USIS -- Issues of Democracy, September 1999 -- U.S. Courts

From the Editors

The separation of powers and the checks and balances in the U.S. Constitution among the executive, legislative and judiciary is one of the most cherished hallmarks of American democracy. It guarantees not only the independence of the judiciary, but also its formidable power. The idea dates back to ancient Greece, and was articulated in modern times by British philosopher John Locke and French philosopher Baron de Montesquieu.

But it was the Founding Fathers in writing the U.S. Constitution, and James Madison in particular, who gave these ideas living expression in the new republican form of government they established after independence was won. The independence of the judiciary is enshrined in Article III of the Constitution and is given further expression in the Bill of Rights, the first 10 Amendments that were subsequently added.

This journal focuses not so much on judicial independence nor, more broadly, on the role of the judiciary in the U.S. system of government. Rather, it is a guide to how the U.S. court system works in practice -- the system's players, its structure, its functions, and its ethical safeguards. But it is important to understand that the U.S. courts exist in an overall constitutional framework that guarantees their independence.

Presidents, for example, may appoint federal judges, but they cannot remove them. That power, seldom used, is the preserve of Congress. Judges for their part can overturn presidential or congressional actions, declaring them unconstitutional -- a feature of the U.S. system that foreign observers often find astonishing. But this power of judicial review is not absolute, for the laws can be rewritten and the Constitution can, if necessary, be amended.

A key component of the U.S. judicial system is the notion of common law or judge-made law (written and unwritten), as contrasted with civil law, which largely is composed of written codes. Judge Peter J. Messitte, U.S. District Court, Maryland, explains the tradition of common law as it was inherited by the new American government from Britain, the colonial power.

No court system can function justly or effectively without built-in safeguards to ensure, as far as possible, the highest ethical standards for judges, attorneys, and others involved in the process. Their fair-mindedness, professionalism and integrity are absolutely essential to public confidence and support. In a telepress conference to judges in Slovenia, U.S. Supreme Court Justice Anthony Kennedy explores the issue of how ethical standards can be established and maintained to ensure the neutrality of the rule of law.

The mechanics of the U.S. court system are covered in an article by Professor Toni M. Fine, associate director of the Global Law School Program at New York University School of Law. She discusses the distinction between the federal and state courts, the role of administrative courts, and the all-important appeals process which can filter through special appeals courts at a number of different levels, and may sometimes go all the way to the Supreme Court of the United States which, in the U.S. system, has the final say on judicial and Constitutional matters.

The U.S. system of justice essentially is an adversary process. It is based on the belief that truth is more likely to emerge when both sides -- defense and prosecution -- are able to present their case aggressively to a jury under impartial rules of evidence before a disinterested judge. These are clear and distinct roles that are explored in a series of interviews with an assistant U.S. attorney (prosecutor), a public defender, an attorney and a judge, conducted by contributing editors Stuart Gorin and Bruce Carey.

There are two, very distinct forms of trials in the American system -- civil and criminal. The rules for each, the responsibilities of the court, and the rights of defendants differ considerably. E. Osborne Ayscue, Jr., a civil trial attorney and current president of the American College of Trial Lawyers, explores these differences in his portrayal of the course of a civil and a criminal trial. To illustrate his points, he gives examples of some high-profile cases, well-known to worldwide audiences.

From the inception of the Republic, the role of courts in the U.S. has been not just to prosecute crimes, but to affirm rights enshrined in the Constitution. In an article on Brown v. Board of Education, contributing editor David Pitts traces the history of one of the most important decisions in the history of U.S. constitutional law. It tells the story of how a small group of citizens went to court to overturn a state law they saw as unjust. Their concerns led to a Supreme Court ruling that overturned that state law and similar laws in 24 states.