Fair Courts

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States make a big difference
Conflicts and punishment
Fair judging
Choosing judges
Deciding when majority rules
How the Court decides: what happened before
Using the Constitution: how and why

"There is hardly a political question in the United States which does not sooner or later turn into a judicial one," noted Alexis de Tocqueville, when he traveled from France to observe American society. This sentiment particularly rings true after the Supreme Court decided Bush v. Gore. The 2000 Election and the subsequent legal action, demonstrated the high degree to which politics and our legal system are intertwined. Over 150 years after Tocqueville studied America, his famous quote about the connectedness of our political and legal systems cannot be contested.

The Founding Fathers expected, through experience, that at times there would be unfair use of power. So, in order to have a fair government, they decided to design a system in which power was divided among three branches, the President, the Congress, and the courts. The theory behind making the courts one branch of the government was that the Supreme Court was supposed to be insulated from public pressure because, unlike the President and Congress, United States Supreme Court justices are not elected; they serve for life.

Therefore, what judges believe about equality for women makes a huge difference. Some judges maintain that since the Constitution does not specifically mention rights for women and sexual minorities, that they do not need special protection provided by laws or by amendments to the Constitution.

The "equal protection under the law" clause of the 14^th amendment regarding ex-slaves should satisfy gender and sexual orientation concerns, despite 140 years of unequal treatment and vast differences in power.

Each state also has both federal courts and state courts. While state courts hear a wide variety of issues, federal courts are limited to matters of federal laws, the Constitution or treaties, and disputes between people of different states.

Since each state often has different laws, it is possible that two people with the exact same problem, living in different states, can bring their problems to court and receive different verdicts. However, judgments rendered in each state are honored and enforced by other states. This is known as full faith and credit. It may not seem fair that a woman living in New York and a woman living in New Jersey could receive different treatment because of their respective state laws.

After all, the states of America are supposed to be "united".

The differences among states with respect to the law are due to our system of government. Our national government unites the states to a large degree but still grants each state some independence. This is federalism. The current Supreme Court reflects Chief Justice Rehnquist's belief that this country is a collection of states and that most of the power should lie with the states.

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If we did not have a court system, people would be forced to resort to their own methods for solving conflicts. Cases are essentially brought to courts in order to resolve some sort of a problem.

Under our system, there are two major types of cases: civil and criminal. The civil system is designed to make the people who were wronged feel whole, usually through the award of money. Whether the case involves a broken contract, a slip and fall or a wrongful death, plaintiffs seek some amount of money from the defendant.

By contrast, the criminal system is designed to punish people who have broken the law. The government, in the form of a district attorney, represents the victim, and punishment, better know as prison, is thought to physically prevent criminals from committing other crimes (incapacitation); deter them from committing other crimes once released (specific deterrence); deter others in the community from committing crimes (general deterrence); denounce crime in order to maintain societal norms (denunciation); rehabilitate criminals (rehabilitation); or give criminals their "just deserts"(retribution). These are known as theories of punishment.

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Fair courts have been an issue since the Bill of Rights was written over two hundred years ago. The Sixth Amendment calls for a fast and public trial with a jury. However, parties may waive their right to a jury trial and opt to have just the judge determine the verdict (a bench trial). When there is a jury, the jury determines the verdict and the judge determines the sentence or the damages awarded.

Either way, judges are influential. Even if a jury finds that, for example, a doctor negligently caused a patient's medical complications (to prove negligent behavior, the plaintiff must prove that the defendant had a duty to her; that the defendant breached this duty; that there was injury; and that the defendant's behavior was a not too indirect cause of the injury), the judge has the responsibility of deciding how much money should be awarded.

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Judges are selected either by election or by appointment. State judges, those working in state courts, can be elected or appointed by the governor and federal judges, those who work in limited jurisdiction federal courts, are appointed by the sitting President of the United States. Since these appointments are for life, unless the judge exhibits bad behavior or commits a crime, judges often remain on the federal bench long after a President has left office. The Supreme Court is, as its name indicates, the highest court of this land. BY PICKING A PRESIDENT, YOU ARE THEREFORE, BY PROXY, SELECTING FEDERAL JUDGES, INCLUDING SUPREME COURT JUSTICES (NOW HOW EMPOWERING IS THAT?).

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Though the number of justices has changed a few times in two hundred years, there are currently nine justices: one chief justice and eight associate justices. The justices receive petitions to review cases from lower courts and decide which cases they will hear. When they choose a case, they are granting a writ of certiorari.

In Supreme Court cases there are no jury and no witnesses. Normally, each side simply has a half hour to make its arguments. When the federal government is a party in a very serious or important suit, the Attorney General will represent the government and no one elects the Attorney General. A VOTE FOR PRESIDENT IS A VOTE FOR THE GOVERNMENT'S ATTORNEY. WHAT DOES THAT PERSON BELIEVE?

For each case the Court hears, it delivers an opinion(s). If at least five judges agree on an outcome, there is a majority. One person writes for the majority. Even if one or some of the justices agree with the outcome but for different reasons, they can write a separate opinion. This is called a concurrence. Justices who disagree write a dissenting opinion.

Since there are nine justices, a 5-4 decision is a good indication that the issue at hand is a very contentious judicial/political issue. Occasionally, the Court is so fragmented on a particular issue that a majority cannot be reached. If only four justices agree on the outcome, there is a plurality instead of a majority.

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As the highest court of the land, the Supreme Court must present itself as a valid and reliable institution. To achieve this end, the justices try to adhere to previous decisions that the Court has made. The doctrine of following precedents is known as stare decisis.

When reading a Court opinion (whether it be a majority, concurrence or dissent) it is important to look at the reasons given for the result that is reached. This means analyzing the argument to see if it logically flows. Also, it is good to look at the cases that the justices use to decide that particular case. Justices look for other cases that involved similar issues. They then look at the facts surrounding the past cases and the facts surrounding the present case to look for similarities and differences. This is called analogizing and distinguishing.

Though the Court does attempt to adhere to stare decisis, that is, what was decided in the past, there have been a couple of times when the Court actually overturned its own decisions. This generally occurs when there are policy changes or changes in society that warrant a different outcome. For instance, in Plessy v. Ferguson (1896), the Court held that the races could be legally separated as long as facilities in each community were equal. By 1954 when the Court decided Brown v. Board of Education, there was more of a societal recognition that keeping the races "separate but equal" was not feasible because keeping races separate demonstrates an inherent inequality.

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When deciding constitutional issues, judges have different approaches for interpreting the Constitution. Some judges are strict constructionists while others are judicial activists. Strict constructionists strictly adhere to the language of the Constitution. In other words, strict constructionists read the Constitution literally; they look toward the original intent of the framers of the Constitution. Other judges try to interpret the Constitution in a way that fits with the current state of society. These judges are judicial activists.

There is a major debate over which approach is best. For some issues, whether a judge reads the Constitution broadly or narrowly impacts the outcome of the case. For example, in Griswold v. Connecticut, a majority of the Supreme Court found that various amendments in the Bill of Rights create a zone of privacy which protects marital relations. Finding this, the majority struck down a Connecticut law that prohibited birth control. In his dissenting opinion Justice Stewart said that although the Connecticut law was "uncommonly silly", since the Constitution does not explicitly address privacy, he could not abolish the law.

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