A Fashionista's Guide to Politics: The US Judicial Branch

A Fashionista's Guide to Politics: The US Judicial Branch

The midterms were marked by emotion and change, from the start of campaigning to the counting of the final ballots. The number of firsts was unprecedented – the first Muslim woman in Congress, the first openly gay elected governor, the two first Native American Women in Congress – a sign that the voices of minority groups in America are finally opening the door. Another big change – the House of Representatives is now dominated by a Democrat majority, a shift after two years of a Republican majority in Congress.


As easy as it would be to focus only on the victories, the midterm results were not all good. The Republicans consolidated their hold of the Senate, conquering a larger majority than before, and the ‘blue wave’ expected to take place, failed to gain all that momentum. Trump’s firm grip on the Senate is very beneficial to his and the Republican agenda, as the Senate plays a key role in approving Presidential nominations to judges and officers. This makes it easier for Trump to fill the government with sympathising and like-minded colleagues. The government is in a similar situation as it was four years ago, with a gridlock between the Chambers – the Democrats control the House of Representatives, essential for the passing of legislation, whilst the Senate and Executive is controlled by Republicans. The Senate and the Executive are able to work together, as nominations proposed by President Trump require approval of the Senate. However, legislation can easily be blocked by an uncooperative House, increasing division and tensions between parties. The House of Representatives is concerned with the passing of legislation; if the House fails to debate or approve any legislation, then Trump depends fully on executive orders to govern the US. This was what happened after the midterms in Obama’s elections.


The elections also reflect a highly polarised and divided America. Teams with opposite views make very little progress. This can be very dangerous if those in question are the Federal Government and their decisions are affecting the lives of millions of Americans and beyond. Now, all eyes are on the Democrats and what they will do with their majority in the House of Representatives.


During the two first years of his term, Trump successfully nominated two Supreme Court Justices, Neil Gorsuch and Brett Kavanaugh. Supreme Justices are nominated for life, under the idealistic premise that their life-long nomination makes them unaffected by politics because they do not need the support of citizens or of any party to retain their role, giving them freedom to set and follow policies and abide by their own convictions. But the example of Kavanagh demonstrates the flip-side of this – the massive rejection of a man accused of committing sexual assault means nothing to his position and authority, given that the role is for life. More than anything, these elections have shown us the drastic divisions within government in society, and between society and government – the big question now is how to converge all the opposing views in an idea of what America should be.

The Judiciary Branch of the US Federal Government

The Judiciary branch of the United States Federal Government is responsible for enforcing laws created in Congress. Article III in the Constitution establishes the Supreme Court, and grants the Congress authority to create other federal courts and determine their jurisdiction. The Supreme Court has the highest authority, with the final say on all cases involving laws of Congress and most importantly, the laws of the Constitution. Cases tried by the Supreme Court involve sentence reviews, as is with the case with the Flowers vs. Mississippi case, in which the Mississippi Supreme Court’s application of the Batson v. Kentucky, 476 US 79 (1986) case is under review. Another example is the Madison vs. Alabama case, which questions the legality of applying the death sentence to Vernon Madison, who has been on death row for over 30 years after killing a police officer in 1985, but is now diagnosed with vascular dementia and is unable to remember the crime. This case invokes the Eight Amendment of the Constitution prohibiting excessive or cruel punishment.

Below the Supreme Court are the United States Courts of Appeals, which deal with appeals of rights made in district courts. The district courts are general federal trial courts and are the first point of contact in the federal legal system. Overall, the courts are required to try real cases and controversies, in which a party can prove they were harmed – they do not serve an advisory role or issue opinions on the constitutionality of laws or the legality of actions if the ruling would have no practical effect.

Despite the separation of powers, the three branches interact with each other to ensure the correct creation, delivery and enforcement of laws: federal laws are voted in Congress (legislative power) and signed by the President (executive power). In turn, the Supreme Court (judicial power) has the authority to determine the constitutionality of federal laws. Supreme Court Justices, courts of appeals judges and district court judges are nominated by the Presidents and confirmed by the Senate. In terms of court rulings – judges rely on the government’s executive branch to enforce court decisions by setting out strategies, policies and delivering the sentence proclaimed by the judge. The Constitution also grants the Congress power over determining the number of Supreme Court Justices, the power to establish Courts that are inferior to the Supreme Court. Congress also determines the jurisdiction of the federal courts, except in the dispute between to U.S. states, in which the Constitutions grants the Supreme Court Original Jurisdiction.

State Courts

It is important to understand the difference between federal courts and state courts: federal courts deal with federal laws, in other words, laws that are made in Congress within the Federal Government. State courts, on the other hand, are concerned with matters relating to the laws of the state. This website provides an illustrative example of the difference between both courts:

“Most criminal cases involve violations of state law and are tried in state court, but criminal cases involving federal laws can be tried only in federal court. We all know, for example, that robbery is a crime, but what law says it is a crime? By and large, state laws, not federal laws, make robbery a crime. There are only a few federal laws about robbery, such as the law that makes it a federal crime to rob a bank whose deposits are insured by a federal agency. Examples of other federal crimes are bringing illegal drugs into the country or across state lines, and use of the U.S. mails to swindle consumers. Crimes committed on federal property (such as national parks or military reservations) are also prosecuted in federal court.”

Where the jurisdiction of state and federal courts coincide, the plaintiff (the part who filed the lawsuit) is able to choose the court in which they will file the case. The decision of which court to use was solely in the hands of the party filling the claim, leaving the defendant was usually left without authority in deciding where they would be tried; to solve this issue, Congress established a procedure that allows the defendant to remove the case from the state to the federal court. According to Andrea Figler Ventura, then associate at Dykema Gossett LLP, removing a case to a federal court can be beneficial because federal judges tend to have more time to read through a case and analyse the motions that they will attend to.

The United States District Courts

The United States district courts are the general courts of the American court system, responsible for civil and criminal cases. There is at least one courthouse in every federal judicial district plus The District of Columbia and Puerto Rico and the Unites states Virgin Islands, Guam and Northern Mariana Islands, plus a United States bankruptcy court associated with each district court. There are also specialised Courts, such as the Court of International Trade, Foreign Intelligence Surveillance Court, the Alien Terrorist Removal Court, which deal with specific cases, usually directed to them by Congress.

Districts courts have limited jurisdiction compared to state courts, and have little freedom to chose what cases to hear – a freedom enjoyed by state courts. The district courts enjoy original jurisdiction over:

  • Issues involving the constitutionality of a law,

  • Cases involving the laws and treaties of the U.S. ambassadors and public ministers,

  • Disputes between two or more states, or between citizens of different states involving more than $75,000,

  • Admiralty law, also known as maritime law,

  • Bankruptcy cases.

The federal district courts also enjoy exclusive jurisdiction over case related to patent and copyright infringement disputes and prosecutions for federal crimes.

Cases tried in Federal Courts can be appealed, where the defendant challenges the sentence of the judge and asks the documents and evidence to be reviewed.

Courts of Appeals (or Circuit Courts)

The U.S. courts of appeals are considered the most influential courts in the country due to the size of their jurisdiction and the little check that they face from the Supreme Court, which chooses to review only 80 of the 7,000-8,000 cases that are petitioned for each term, effectively giving the courts of appeals a the final say in resolving disputes. There are thirteen courts of appeals in the U.S., and expect for the United States Courts of Appeals for the Federal Circuit located in Washington D.C., jurisdiction is determined geographically. The jurisdiction of The United States Courts of Appeals for the Federal Circuit is determined by topic, and it is the only appeal court able to deal with patent disputes.

Parties are able to appeal the ruling of district courts to the U.S. court of appeals located within the same federal judicial circuit, and their case will be reviewed and reconsidered by the court in charge of their jurisdiction.

The Supreme Court

The Supreme Court of the United States is the highest court and the only part of the federal judiciary specifically required by the Constitution.

In addition to hearing a selected number of cases which are filed, the Supreme Court has the important power of ‘judicial review’. This means that the Supreme Court has the authority to annul executive orders and legislation, if they are judged unconstitutional. For example, in 2015 the Supreme Court unanimously agreed that a town ordinance in an Arizona town, which placed restrictions on signs announcing church services, was unconstitutional. The case Reed v. Town of Gilbert, No. 13-502, saw a unanimous agreement and ruled for the town to repeal its restriction. 

The Constitution does not determine the number of Justices that should sit in the Supreme Court. Unless impeached, Supreme Courts Justices hold their positions for life. Currently, there are nine Supreme Justices, one Chief Justice and eight Associate Justice:

  • John Roberts, who acts as the Chief Justice

  • Clarence Thomas

  • Ruth Bader Ginsburg

  • Stephen Breyer

  • Samuel Alito

  • Sonia Sotomayor

  • Elena Kagan

  • Neil Gorsuch,

  • And very controversially, Brett Kavanaugh. 

The Constitution does not set specific qualifications for Justice nominees, and only requires that candidates should be nominated by the President and confirmed by the Senate. Candidates are not limited to judges, and prominent figures such as politicians, can also be nominated. In effect, the President may nominate whoever they want. However, for the President to make a nomination, there needs to be a vacancy, usually the result of the death, resignation or retirement of a sitting Chief Justice. Vacancies can also be a result of impeachment by the Congress, though this has only happened once, in 1804-5 with Justice Samuel Chase, who was later acquitted and so not officially removed from office.

Vacancies can also be a result of the Court being expanded. Since 1869, after a series of changes motivated by vacancies and political agendas, there have been nine justices to sit in the Supreme Court. Changing the size of the Supreme Court is a complicated matter, as it allows for the current President to appoint candidates who agree to their ideological and political beliefs, and can be used as a tool to consolidate influence. In 1937 President Franklin D. Roosevelt attempted to expand the Court to appoint new members who supported his ‘New Deal’ strategy. Roosevelt’s plan was for a new Justice would be appointed for every member who was over 70 years and 6 months of age, to a maximum size of 15 justices, under the guise of relieving the burdens of older members. This was rejected, and the number remained at nine.

Nomination process

The President only nominates candidates, and once formally nominated, candidates require formal confirmation from the Senate.

The first step is an investigation by the Judicial Committee, which conducts hearings and questions nominees to determine their suitability. Once the hearings have come to an end, the Committee will reveal whether the nomination will go to the Senate to be approved.

The vote on a nominee follows standard procedure, and a simple majority vote can confirm a nomination. Following the Senate’s role of checking government procedures, not all candidates who are approved by the Committee are approved by the Senate. During former President Barack Obama’s final year in office, in 2016, former Associate Justice Antonin Scalia passed away, leaving a vacant seat. Obama nominated D.C. Circuit Judge Merrick Garland for the vacancy, however the decision was met with resistance in the Republican-controlled Senate, which refused to debate the nomination, and beat the record for the longest time for which a nomination was held before Congress. Garland’s nomination expired with the end of the 114th Unites States Congress, leaving Trump the opportunity for nominating Judge Neil Gorsuch in 2017, who was approved by the Republican ruled Senate.

If the Senate agrees to a candidate with a simple majority, the Secretary of Senate then attests to a resolution of confirmation and transmits it to the white house. The President then prepares and signs a commission, and fixes the document with the United States Department of Justice seal, which has to occur before the Justice can take office. 

A ceremony is held in which the Justice must take the Constitutional Oath, which is used for every federal and state officeholder below the President, and the Judicial Oath used for federal judges before entering into the execution of their office.

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