OUR JUDICIARY

OUR JUDICIARY

by Judge Richard Poland,
Flagler College

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 judges, both of the Supreme and inferior courts, shall hold their offices during good behavior and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. U.S. Constitution Article III, Section 1.

In Washington v. Glucksberg[1] Chief Justice Rehnquist, writing for the majority, asserted that the State of Washington legislation, Washington Revised Code9A.36.060(1 & 2) (1994), which made it a felony for a doctor or anyone else to assist a person in committing suicide, is constitutional and does not offend the liberty guarantee in the 14th Amendment. The Supreme Court had spoken and we now know that any of the 50 states can criminalize physician-assisted suicide without violating the U.S. Constitution. Had just five Supreme Court Justices agreed to the contrary, then we would know that states could not send doctors or anyone else to jail if they chose to aid people in ending their lives. But who gave the courts this authority to pass judgment on the validity of legislative enactments? Where in Article 3 of the Constitution is it written that The U.S. Supreme Court has the final authority to declare the acts of the other branches of government unconstitutional? The answer is that the Supreme Court gave itself this power and that authority has not been effectively challenged during the past 200 years.

When the delegates to the 1787 Constitutional Convention in Philadelphia approved the creation of the federal judiciary, they did not envision the powerful court system which we have today. To our Founding Fathers, the judicial system, as a co-equal branch of government, was almost an afterthought. In fact, there was “surprisingly little on the subject”[2] of the judiciary during the debates at the Convention. Of the Articles in the Constitution describing our three branches of government, the language creating the federal judiciary is much briefer than the language which creates the executive and legislative branches.[3] However, James Madison, the primary author of the Constitution, believed that it was essential to have an independent judiciary. This independence, together with the establishment of the power of judicial review by Chief Justice John Marshall in Marbury v. Madison[4], is the underpinning of the strong and powerful judiciary we observe every day in modern American society. So powerful, in fact, that some philosophers of law have argued that all laws are not truly valid until the courts have finished the appellate process determining their constitutionality. These legal theorists assert that legislation passed by Congress or a state legislature, or law created by the executive order of a president or a governor, or rulings decreed by a federal or state administrative agency are not the definitive law of the land until the courts have declared that these laws do not offend the Constitution. While this may be an exaggeration of the judiciary’s power, the availability of the courts gives real access to ordinary citizens with standing who may not have influence with the more political branches of government. Because we enjoy this accessibility to the judicial branch, the dual and hierarchical system of courts in the United States is truly Our Judiciary.

In the United States we have a dual judicial system – state and federal courts – and a hierarchical judicial system – decisions by lower courts may be reviewed by higher courts. Knowing that two basic court systems operate simultaneously is fundamental to understanding how Our Judiciary functions. Generally, state court systems have a hierarchical structure that begins with petty tribunals and ends with a court of final resort. In between these courts are courts of general jurisdiction and intermediate courts of appeal. In addition, some states have one or more specialized courts such as a probate court. The federal court system consists of federal district courts, circuit courts of appeal, and a Supreme Court. There are also several specialized federal courts handling matters ranging from bankruptcy to patents.