences between the justices and decides who writes the majority opinion when voting with the majority.
The Judiciary Act added five associate judges to the Supreme Court, bringing the total number of justices to six. Although the number of justices has varied throughout history, it has been set at nine since 1869. The Judiciary Act also established two lower tiers to the federal judiciary because only the Supreme Court had been set out in the Constitution.
Appointment to the Federal Judiciary
Federal judges must be nominated by the president and confirmed by a majority vote in the Senate. Because federal judges are appointed for life—on the condition of “good behavior”—successfully placing individuals on the federal bench is a way for a president to have an influence on government and on public policy long after that president’s term ends.
While most district court nominees are approved, since the 1960s confirmations of appellate and Supreme Court judges have been more contentious and affected by partisan political battles. While most district court appointments run smoothly under the custom of senatorial courtesy, recent Supreme Court confirmation hearings often involve intense scrutiny.
In November 2013, a majority of senators, led by Democrats, voted to change filibuster rules to allow closure of debate over executive nominees and lower court judges by a simple majority vote rather than the previous sixty votes. In April 2017, Senate Republicans voted to lower the threshold for Supreme Court nominees so they could advance to a simple majority vote, paving the way for the confirmation of Neil Gorsuch. Subsequent confirmation votes have been razor-thin: Amy Coney Barrett was confirmed 52 to 48 in 2020, and Ketanji Brown Jackson was confirmed 53 to 47 in 2022.
Politics and Supreme Court Nominations
Presidents strive to nominate people who share their judicial philosophies and approach to constitutional interpretation. Political calculations come into play as well. Nominees who are outspoken on contentious political issues are likely to face careful scrutiny and intense questioning by senators. Once confirmed, however, presidents have no control over their behavior.
Target Alignment 6.1 Nomination Battles
Figure 6.1 Federal Structure
U.S. Supreme Court
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U.S. Court of Appeals
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U.S. District Courts
Life Tenure Stakes
Because judges serve for decades, every vacancy represents an enduring ideological shift on national jurisprudence. (p. 189)
Nuclear Option
The lowering of the Senate filibuster to 51 votes (simple majority) in 2013/2017 escalated partisan polarization over court appointments.
CHAPTER 6 • The Federal Judiciary 190
6.2 • John Marshall and the Power of the Supreme Court
192–193
Chapter 6 • Section 2
6.2 John Marshall and the Power of the Supreme Court
In 1803, John Marshall faced a difficult test. He was chief justice of the U.S. Supreme Court, the highest court in the federal judiciary. Marshall’s Court was hearing a case that on its surface might have seemed to be a small one. It was brought by four men who felt that they had been cheated out of their jobs. Like so many other seemingly “small” cases, this one turned out to be much bigger. Marshall’s handling of it had profound effects on the power and prestige of the federal judiciary.
The Election of 1800
It started with a national election, one of the nastiest in American history. In 1800, incumbent president John Adams and his Federalist Party squared off against Thomas Jefferson and the Republican Party. By 1800, many Americans were fed up with Adams and the Federalists. Jefferson defeated Adams, and the Democratic-Republicans also won control of both houses of Congress.
The Judiciary Act of 1801: Appointments Signed, Sealed, but Not Delivered
Having lost the presidential election and the majority in Congress, the Federalists tried to preserve their influence within the national government. The Federalists turned to the federal judiciary, the one branch where they might endure. Federal judges are shielded by lifetime appointment, providing they do not commit an impeachable offense.
In the final weeks of John Adams’s administration, the Federalists sought to cement their position within the federal judiciary by passing the Judiciary Act of 1801, which changed the Supreme Court’s schedule, reduced the size of the Court from six justices to five, and reorganized the lower federal courts in such a way as to create sixteen new vacancies that were promptly filled by Adams’s administration. Adams’s last-minute appointments have been called “the midnight judges” because of the hasty nature of their nomination and confirmation. In the scramble to complete the paperwork before the Republicans took office, some of the commissions, including one for William Marbury, were not delivered and were still sitting on Secretary of State John Marshall’s desk when Adams’s term expired at midnight.
When President Jefferson took office, he ordered his new Secretary of State, James Madison, not to deliver the remaining commissions. William Marbury sued, asking the Supreme Court to issue a writ of mandamus (a court order forcing an official to perform a duty) ordering Madison to deliver his commission.
Politics and the Power of the Supreme Court
Marshall faced a trap. If he ordered Jefferson’s administration to deliver the commissions, Jefferson would likely ignore the order, proving the Court was completely powerless. If he denied Marbury’s claim, the Court would look weak and submissive to the executive branch.
Target Alignment 6.2 Marshall & 1800 Crisis
Midnight Judges
Federalist judicial appointments made by John Adams in the final hours of his presidency to entrench party power in the judiciary. (p. 193)
Writ of Mandamus
A legal order requiring a government official to carry out an official, nondiscretionary legal duty. (p. 193)
Marshall's Dilemma
If Marshall rules for Marbury → Jefferson defies the Court. If Marshall backs down → the Court appears powerless. Marshall needed an ingenious constitutional solution.
CHAPTER 6 • The Federal Judiciary 193
6.2 • John Marshall and the Power of the Supreme Court
194–195
Marbury v. Madison and the Establishment of Judicial Review
In the case of Marbury v. Madison (1803), Marshall broke the decision before him into three separate questions. First, were the men entitled to their commissions? Yes, the signing and sealing made the appointment final. Second, did the laws of the country provide a remedy? Yes, individuals who suffer an injury under law have a right to legal remedy.
Marshall presented a third question: Was the Court entitled to issue the remedy sought—the writ of mandamus? To this question, Marshall answered no. The power to issue writs of mandamus in this case had been improperly given to the Court by Section 13 of the Judiciary Act of 1789. Marshall argued that when Congress granted the Court the authority “to issue writs of mandamus to public officers,” it was attempting to expand the scope of the original jurisdiction of the Court, which Congress cannot do. Article III limits the Court’s original jurisdiction to specific cases affecting ambassadors and states.
Marshall held that the part of the Judiciary Act that tried to give the Supreme Court the power to issue a writ of mandamus was in violation of the Constitution and, therefore, invalid: “a law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.” In this statement, Marshall established that the Supreme Court has the power of judicial review, which is the authority of a court to strike down a law passed by Congress or an executive action if it conflicts with the Constitution.
The Implications of Marshall’s Decision
In establishing the power of judicial review, Marshall expanded the Court’s power to interpret the Constitution. In exercising judicial review, according to Marshall’s logic, the Court does not place itself above the other two branches; it is coequal to them, and the Constitution is supreme to all three.
Marshall did not invent the idea of judicial review; Alexander Hamilton had discussed the ability of courts to “pronounce legislative acts void” in Federalist No. 78. John Marshall helped establish the judiciary as a coequal branch of government. By sacrificing Marbury’s commission, Marshall avoided a direct clash with Jefferson while permanently elevating the constitutional power of the Supreme Court over Congress and the President.
Target Alignment 6.2 Judicial Review
judicial review
the authority of the Supreme Court to strike down a law passed by Congress or an executive action if it conflicts with the Constitution. (p. 195)
Marbury v. Madison (1803)
The landmark Supreme Court decision that established judicial review over federal laws. (p. 194)
AP® Case Brief Summary
Issue: Did Congress unconstitutionally expand SCOTUS original jurisdiction via the Judiciary Act of 1789?
Holding: Yes. Section 13 is void. The Constitution is the supreme law of the land, and the Court has the final power of judicial review.
CHAPTER 6 • The Federal Judiciary 195
6.3 • Organization of the Federal Judiciary
196–197
Chapter 6 • Section 3
6.3 Organization of the Federal Judiciary
Each of the two levels in the federal system—the national level and the state level—operates its own system of courts. There is a single federal judiciary for the nation and there are separate state judiciaries in each of the fifty states.
Criminal and Civil Cases
Both state and federal courts have jurisdiction over two categories of law, criminal and civil. Criminal law covers actions that harm the community (e.g., assault or theft); the state or federal government acts as prosecutor and must prove guilt. Civil law covers cases involving private rights and relationships between individuals or organizations, such as contracts or property disputes.
The Federal District Courts
The federal court system is structured as a three-layered pyramid. At the bottom are the nation’s federal district courts. Congress created the district courts in the Judiciary Act of 1789. In most federal cases, district courts act as trial courts and have original jurisdiction. As of 2023, there were ninety-four district courts in the United States, and each state had at least one. District court boundaries do not cut across state lines. The district courts handle most of the work of the federal courts, and a judge hears each case. The Constitution guarantees the right to a jury trial in all federal criminal cases (Sixth Amendment) and in some civil cases (Seventh Amendment).
The Appellate Courts
The federal courts of appeals occupy the middle level of the constitutional courts. There are thirteen courts of appeals; eleven have jurisdiction over regionally based “circuits,” one has jurisdiction over the District of Columbia (which handles appeals involving federal agencies), and the thirteenth handles cases arising under international trade and patent law. The courts of appeals exercise appellate jurisdiction only, reviewing decisions made by the federal district courts and certain specialized federal courts.
Appellate judges do not hold trials, gather new evidence, or hear witnesses. Instead, panels of judges review written briefs and listen to oral arguments to determine whether lower court proceedings complied with constitutional and statutory law.
Target Alignment 6.3 Federal Court Organization
federal district courts
the lowest level of the federal judiciary; these courts usually have original jurisdiction in cases that start at the federal level. (p. 197)
federal courts of appeals
the middle level of the federal judiciary; these courts review and hear appeals from the federal district courts. (p. 197)
Dual Court System
Federal courts and state courts operate parallel systems. Most cases nationwide (~98%) are heard in state courts; federal courts hear cases involving federal law or the Constitution.
CHAPTER 6 • The Federal Judiciary 197
6.3 • Organization of the Federal Judiciary
198–201
The Supreme Court
The Constitution establishes the U.S. Supreme Court as the highest court in the nation. Since 1869, the Court has consisted of nine justices, comprising a chief justice and eight associate justices. Cases in which the Court exercises original jurisdiction are few (ambassadors, state vs. state). In all other cases, the Court has appellate jurisdiction.
The Decision to Take Cases on Appeal
Under Chief Justice Roberts, the Court receives 8,000 to 9,000 petitions a year but hears fewer than 1 percent (about 80 to 90 cases). The justices have adopted the rule of four, which simply means that it will generally hear a case if four or more justices vote to do so. If it decides to hear a case, the Court issues a writ of certiorari (from the Latin “to be made more informed”) to the lower court, requesting the records of the case.
Supreme Court decisions set a precedent, a judicial decision that acts as a basis for deciding similar cases in the future. Under the principle of stare decisis—the doctrine that judges should follow precedent—the Court facilitates consistency and predictability in the legal system.
Considering and Deciding on Cases & Types of Opinions
After oral arguments and secret judicial conferences, justices draft formal opinions explaining their reasoning:
- Majority opinion: a binding Supreme Court opinion, which serves as precedent to guide lower courts in handling similar cases.
- Concurring opinion: an opinion that agrees with the majority decision but offers different or additional reasoning that does not serve as precedent.
- Dissenting opinion: an opinion that disagrees with the majority opinion and does not serve as precedent. Dissents provide a record that may guide future reversals if the Court’s composition changes.
Target Alignment 6.3 Appeals & Opinions
precedent
a judicial decision that guides future courts in handling similar cases. (p. 200)
stare decisis
the practice of letting a previous legal decision stand. (p. 200)
writ of certiorari
order issued when the Supreme Court agrees to hear an appeal. (p. 200)
rule of four
four justices must agree to grant cert for a case to be placed on the docket. (p. 200)
CHAPTER 6 • The Federal Judiciary 201
