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Freedom Paper No. 4


THE ROLE OF THE INDEPENDENT JUDICIARY
By Susan Sullivan LagonIntroductionCourts and Democratic FreedomThe American Judicial SystemJudicial Power in Theory and PracticeEnsuring Judicial IndependenceLimitations on the JudiciaryConclusionThe French Judicial System in BriefTwo Decisions of the U.S. Supreme
CourtJudicial Organization in the United StatesMeasures of Judicial IndependenceCourts in VenezuelaGlossaryBibliographyContactsAbout the Author | THE ROLE OF THE INDEPENDENT JUDICIARY
By Susan Sullivan LagonIntroductionCourts and Democratic FreedomThe American Judicial SystemJudicial Power in Theory and PracticeEnsuring Judicial IndependenceLimitations on the JudiciaryConclusionThe French Judicial System in BriefTwo Decisions of the U.S. Supreme
CourtJudicial Organization in the United StatesMeasures of Judicial IndependenceCourts in VenezuelaGlossaryBibliographyContactsAbout the Author
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|THE ROLE OF THE INDEPENDENT JUDICIARY
By Susan Sullivan LagonIntroductionCourts and Democratic FreedomThe American Judicial SystemJudicial Power in Theory and PracticeEnsuring Judicial IndependenceLimitations on the JudiciaryConclusionThe French Judicial System in BriefTwo Decisions of the U.S. Supreme
CourtJudicial Organization in the United StatesMeasures of Judicial IndependenceCourts in VenezuelaGlossaryBibliographyContactsAbout the Author

Disputes are an inevitable consequence of social interaction in
every society.  As an alternative to violence, governments have
established judicial systems for the purpose of dispute
resolution.  Before resolving conflicts, courts must first
determine what the law is.  This role is especially important in
a constitutional democracy where laws are made by popularly
elected representatives who are required to express the will of
the majority while at the same time respecting the rights of the
minority.

Impartiality is certainly one of the major goals of law courts. 
Most democratic governments try to maintain their judicial
systems' objectivity by deliberately insulating courts from
external influence, either from other governmental sources such
as legislative, executive, or administrative authorities, or from
private interests attempting to exert economic, social, ethnic,
religious or regional pressure on judges.  Judicial independence
is essential to the courts' integrity and credibility within a
political system.  That independence has two key components:
decisional independence, defined as respect for and
compliance with the courts' decisions, and structural
independence, which means freedom from political leaders'
interference in the selection, promotion, compensation, and daily
operations of judicial personnel.  Independent organizations such
as Amnesty International and Freedom House confirm that in modern
governments, a high degree of judicial independence correlates
closely with political stability, respect for human rights, and
the vitality of other democratic institutions.

The motto of the U.S. Supreme Court, "Equal Justice Under Law,"
embodies the objectives of the judiciary in a democratic society.

Because U.S. courts enjoy a level of influence and respect
unequaled anywhere else or at any other time in history, it is
appropriate to focus on the American judiciary as an example of
judicial independence.

Courts and Democratic Freedom

Establishing a separate, distinct judicial branch of government
responsible for upholding the Constitution as the supreme law of
the land is a unique American contribution to political theory,
and one that is attracting increasing attention from abroad. 
Indeed, it was a revolutionary idea in the late 18th century,
especially when contrasted with the notion of parliamentary
supremacy so familiar in Great Britain.  Under British practice
the sovereign authorizes Parliament to act as the ultimate
arbiter of decisions made under an unwritten constitution,
whereas American practice regards the written Constitution itself
as sovereign.  No political power can supersede it, and the
independent judiciary, rather than the elected legislature,
serves as its interpreter.

Far from a threat to popular will, a separate judicial branch was
designed to guarantee democratic freedoms by preventing the
concentration of power in government.  It plays a vital role in
maintaining the delicate balance between the separated powers. 
As Alexander Hamilton explained in "Federalist 78," one of a
series of newspaper editorials written in support of the proposed
Constitution in 1788: "[T]he judiciary, from the nature of its
functions, will always be the least dangerous branch....The
judiciary...has no influence over either the sword or the purse;
no direction either of the strength or the wealth of the society,
and can take no active resolution whatever.  It may truly be said
to have neither Force nor Will but merely judgment...."

Making the judiciary directly accountable to either the
legislative or executive branches--for example, by subjecting
judges' terms of office to periodic renewal by the political
branches--would endanger the system of separated powers.  It
could tip the balance too far in favor of one of the other
branches, and it would likely risk greater introduction of
partisan concerns into the judicial process.

Yet commentators have long pointed out that the American
independent judiciary has not been able to avoid political issues
even if it has eschewed openly partisan decision-making.  Already
in 1835, Frenchman Alexis de Tocqueville noted, "Scarcely any
political question arises in the United States that is not
resolved, sooner or later, into a judicial question."  History
has further confirmed that the U.S. judiciary has a powerful
impact on public policy even though it is not technically
accountable to the political branches of government.

Understandably, this is puzzling and perhaps even troubling to
many international observers.  While they recognize the need for
constitutional limits on governmental power, they are less
convinced that the courts should enforce constitutional
supremacy.  After all, why are judges--who are appointed for life
terms and usually from an elite stratum of society--more suited
to the task than elected representatives who are more accountable
to the people?  The answer lies in the fact that the United
States is a constitutional democracy, which requires that
majority rule be balanced with minority rights.

The counter-majoritarian nature of the judiciary is actually an
advantage rather than a flaw.  Limits on governmental power and
guarantees of individual rights would be meaningless without some
institutional means of curbing the power of the majority.  The
judiciary, therefore, is the perfect vehicle for protecting
minority rights while the other two branches are more responsive
to the majority.  Unlike other officeholders, judges have no
constituents; they "represent" the Constitution and derive their
authority from it.

The judiciary itself has defended this view.  Since the 1930s,
courts have focused more on cases involving civil rights and
liberties while leaving other policy issues to the majoritarian
political branches to decide.  This approach has proven popular
with the public, which in turn confers widespread support upon
the courts.  The difficulty of reconciling democracy with the
operations of courts can be overwhelming in countries where
courts are suspect.  In some cases, the judiciary has been linked
to predemocratic regimes and monarchical or aristocratic powers,
or it has been tainted with politicization or a legacy of
hostility to progressive reforms.  In contrast, the American
judiciary has been an integral part of limiting governmental
power.  By enforcing contracts and creating a climate of
stability and predictability for business, the courts have also
played a key role in promoting economic development.

The American Judicial System

The American legal system is adversarial in nature.  Unlike many
Eastern systems where disputes have traditionally been submitted
to arbitration in the interest of social harmony, Western systems
such as Great Britain, Canada, Australia and the United States
have embraced the adversarial judicial process.  As a result,
lawyers and judges play a much larger role in society and many
grievances are defined in legal terms as "causes of action"
appropriate for litigation.  American courts handle almost 100
million legal cases each year.  Legal language permeates everyday
life, and the "courtroom drama" is a popular literary genre.

The adversarial system is based on partisan presentations of
evidence most favorable to each side and assumes that
self-interest will prevent any relevant facts and arguments from
being overlooked.  The judge is not an active investigator as is
common in inquisitorial systems such as France's, but rather a
neutral umpire, a tradition that dates back to Rome in the fourth
century B.C.  In both civil and criminal cases, the judge
enforces strict rules about what evidence is allowable and how
cases are conducted, and rules on objections raised by either
litigant.  In criminal cases, the burden of proof rests upon the
state, which by definition prosecutes them; the accused is
presumed innocent until proven guilty "beyond a reasonable
doubt."

In addition, those accused of wrongdoing enjoy several other
protections including the right to be informed of the charge, the
right to refuse to answer questions, the right to be represented
by a lawyer and to question witnesses during a trial, and the
right to a prompt, public trial by jury.  Jury trials are a
hallmark of adversarial systems but are not limited to such
systems.  They are used in Austria, Belgium, Denmark, Greece, and
Norway, as well as in some Latin American countries and Swiss
cantons.  The practice originated in ancient Athens, when a group
of ordinary citizens of a predetermined number was called
together by a duly constituted public official for the purpose of
answering a specific question, usually whether the accused was
guilty or not guilty.

All trial courts in the United States have "original
jurisdiction" to hear cases in the first instance; that is, they
are empowered to originate the case.  They are interested
in establishing a factual record of the disputed events based on
proper procedures.  Litigants take turns presenting evidence and
arguments.  On the basis of that record, the judge (often with a
jury) determines the appropriate outcome of the case.  A trial
court's decision (known as a "verdict" in a criminal case and a
"judgment" in a civil suit) may be appealed to a higher court,
which has "appellate jurisdiction."

The appellate court must accept the lower court's reconstruction
of the facts and may consider only questions of law,
including procedural matters that arose during the initial trial.
For example, appellate courts do not employ juries, but they may
properly inquire about the procedures used to select the jury
that rendered the decision in the trial stage, or the
instructions the trial judge gave to that jury, or any
allegations of jury bias.  Citizens are constitutionally
protected from "double jeopardy," that is, being tried more than
once for the same offense before the same level of tribunal.

Because the United States is a federal rather than a unitary
system, the 50 states (roughly equivalent to provinces elsewhere)
are not dependent on the central government for their powers.  In
fact, the Constitution makes clear that, instead, the people of
the states have delegated certain powers to the central, or
federal, government while reserving all remaining authority for
the states and the people.

Just as each state legislates as it sees fit, each state has its
own court system responsible for interpreting and enforcing state
statutes and constitutions.  Although the Constitution is supreme
law and the U.S. Supreme Court has jurisdiction over state
courts, only a tiny fraction of legal cases come before a federal
court; almost 99 percent of American cases are handled in state
courts.

Most crimes and violations of private rights, as well as civil
law cases, are matters for state court adjudication.  The
Constitution limits federal court jurisdiction to cases involving
the Constitution, federal law, treaties, admiralty and maritime
law, and cases where ambassadors, the federal government, or two
or more states are parties.  The federal courts have exclusive
jurisdiction over bankruptcy, patent, and copyright law.  They
share concurrent jurisdiction with states over suits between
citizens of different states, in which federal judges apply the
appropriate state law, and cases involving the Constitution and
federal laws, in which state judges must apply federal law.
Article VI of the Constitution binds all judges to recognize the
Constitution as "the supreme Law of the Land."

States are free to structure their judicial systems as they
choose.  Most have chosen a four-tier model.  At the lowest level
are courts of limited jurisdiction, which hear minor civil and
criminal cases, for example, traffic, juvenile, and small claims
courts which settle disputes involving small sums of money. 
These are the "workhorses" of the state judicial system,
processing the bulk of the state's legal cases.  The next level
consists of state courts of general jurisdiction.  These are the
major trial courts empowered to hear more serious criminal cases
and civil cases in which large sums of money are involved.  Most
states have a third tier, the intermediate court of appeals, as
well as a top level, the state supreme court.  Legal custom
grants each losing litigant (with the notable exception of the
prosecution in a criminal case) one appeal.  In states without an
intermediate appellate court, the state supreme court must hear
these appeals.

Another detail left to the states' discretion is the method of
selecting judges.  While all federal judges are appointed for
life terms by the U.S. president with the consent of the Senate,
five methods are currently in use selecting judges in the states:
partisan elections, nonpartisan elections, election by the state
legislature, appointment by the governor, and the merit system. 
The last method is the most popular and is sometimes called the
"Missouri Plan" after the first state to adopt it.  Judicial
nomination boards screen applicants of judicial posts and send a
list of the three to five best qualified candidates to the
governor of the state, who makes the final choice.

The federal judicial system is composed of three tiers.  The
major trial courts are known as U.S. district courts.  There are
94 of them.  Each state has at least one, and no district court's
jurisdiction includes more than one state.  District court cases
are usually heard by a single judge, who must be a resident of
the district in which he or she presides.  In addition to the
district courts, several special courts created by Congress have
original jurisdiction over certain types of cases, for example,
tax courts, customs courts, and courts martial (military
tribunals).

Decisions of the district courts, special courts, administrative
agencies, and state supreme courts may be appealed to the 13 U.S.
courts of appeals.  Colloquially known as "circuit courts," these
appellate tribunals also respect state boundaries with several
states comprising one federal judicial circuit.  There is a
separate court of appeals for the District of Columbia and
another called the Federal Circuit, both of which handle appeals
generated by agencies of the federal government.  Judges on these
courts usually sit in panels of three; for especially
controversial cases, all the judges on the circuit will hear the
case together en banc, although this is very rare.

At the apex of the federal judicial system is the U.S. Supreme
Court.  Although its original jurisdiction is constitutionally
specified as extending to cases involving two states (for
example, boundary disputes), those between a state and the
federal government, and those involving foreign ambassadors, it
is primarily an appellate court with discretion over its own
docket.  The Supreme Court serves as the court of last resort for
all legal cases in the United States, including matters of
administrative law and constitutional questions.  Issues of
constitutionality can only be addressed if they are
"justiciable," that is, presented to the Court in the context of
a legal controversy by actual parties asserting a legitimate
injury for which the court can provide a suitable remedy.

Of the literally thousands of requests for review filed each
year, the Supreme Court chooses about 300 cases to consider on
their merits.  Four of the Court's nine justices must agree that
a case warrants Supreme Court review.  In selecting which appeals
to consider, the justices look for those in which a substantial
federal question is presented, or two lower courts have reached
conflicting conclusions over the same issue or a lower court has
ruled on a matter that the Supreme Court has not yet settled in
an earlier case.

Oral arguments of the cases are open to the public and scheduled
during the Court's regular term from October through April every
year.  The Supreme Court sits en banc rather than in
smaller panels, and at least six of the nine justices must be
present to hear a case.  About 150 cases are argued and decided
in written opinions which serve as precedent for future cases. 
Approximately the same number are decided summarily without oral
argument or formal written opinions.

Decisions need not be unanimous; they are based on the will of
the majority.  The justices write and sign their opinions, which
can either concur with or dissent from the decision.  The
opinions are all circulated among the justices and subsequently
published.

There is only one main opinion explaining the majority's
rationale for its holding; it is often called the "controlling
opinion" because it alone serves as precedent for future cases. 
Separate opinions are not perceived as weakening the judiciary,
but rather as the basis for robust dialogue among legal scholars.
It is the prerogative of the chief justice to assign opinion
writing if he is in the majority on a case; if he is in the
minority, the duty falls to the most senior justice in the
majority.  Balancing workloads and deferring to certain justices'
special areas of expertise are among the factors considered when
opinions are assigned.

The United States Supreme Court enjoys a high level of respect
and prestige even though the public is not very knowledgeable
about its actual workings or decisions.  Despite this lack of
awareness, opinion surveys consistently reveal greater public
confidence in the Supreme Court than in the Congress or the
presidency.

Judicial Power in Theory and Practice

The American judiciary exercises its greatest power through
judicial review, the authority to declare acts of states,
Congress, the presidency, or administrative agencies
unconstitutional.  Interestingly, the term "judicial review,"
like the word "democracy," is conspicuously absent from the U.S.
Constitution.  There is no doubt, however, that the Founders were
familiar with the concept.  By the time the Constitution was
drafted in 1787, eight of the 13 states had incorporated judicial
review into their own constitutions, and more than half of the
delegates to the Constitutional Convention supported it.  Of
course, the practice was not without its critics, including
Thomas Jefferson, who attacked judicial review as undemocratic,
elitist and violative of separation of powers.  Its absence from
the text of Article III of the Constitution is probably due to
the resistance the provision might have encountered from the
states, who would be reluctant to ratify a document giving the
national Supreme Court authority to nullify state action.

In the rather unlikely legal case of Marbury v. Madison in
1803, a unanimous Supreme Court speaking through Chief Justice
John Marshall declared that "an act repugnant to the Constitution
is void" and that it was the judicial branch that should make
that determination.  The case arose from a provision of the
Judiciary Act of 1789, which gave the Supreme Court original
jurisdiction to issue writs of mandamus ordering government
officials to perform their duties.  William Marbury had been
appointed a justice of the peace by outgoing President John Adams
but never received his commission.  He brought suit asking the
Supreme Court to issue a writ to the new secretary of state,
James Madison, forcing him to deliver the commission.  Chief
Justice Marshall, also appointed by Adams, was sympathetic to
Marbury's plight but refused to comply with the request, arguing
that the disputed Section 13 of the Judiciary Act gave the
Supreme Court a power not sanctioned by the Constitution and was
therefore void.

In the process of humbly refusing to accept Congress's grant of
authority to issue writs of mandamus, Marshall thus assumed a
much greater power for the Court: that of judicial review.  In
the opinion, he said, "It is emphatically the province and duty
of the judicial department to say what the law is....This is the
very essence of judicial duty."  The case is a landmark in
American jurisprudence and has been cited in judicial decisions
in India, Italy, and Japan as well.

In theory, judicial review can be exercised by any court.  In
practice, however, if a lower court declares something
unconstitutional, a higher court is certain to review the
decision.  Because judicial review is not expressly conferred in
the Constitution, a divergence of approaches to its use has
developed.  Proponents of "judicial activism" encourage judges to
use judicial review aggressively to ameliorate social problems
wherever and whenever possible.  Because the judges are not
elected, they can focus on what is "right" even if that is not
necessarily popular.  Judicial review, they argue, allows the
courts to be a counterweight to the other branches.  Moreover,
without it the judiciary would be too weak to play its role in
the system of separated powers.

This view is challenged by advocates of "judicial
self-restraint," who prefer a limited use of judicial review.  If
courts act too rashly, they contend, the other branches will
retaliate by imposing limits on the judiciary.  They stress the
democratic element of this approach as well, which opts for
deferring to the popularly elected legislative and executive
branches, rather than relying on the judgment of the appointed
judiciary.  Judicial review is valuable as a deterrent, because
the states and other branches must take it into consideration
before they act lest they risk the courts' rebuke.

Regardless of which approach they support, legal scholars all
recognize that judicial review is not exercised lightly.  Most of
the federal courts' workload involves statutory construction,
that is, saying what specific laws mean.  Judicial decisions of
this sort can be easily overridden with the passage of new
legislation, which courts are then bound to uphold and apply. 
The federal bench's most important function is constitutional
interpretation, giving meaning to specific constitutional
provisions.  Judicial review--in effect saying "no" to other
branches of government--is practiced extremely rarely in
comparison.  And, with some very significant and notable
exceptions, courts in the United States usually sustain
challenged governmental actions.  In so doing, they validate the
government's status and legitimacy and provide an important
element of political stability.

Full-scale judicial review exercised by ordinary courts within
the regular judicial hierarchy exists in only a handful of
countries, including Australia, Brazil, Canada, India, Japan, and
Pakistan.  Several other countries, such as Austria, France,
Germany, and Italy, have special constitutional courts that
convene for a similar purpose.

It is interesting to note that judicial review is not synonymous
with judicial activism, either.  For example, while Swedish and
Japanese law formally provides for judicial review, the Supreme
Court of Sweden has never found a law passed by the Riksdag
unconstitutional, and only rarely has the Japanese Supreme Court
invalidated an act of the Diet.  In Israel, by contrast, there is
no provision for judicial review but the Supreme Court has
assumed a very prominent role within the system.

Ensuring Judicial Independence

If the exercise of judicial review is to be effective, judicial
independence is essential.  One of the key components of
maintaining independence on the federal bench is life tenure. 
The constitutional provision stating that federal judges shall
hold their positions "during good behavior" was one of the first
items to be agreed upon by the delegates to the U.S.
Constitutional Convention.  Alexander Hamilton echoed this
sentiment in "Federalist 78," explaining that because "nothing
can contribute so much to [the judiciary's] firmness and
independence as permanency in office, this quality may therefore
be justly regarded as an indispensable ingredient."

Originally, judges in the American colonies served "during good
behavior," but in 1761, this was changed to "during the royal
pleasure" making magistrates entirely dependent on the king.  In
fact, this grievance was one of many cited against King George
III in the Declaration of Independence in 1776.  The king was
accused of "obstruct[ing] the administration of justice by
refusing his assent to laws for establishing judiciary powers. 
He has made judges dependent on his will alone for tenure of
their offices, and the amount and payment of their salaries."

Like presidents and other high-ranking government officials
federal judges may be removed only by impeachment and conviction
of "treason, bribery, or other high crimes and misdemeanors."  
Judicial impeachments are conducted by the House of
Representatives and require conviction by the Senate.  They are
very rare.  The process is deliberately difficult, to guard
against judges being impeached for political reasons or being
challenged by their philosophical opponents.

Despite history and constitutional command, some argue against
life tenure for federal judges.  Fixed terms, they assert, would
allow for periodic performance review, greater accountability for
their decisions, more coherent policymaking with a candid
acknowledgment of the judiciary's political role, and more
innovation due to the continual influx of new judges.  Most
conclude that the disadvantages of fixed terms still far outweigh
any benefits.  Obviously, judges would sacrifice some
independence.  They might "campaign" by allowing political
factors to influence their decisions or curry favor for future
posts off the bench.  Presidents could use appointments as
political rewards, and judges would become more attentive to
trends in the popular mood rather than preserving the
Constitution.  There seems to be no real problem with
incompetence on the bench now, so the higher turnover of judicial
personnel would deprive the courts of maturity and experience
among its members.

Article III of the Constitution further ensures that compensation
for federal judges "shall not be diminished during their
continuance in office."  Neither Congress nor public opinion can
"punish" a judge for an unpopular decision by threatening his
paycheck.  With an assured salary and permanent tenure in a
respected office, judges have no real incentive to abuse
authority so they are much more likely to discharge their duties
faithfully.  Similarly, judges cannot be sued for their official
actions; in 1868, a court ruled that all judges are "exempt from
liability in a civil action for acts performed in the exercise of
their judicial functions."

Judicial independence is also enhanced by the selection process
for federal judges.  Federal judges are appointed by the
president when vacancies occur.  They must be confirmed by a
majority vote in the Senate before taking office.  Presidential
appointments of judges leave a visible and important legacy, so
presidents carefully consider those whom they select, especially
for the Supreme Court.  Among the criteria presidents look for in
a judicial nominee are judicial philosophy, reputation, judicial
record (if any), experience, ideology, partisan background,
personal friendship and loyalty, representation of different
groups within a diverse society, and qualifications based on
ratings issued by private groups such as the American Bar
Association, the legal professional association.

Judges in the United States receive no special training beyond
that of lawyers, which is a juris doctor degree earned after a
rigorous three-year graduate program at a law school. 
Experienced lawyers consider a judicial post the pinnacle of
their legal careers, and the appellate courts attract the best
practitioners in the profession.  Because the United States is
the most litigious country in the world, there is no shortage of
lawyers.  They generally enjoy high status and income and are
part of a social elite.  This is even more pronounced for judges,
who are called "your honor" in court and are considered more
prestigious than civil servants or politicians.

Judges are respected for their learning, experience, and
impartiality.  As a result, they are often asked to serve in a
variety of public capacities, such as participating on a
presidentially appointed commission.  For example, former Justice
Robert H. Jackson was chosen as the chief prosecutor at the Nazi
War Crimes trials in Nuremberg following World War II, and former
Chief Justice Warren Burger was asked to head the United States
Constitution Bicentennial Commission.

Limitations on the Judiciary

While the American judiciary is one of the strongest in the
world, its power is by no means unlimited.  There are numerous
checks on its authority, some constitutional, some statutory, and
some customary.

Article III of the Constitution spells out jurisdiction and
limits the courts to hearing actual cases or controversies, that
is, real legal disputes.  The courts have interpreted this to
mean that they may not render advisory opinions nor advise
government officials or private parties on hypothetical cases.

Unlike the other two branches, the judiciary is reactive rather
than active.  It must wait for cases to come before it and cannot
initiate litigation.  This limitation on the courts can also be
an advantage in that it provides a "cooling off period" so that
inflammatory issues may be considered more rationally.  Studying
this phenomenon in new democracies around the world in the 1990s,
political scientist Bruce Ackerman writes: "Quite simply, if a
court must wait for a specific complaint by an ordinary
individual, it may take a while before a bitterly politicized
dispute makes its way into the judge's chambers.  This delay
provides the court with a valuable political resource in its
struggle to sustain itself as part of the new constitutional
order....A judicial decision that could have propelled the court
into a losing battle with an outraged parliamentary majority
might, two years later, be received in a more measured way.  The
pause may also permit the court to make a better decision--giving
it a perspective easily abandoned in the heat of a partisan
contest."

The Constitution also provides several checks on the judiciary to
be exercised by the other branches to maintain the system of
separated powers.  No one ascends to a federal judgeship without
presidential appointment and Senate approval.  The executive has
the power of granting pardons and reprieves of judicial
sentences, an especially significant check on state judiciaries
when exercised by governors.  Presidents have this same power but
use it less often.  Perhaps the most important influence the
president exerts over judicial authority is the enforcement
power.  After all, judicial decrees would be taken far less
seriously were it not for swift and certain enforcement carried
out by the executive branch.

Congress has even more external controls over the courts.  The
Senate can reject a nominee, although this has happened in fewer
than 10 percent of all Supreme Court appointments.  Congress can
impeach judges, also a rarely invoked but important check.  It
can effectively nullify a court's interpretation of a statute
simply by  passing a new law, and it can react to a court's
constitutional interpretation by introducing a constitutional
amendment, which it has done on several occasions, four times
successfully.

The legislative branch is also empowered to change the federal
courts' appellate jurisdiction.  Because so much of the federal
docket involves appeals, any limitations imposed by Congress
could strip the court of much of its caseload.  Congress has
exercised this power only once, during the Civil War in the
mid-19th century.  The Supreme Court upheld the action as a valid
exercise of congressional authority under the Constitution. 
Congress can also expand or contract the size of the federal
judiciary, including altering the number of justices on the
Supreme Court.  While it often creates new district court
judgeships, it has not changed the number of Supreme Court
justices since 1869, when nine became the standard, nor is it
likely to do so.

Just as judges are aware of external checks on their power, so
too are they mindful of self-imposed limitations.  Naturally,
their own notions of the proper judicial role constrain their
actions somewhat.  But specific legal requirements and judicial
doctrines also matter a great deal.  For example, the courts will
try to avoid ruling on cases they categorize as "political
questions," which are more properly resolved by the elected
branches.  Another doctrine is that of stare decisis,
literally meaning "let the decision stand," or following
precedent in similar cases.  Decisions of higher courts are
binding on lower courts, but stare decisis implies that
decisions of a higher court will be binding on future cases in
that same court as well.  This is a custom, not a rule, but one
upon which the stature of the law depends if it is not to be
viewed as arbitrary.  Courts can and do overturn their previous
decisions, but because of the norm of adherence to precedent,
"the law" is relatively slow to change.  Combined with the long
tenure of judges, there is an important institutional memory
available for judicial decision-making and a continuity that
further strengthens support for the courts.

Conclusion

Reduced to their most basic purpose, all courts in all political
systems exist to resolve disputes.  Conflicts presented before
judges range from minor squabbles among private parties to the
scope and legitimacy of governmental action at the highest
levels.  Whether judges use written constitutions, elaborate
legal codes, a common law tradition, or religious texts, their
decisions must be based on some generally recognized and approved
standard if they are to endure.  By removing courts from the
daily political pressures and rapidly changing social forces
confronted by other government leaders, societies can best
preserve the element of judicial independence so vital to stable
political systems.

THE FRENCH JUDICIAL SYSTEM IN BRIEF

While American courts are based on the English common law
tradition, French courts practice Roman law.  The French model is
more prevalent around the world today than the Anglo-American
judicial system.  No doubt this is due largely to the impact of
the massive Napoleonic Code, an extensive collection of civil,
criminal, penal, commercial, and procedural laws drafted under
the direction of French Emperor Napoleon Bonaparte between 1804
and 1815.  The courts administering the law in France are
exceptionally complex, a structure the government defends as "the
product of successive contributions from centuries of our
history, and in it, tradition continues to play a very important
role."

France distinguishes between ordinary or regular courts (which
handle civil and criminal law) and administrative courts (which
deal with cases involving governmental regulations).  In cases of
conflict over jurisdiction, the eight-member Tribunal of
Conflicts, headed by the minister of justice who casts
tie-breaking votes, decides which court gets the case.  At the
apex of the system is the Supreme Court of Appeal (Cour de
Cassation), which has final jurisdiction in civil and criminal
matters on points of law, and enjoys great prestige and respect. 
Jurisdiction is strictly appellate, and the court is divided into
five sections (family, property, commercial, social, and
criminal) with 15 judges, each headed by a president.  Seven
judges are required to hear a case.  The Supreme Court of Appeal
has no power of judicial review.  It possesses only the power to
quash (Cassation comes from the French word "casser," to break)
the legal case and remand it to a different lower court for
retrial.

French courts are very protective of their independence. 
Following a long tradition, administrative law is largely
judge-made rather than codified in statutes passed by a
legislative body.  Administrative courts are generally regarded
as rapid, convenient, and efficient.  Even though they are more
closely associated with the executive than the judicial branch,
it is usually the citizen who prevails in legal cases.  The
powerful Council of State at the top of the system can review the
decisions of the regional tribunals.  Administrative courts may
annul illegal action or require payment of damages to
individuals.  Citizens need only file an official complaint (at
very low cost) and an investigation ensues, sometimes followed by
an oral hearing.  The tribunal renders its decision publicly.

The practice of handling legal cases according to written codes
lessens the potential for political influence on judicial
decision-making.  Judges are nonpolitical appointees recruited
through a competitive examination following special training. 
Their prestige is not as high as in countries where they are
selected from a social elite, but they do develop a sense of
esprit de corps because lawyers and politicians do not aspire to
posts on the bench.  Judges are removable only for misconduct in
office, ill health that impedes their ability to perform their
duty, and mandatory retirement at age 67 (70 for those on the
Supreme Court).

The Constitution of 1958 names the president of the republic as
the "guarantor of the independence of judicial authority."  
Although in theory the judiciary is independent, in reality the
promotion of judges can be political because presidents face 
temptation to reward loyalty and conformity.  As a result, there
is public skepticism about judicial independence, and only half
the people see the courts as independent of the government.  Of
course, this is also due to the fact that courts are perceived as
a public service, much like the postal service.  The Ministry of
Justice has a small budget and even has to advertise in
newspapers and magazines to recruit judges.

Another limitation on the influence of judges in France is the
judiciary's historic unpopularity.  Before the French Revolution
in 1789, courts were despised for their anti-egalitarian
attitudes.  Because the French system is inquisitorial rather
than adversarial, there is no presumption of innocence in court. 
The judge decides if there is sufficient evidence for a trial,
and if so, conducts it and interrogates witnesses.  Decisions are
made in panels anonymously and minority opinions are forbidden. 
Judicial operations are supervised by the Council of the
Judiciary, presided over by the president and the minister of
justice.  It advises the president and also serves as a
disciplinary body.  Its nine members are appointed by the
president for four-year terms.

Significantly, the Supreme Court does not have jurisdiction over
constitutional matters.  There is a High Court of Justice which
can try members of government for high crimes and misdemeanors,
but it can only be convened when indictments have been voted by
majorities of both the Senate and the National Assembly.

The only body with the power of judicial review is the
Constitutional Council.  It is comprised of all former presidents
of the republic and nine other members who are appointed for
staggered nine-year terms by the president and the two
legislative chambers.  Although technically it is empowered to
declare laws, treaties, appointments, and procedural rules
unconstitutional, it operates under some important constraints. 
Access to it is very limited.  Private groups or individuals
cannot challenge the constitutionality of a statute; only the
president, prime minister, and presidents of the two legislative
chambers are entitled to do so.  There is a time limit as well: 
challenges must be made between the time parliament approves a
bill and its promulgation.  Moreover, only the substance of a
statute and not its procedural application can be challenged.

Like many countries, France has a strong commitment to respecting
the people's preferences as expressed through the legislative
branch.  The enduring quality of its courts, and especially its
unique administrative court system, help to reinforce support for
judicial independence.

TWO DECISIONS OF THE U.S. SUPREME COURT

Two landmark criminal law cases heard by the U.S. Supreme Court
illustrate how the majority justices support their decisions and
how the dissenting justices make their opposing arguments.

Gideon v. Wainwright, a 1963 case, established the vital
principle that the right to legal representation, even for those
who cannot pay for it, is an essential part of the right to a
fair trail mandated by the Constitution.  Gideon, the defendant,
had been denied the right to counsel and was forced to defend
himself in court against the charge that he broke into a pool
room intending to commit a misdemeanor.  After being convicted,
he appealed to the Florida Supreme Court, contending that by
refusing to appoint a lawyer to represent him, the court had
denied him the right to a fair trail.  The Florida Supreme Court
disagreed, and Gideon, in a handwritten document, appealed his
case to the U.S. Supreme Court, which unanimously sided with him.

In the majority opinion, Justice Hugo Black explained the
reason for the Court's decision: "Governments, both state and
federal, quite properly spend vast sums of money to establish
machinery to try defendants accused of crime.  Lawyers to
prosecute are everywhere deemed essential to protect the public's
interest in an orderly society.  Similarly, there are few
defendants charged with crime, few indeed, who fail to hire the
best lawyer they can get to prepare their defenses.  That
government hires lawyers to prosecute and defendants who have the
money hire lawyers to defend are the strongest indications of the
widespread belief that lawyers in criminal courts are
necessities, not luxuries.  The right of one charged with crime
to counsel may not be deemed fundamental and essential to fair
trials in some countries, but it is in ours.  From the very
beginning, our state and national constitutions and laws have
laid great emphasis on procedural and substantive safeguards
designed to assure fair trials before impartial tribunals in
which every defendant stands equal before the law.  This noble
ideal cannot be realized if the poor man charged with crime has
to face his accusers without a lawyer to assist him."

In 1966 the Court further spelled out the rights of the
criminally accused in its opinion for the case Miranda v.
Arizona.  After being identified by the victim of a
kidnapping and rape as the perpetrator of the crime, Miranda was
interrogated by police officers.  Miranda initially denied having
committed the crimes, but after two hours of questioning, he
confessed.  The U.S. Constitution protects individuals from being
compelled to incriminate themselves, and the Court in this case
held that the atmosphere created by in-custody interrogation
could be considered unfairly compelling.  It therefore
established new rules for the interrogation of the accused.

As Chief Justice Earl Warren wrote: "At the outset, if a
person in custody is to be subjected to interrogation, he must
first be informed in clear and unequivocal terms that he has the
right to remain silent.  For those unaware of the privilege, the
warning is needed simply to make them aware of it--the threshold
requirement for an intelligent decision as to its exercise.  More
important, such a warning is an absolute prerequisite
atmosphere....Further, the warning of the right to remain silent
must be accompanied by the explanation that anything said can and
will be used against the individual in court.  This warning is
needed in order to make him aware not only of the privilege, but
also of the consequences of forgoing it.  It is only through an
awareness of these consequences that there can be any assurance
of real understanding and intelligent exercise of the
privilege....

"The circumstances surrounding in-custody interrogation can
operate very quickly to overbear the will of one merely made
aware of his privilege by his interrogators.  Therefore, the
right to have counsel present at the interrogation is
indispensable to the protection of the Fifth Amendment privilege
under the system we delineate today.  Our aim is to assure that
the individual's right to choose between silence and speech
remains unfettered throughout the interrogation process.  A
once-stated warning, delivered by those who will conduct the
interrogation, cannot itself suffice to that end among those who
most require knowledge of their rights.

"In order to fully apprise a person interrogated of the
extent of his rights under this system then, it is necessary to
warn him not only that he has the right to consult with an
attorney, but also that if he is indigent a lawyer will be
appointed to represent him.  Without this additional warning, the
admonition of the right to consult with counsel would often be
understood as meaning only that he can consult with a lawyer if
he has one or had the funds to obtain one....

"Once warnings have been given, the subsequent procedure is
clear.  If the individual indicates in any manner, at any time
prior to or during questioning, that he wishes to remain silent,
the interrogation must cease....If the individual states that he
wants an attorney, the interrogation must cease until an attorney
is present....

"If the interrogation continues without the presence of an
attorney and a statement is taken, a heavy burden rests on the
government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and
his right to retained or appointed counsel."

This decision was a close one--the justices voted 5-4. 
Several justices felt that these rules would needlessly hamper
the work of the police and strongly disagreed with the decision. 
Justice John Marshall Harlan wrote: "There can be little doubt
that the Court's new code would markedly decrease the number of
confessions.  To warn the suspect that he may remain silent and
remind him that his confession may be used in court are minor
obstructions.  To require also an express waiver by the suspect
and an end to questioning whenever he demurs must heavily
handicap questioning.  And to suggest or provide counsel for the
suspect simply invites the end of the interrogation....

"In conclusion: nothing in the letter or the spirit of the
Constitution or in the precedents squares with the heavy-handed
and one-sided action that is so precipitously taken by the Court
in the name of fulfilling its constitutional responsibilities. 
The foray which the Court makes today brings to mind the wise and
farsighted words of Mr. Justice Jackson in Douglas v.
Geannette: 'This Court is forever adding new stories to the
temples of constitutional law, and the temples have a way of
collapsing when one story too many is added.'"

Justice Byron White wrote: "An accused, arrested on probable
cause, may blurt out a confession which will be admissible
despite the fact that he is alone and in custody, without any
showing that he had any notion of his right to remain silent or
of the consequences of his admission.  Yet, under the Court's
rule, if the police ask him a single question such as 'Do you
have anything to say?' or 'Did you kill your wife?' his response,
if there is one, has somehow been compelled, even if the accused
has been clearly warned of his right to remain silent.  Common
sense informs us to the contrary.  While one may say that the
response was 'involuntary' in the sense the question provoked or
was the occasion for the response and thus the defendant was
induced to speak out when he might have remained silent if not
arrested and not questioned, it is patently unsound to say the
response is compelled....

"In some unknown number of cases, the Court's rule will
return a killer, a rapist, or other criminal to the streets and
to the environment which produced him, to repeat his crime
whenever it pleases him. As a consequence, there will not be a
gain, but a loss, in human dignity."

Justice Tom Clark offered still another dissenting opinion:
"I am unable to join the majority because its opinion goes too
far on too little, while my dissenting brethren do not go quite
far enough....Moreover, the examples of police brutality
mentioned by the Court are rare exceptions to the thousands of
cases that appear every year in the law reports."

These dissenting opinions do not carry legal weight, but
they do offer a different perspective and a fuller understanding
of the issues involved.

JUDICIAL ORGANIZATION IN THE UNITED STATES

U.S. SUPREME COURT

UNITED STATES COURT OF MILITARY APPEALS

UNITED STATES COURTS OF APPEALS

CIRCUIT COURT OF APPEALS FOR THE FEDERAL CIRCUIT

MILITARY COURTS

UNITED STATES TAX COURT

TERRITORIAL COURTS

91 DISTRICT COURTS

COURTS OF THE DISTRICT OF COLUMBIA

U.S. COURT OF INTERNATIONAL TRADE

U.S. CLAIMS COURT

FEDERAL REGULATORY AGENCIES

HIGHEST STATE COURTS -- STATE SUPREME COURT

INTERMEDIATE COURT OF APPEALS

MAJOR TRIAL COURTS

- COUNTY COURTS
- DISTRICT COURTS
- CIRCUIT COURTS

MINOR TRIAL COURTS

- MUNICIPAL COURTS
- MAGISTRATE COURTS
- POLICE COURTS
- DOMESTIC RELATIONS COURTS
- PROBATE COURTS
- JUSTICE COURTS
- OTHER COURTS

MEASURES OF JUDICIAL INDEPENDENCE

To evaluate better the legal systems of different countries,
political scientist John Schmidhauser has identified several
attributes associated with judicial independence.  These measures
are especially useful for comparative analysis and are described
further in Martin Shapiro's Courts: A Comparative Political
Analysis.



- Functional separation of the highest judicial body from
political branches of government.
- Tenure of judges.
- Irreducibility of salaries of highest judicial personnel.
- Compliance with highest judicial decisions and court orders.
- Enforcement of highest judicial decisions and court orders.
- Foundation of highest judicial power (for example,
constitutional, statutory, or dependence on political leader).
- Extent of judicial review by highest judicial power (for
example, guaranteed by constitution, limited to a few areas or
nonexistent).
- Cross-cultural representation on highest court (relevant in
diverse societies).
- High qualitative standards for selection of highest judges.
- Fairness and objectivity in internal court procedures.
- Probity and standards to prevent unfair financial, family, or
political influence on the court.

COURTS IN VENEZUELA

Like the United States, Venezuela has a federal system.  Its
judicial system, however, is unitary, headed by a nine-member
Supreme Court.  The country is divided into 17 judicial
districts, each of which has at least one superior court. 
Beneath the superior courts are the courts of instruction, which
draw up indictments; municipal courts in every town; district
courts with original and appellate jurisdiction in cases
involving sums of money fixed by law; and courts of first
instance which operate much like U.S. District Courts.  There are
also special courts dealing with labor and the military, key
components of Venezuelan society.  The Venezuelan judiciary has
the power of judicial review, although it rarely exercises it.

Venezuela is proud that appeals to the courts challenging
constitutionality began in the 19th century, well before the
trend became common in Europe.  Guaranteeing the independence of
the judiciary was likewise a key concern of those who drafted the
most recent constitution in 1961.  But unlike U.S. practice, life
tenure of judges has never been popular in Venezuela.  Rather,
judges on the Supreme Court are elected by the National Congress
for nine years and terms of a third of them are renewed for three
years.  This feature allows for some continuity while limiting
the role of politics on the court.  The Constitution of 1961 also
created a Council of the Judicature to ensure judicial
independence and guarantee certain benefits to the judges. 
Because the Council enjoys constitutional status, it is a highly
visible bulwark against political encroachments on judicial
authority.

The Venezuelan judiciary has jurisdiction over legal
controversies as well as administrative matters, for example,
currency valuation and tax assessments.  It provides recourse
against illegal administrative acts and reparation to people
injured by them.  The courts also recognize the rights of
citizens to reestablish the "personal, legal situation distorted
by the administrative activity," guaranteeing the interests of
those harmed by governmental actions.  Personal property rights
receive a great deal of attention in Venezuelan courts. 
Confiscations of property are expressly prohibited, and no one
may have land expropriated without good cause, and then only with
a prior judicial decision and payment of just compensation.

The Venezuelan judicial system is not without its problems. 
The legal profession has a rather negative public image because
universities produce more lawyers than the system can absorb,
which in turn prompts some of them to violate ethical standards
for financial survival.  But lawyers have always been closely
involved with political development and were instrumental in
crafting the current constitution, which has survived longer than
most.  As in most Latin American countries, the executive branch
dominates the government.  In Venezuela, however, respect for the
rule of law is well established.  The courts play a crucial role
in safeguarding the constitutional rights of the people, a vital
function in a constitutional democracy.

GLOSSARY

appeal -- to seek review from a higher court; some appeals
are granted automatically, but most appellate courts exercise
their own discretion over which cases warrant their review.

bench -- the collective term for all judges who serve on a
particular court.

civil case -- arises from a dispute in which one party (an
individual, group, or government) alleges in a lawsuit that it
has been wronged by another party.

criminal case -- always prosecuted by the government, it
involves a party charged with committing certain acts that
society has defined as "criminal" in public law.

docket -- refers to judicial workload; it is the calendar
prepared by court clerks listing the cases to be heard.

en banc -- a case heard by all judges who serve on a
particular appellate court. The U.S. Supreme Court always sits en
banc, while U.S. Courts of Appeals judges usually sit in
three-judge panels.

jurisdiction -- a court's authority to hear a case; the
case must fall within the subject and geographic area handled by
a particular court and be brought by the proper parties.

mandamus -- "we command," an order issued by a higher
court to a lower court or other government official to perform a
certain duty.

stare decisis -- "let the decision stand," the principle
of
adherence to precedent in similar subsequent decisions.

writ -- a written court order commanding the recipient
either to perform or not perform certain acts specified in the
order.

BIBLIOGRAPHY

Abraham, Henry J.  The Judicial Process. 6th ed.  New
York: Oxford University Press, 1993.

Ackerman, Bruce.  The Future of Liberal Revolution.  New
Haven, CT: Yale University Press, 1992.

Agresto, John.  The Supreme Court and Constitutional
Democracy.  Ithaca, NY: Cornell University Press, 1984.

Goldwin, Robert A., and Art Kaufman, Eds.  Constitution Makers
onConstitution Making: The Experience of Eight Nations. 
Washington, DC: American Enterprise Institute, 1988.

Katz, Alan N., ed.  Legal Traditions and Systems: An
International Handbook.  New York: Greenwood Press, 1986.

Shapiro, Martin.  Courts: A Comparative Political
Analysis. Chicago: University of Chicago Press, 1981.

Waltman, Jerold L., and Kenneth M. Holland, Eds.  The
Political Role of Law Courts in Modern Societies.  New York:
Macmillan, 1988.

CONTACTS

Governmental

Administrative Office of the U.S. Courts
Thurgood Marshall Federal Judicial Building
1 Columbus Circle, N.E.
Washington, D.C.  20544
Telephone: (202) 273-1860

This agency examines administrative procedures and dockets of
federal courts, collects data, and prepares reports and draft
legislation relating to the federal court system.

Federal Judicial Center Research Division
Thurgood Marshall Federal Judicial Building
1 Columbus Circle, N.E.
Washington, D.C.  20544
Telephone: (202) 273-4070
Fax: (202) 273-4021

The Research Division studies different aspects of the courts'
operations.  It develops and conducts training programs for
judges and judicial personnel, and designs and tests new
technology for use in the administration of the courts.

U. S. Department of Justice
Main Justice Building
Washington, D.C.  20530
Telephone: (202) 514-2007
Fax: (202) 514-5331

The Justice Department includes numerous specialized divisions
and is responsible for investigating and prosecuting federal
crimes, representing the federal government in legal cases, and
interpreting the laws under which the federal government
operates.

Library of Congress Law Library
101 Independence Avenue, S.E.
Washington, D.C.  20540
Telephone: (202) 707-5065
Fax: (202) 707-1820

The Law Library maintains an extensive collection of
international and comparative law literature covering all legal
systems.  Services include a public reading room staffed by legal
specialists competent in 50 languages.

State Justice Institute
1650 King Street
Alexandria, Virginia  22314
Telephone: (703) 684-6100
Fax: (703) 684-7618

Established by Congress, the State Justice Institute awards
grants to courts and agencies working to improve the
administration of justice in the state courts.

Nongovernmental

Alliance for Justice
Judicial Selection Project
1601 Connecticut Avenue, N.W.
Washington, D.C.  20009
Telephone: (202) 332-3224
Fax: (202) 387-7915

This group monitors candidates for vacancies on the federal bench
and provides independent reviews of nominees' records.

National Institute for Citizen Education in the Law
711 G Street, S.E.
Washington, D.C.  20003
Telephone: (202) 546-6644
Fax: (202) 546-6649

The Institute is an educational organization that works
nationally and internationally to improve public understanding of
the legal system, particularly through citizen participation.

World Peace Through Law Center
1000 Connecticut Avenue, N.W.
Washington, D.C.  20036
Telephone: (202) 466-5428
Fax: (202) 452-8540

Affiliated with the World Association of Judges, the World
Association of Law Professors, and the World Association of
Lawyers, the Center conducts research and prepares reports on
international and comparative law and holds biennial world
conferences.

About the Author:  Susan Sullivan Lagon has taught in
Washington, D.C., for a dozen years, most recently as an
assistant professor of constitutional law at Georgetown
University.  Dr. Lagon holds a Ph.D in government and is a
frequent lecturer in government and legal questions.

______________________

Project management and editing by the Institute for Contemporary
Studies (ICS)
Vice President -- Kenneth L. Adelman
Editor -- Heidi Fritschel
The mission of ICS is to promote the self-governing and
entrepreneurial way of life.  Through its imprint, ICS Press, ICS
publishes a wide range of books on public issues.  For a catalog
or more information, write: ICS, 243 Kearny Street, San
Francisco, California 94102 USA.

Freedom Papers Series:
Editor: Howard Cincotta
Associate Editors: Jeanne S. Holden, Rick Marshall
Design: Linda A. Wray

July 1993

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