If you page through the U.S. Constitution, it becomes obvious that the Founding Fathers viewed the federal court system as playing a minor role in the governance of the new country. The description and definition of the Congress is mentioned first, and its powers and responsibilities are presented in 10 very specific listings of duties and requirements for service. The executive branch is mentioned next with four sections, most of which are taken up with a discussion of the Electoral College and but one statement presenting powers and responsibilities. When the third branch of government is addressed, the judiciary is mentioned briefly defining the federal court system as made of “one supreme court and in such inferior courts as the Congress may from time to time ordain and establish.” There is a short listing of powers, but they are broadly stated and deal primarily with foreign matters and issues between the states.
While the third branch of government appears as an afterthought in the view of the writers of the Constitution, over time the judiciary, especially the Supreme Court, has emerged as a significant force for defining what the Constitution says and means and most importantly for creating a vision of national governance and societal change. The Supreme Court has decided hundreds of cases and settled legal arguments dealing with matters of personal freedoms of speech, religion, press and assembly, equal access to education, housing, employment, and pay, the power and rights of corporations, unions, political groups and social institutions, and expansions or restrictions on individual liberties. The third branch of government has in effect become a key public policy player in American government that often overshadows the Congress and the executive branch.
The federal judiciary is organized into three levels — 94 district courts (often termed the courts of first entry), where many of the legal issues and arguments begin, 13 appellate courts, which as the name suggests, decide appeals to lower court decisions, and the Supreme Court, the final arbiter of what the Constitution says and means. There are nine Supreme Court justices. Judges to the federal courts are appointed by the President and approved by the Senate; they enjoy lifetime service with little possibility of removal through impeachment, and their secretive deliberations and professional and personal conduct often keeps them protected from public scrutiny and criticism.
Because federal judges are appointed by the President and approved by the Senate, partisan politics plays a significant role not just in who gets appointed but how past judicial decisions might influence future decisions. For example, President Trump appointed three Supreme Court justices during his term as chief executive, all of whom were conservative in ideology and rendered past case decisions that might signal how they would vote on controversial issues such as abortion rights The hearings on the three appointments, which are required, were contentious as Democratic Senate minority members on the Judiciary Committee sought to raise questions about the suitability of the appointees and tried to marshal public opinion against the nominees. But with the Republicans in control of the Senate and the Judiciary Committee all three Trump appointees were approved.
The conservative tilt of the Trump appointed court led to one of the most controversial decisions in recent years as the Court in a vote of 6-3 — Dobbs v. Jackson Women’s Health — eliminated the constitutional right to abortion access and gave states the authority to ban abortion. The decision overturned the national right to abortion that stood since 1972 in the Roe v. Wade case and gave states, primarily in Southern and Western regions with Republican legislatures, the opportunity to pass laws that banned abortions for time periods beginning in some cases as early as six weeks. Many of these state laws made abortion access difficult if not impossible even if the pregnancy occurred as a result of rape or incest or endangered the life of the mother or the unborn baby. The Dobbs decision set off an avalanche of protest from advocates of a women’s right to choose whether to have an abortion and a series of court cases which sought to limit the time period to apply the law. But it was clear that the presidential power of appointing judges and Senate approval can have significant impacts on public policy and changes in the character of individual liberties, even liberties that were once encased in law.
One other case recently decided by the Supreme Court revealed that the conservative faction is not wedded to views that may benefit conservative state legislatures or overturn past precedents. In a case from North Carolina the Court in a 6-3 decision — Moore v. Harper — rejected what had come to be termed the “independent state legislative” theory which took the position that state courts had no authority to limit the power of state legislatures regarding federal elections. The decision was viewed as a win for advocates of election laws that are free of partisan interference. The six justices — two who were Trump appointees — joined the liberal bloc of three justice and the Chief Justice John Roberts- to argue that the state courts had the right to restrict the North Carolina legislature from passing laws designed to make it more difficult to conduct free, open and fair federal elections. The decision of the Court surprised liberals and critics of election interference who viewed the decision as a moderate response to a clearly partisan and conservative legal ploy that would likely weaken our democracy.
Each year the Supreme Court begins its official session in October ending in late June. During that time the Justices hear cases, some with momentous implications for the country and the American people, others with narrow technical impact. The justices often grill the legal representatives of each side of the dispute, retire to their offices to study the legal precedents and case law and then meet privately to take a vote and decide who will write the majority and minority opinions. The decisions that they make, whether momentous or technical shape the character and quality of life in our country and ensure that the federal courts, especially the Supreme Court, holds the position as an equal branch of government in a way not intended by the Founders of our country.