AP Gov: Chapter 6 vocab

Injunction

An authoritative command or order. After a decision, courts may issue an injunction, or court order, to the losing party in a civil suit, making them act or refrain from acting to redress the wrong.

Precedent

An earlier event or action that is regarded as an example or guide to be considered in subsequent similar circumstances. How similar cases have been decided in the past. Courts follow a judicial tradition begun centuries ago in England. The common law refers to the body of court decisions that make up part of the law. Court rulings often establish a precedent- a ruling that firmly establishes a legal principle. These precedents are generally followed later as other courts consider the same legal logic in similar cases. The concept of stare decisis, or "let the decision stand," governs common law. Lower courts must follow higher court rulings. Following precedence establishes continuity and consistency in law. Therefore, when a US district court receives a case that parallels an already decided case from the circuit level, the district court is obliged to rule in the same way, a practice called binding precedent. Even an independent-minded judge who disagrees with the higher court's precedent is guided by the fact that an appeal of her uniquely different decision will likely be overruled by the court above. That is why all courts in the land are bound by US Supreme Court decisions. Judges also rely on persuasive precedent. They can consider past decisions made in other districts or ruling in other circuits as a guiding basis for their decision. Precedents can be overturned. No two cases are absolutely identical, attitudes and interpretation differ and evolve over time in different courts.

Roberts, John

(born January 27, 1955) He is the 17th and current Chief Justice of the United States. He has served since 2005, having been nominated by President George W. Bush after the death of Chief Justice William Rehnquist. He has been described as having a conservative judicial philosophy in his jurisprudence. When President George W. Bush replaced Chief Justice Rehnquist after his death with John Roberts (2005), the Court's membership had not changed for about 12 years.The Rehnquist Court and the current Roberts Court have been difficult to predict. The conservative and liberal wings have been balanced by the swing votes of O 'Connor and now Justice Anthony Kennedy. Swing votes are those often tie-breaking votes cast by justices whose opinions cannot always be easily predicted. For the past decade or so, most experts have been quick to characterize the Court as leaning conservative. However, the Court has limited states' use of the death penalty and upheld government's eminent domain authority for economic development. Chief Justice John Roberts has guided the Court with judicial minimalism. "Judges and justices are servants of the law, not the other way around. Judges are like umpires. They don't make rules, they apply them." Roberts' operation takes fewer cases, while the conversations and conferences go longer. He has achieved more unanimity in decisions than some previous chief justices and has written more narrow opinions to address the questions before the Court.

Plaintiff

A person who brings a case against another in a court of law. A trial court. US district courts are trial courts with original jurisdiction over federal cases. The litigants in a trial court are the plaintiff- the party initiating the action- and the defendant, the party answering the action. In a criminal trial, the government is the plaintiff, usually referred to as the "prosecution." In civil trials, a citizen-plaintiff brings suit against another, the defendant, who allegedly injured him or her. Trial courts are finders of facts, these courts determine if an accused defendant did in fact commit a crime, or if a civil defendant is indeed responsible for some mistake or wrongdoing.

Solicitor general

A presidential appointee and the third-ranking office in the Department of Justice. The solicitor general is in charge of the appellate court litigation of the federal government. The fourth-ranking member of the Department of Justice; responsible for handling nearly all appeals on behalf of the U.S. government to the Supreme Court. In addition to appointing the judiciary, the executive branch enters the federal courts to enforce criminal law and to weigh in on legal questions. The president's Department of Justice, headed by the attorney general, investigates federal crimes with the FBI or the DEA, and US attorneys prosecute the accused criminals. These attorneys are also the legal authority for federal civil law on a more local basis. When a party sues the federal government, it is the US attorneys who defend the US. In appealed criminal cases, these attorneys present the oral arguments in the circuit courts. A high-ranking figure in the Department of Justice is the solicitor general, who works in the Washington office. Appointed by the president and approved by the Senate, the solicitor general determines which cases to appeal to the US Supreme Court and represents the US in the Supreme Court room. When you see a Supreme Court case entitled the United States v. John Doe, it means the US lost in one of the circuit courts and the solicitor general sought an appeal. The solicitor general may also submit amicus curiae brief (friend of the court brief) to the Supreme Court in cases where the United States is not a party. An amicus brief argues for a particular ruling in the case. Several solicitors general have later been appointed to the High Court. (Stanley Reed, Thurgood Marshall, and Elena Kagan)

Plea bargain

Agreement between a prosecutor and a defendant that the defendant will plead guilty to a lesser offense to avoid having to stand trial for a more serious offense. A defendant's admission of guilt in exchange for a less severe punishment. Defendants have a constitutional right to a jury and defense lawyer and several other due process rights included in the Bill of Rights. The judge or jury must find the defendant guilty "beyond reasonable doubt" in order to convict and issue a sentence. Many cases are disposed of when a defendant pleads guilty before the trial. This plea bargain allows the government and the defendant to agree to a lesser sentence in exchange for the defendant's guilty plea. A plea bargain saves courts time and taxpayers money, and it guarantees a conviction. Eg. FBI agent Robert Hannsen was discovered to have sold government secrets to the Russians for years. He was charged with espionage crimes and pleaded guilty in order to avoid the death penalty.

Appellate jurisdiction

Authority of court to review a decision of a lower court or administrative agency. The jurisdiction of courts that hear cases brought to them on appeal from lower courts. These courts do not review the factual record, only the legal issues involved. The Supreme Court has original jurisdiction, the authority to hear a case for the first time, in cases affecting ambassadors and public ministers and those in which a state is a party. For the most part however, the Supreme Court acts as an appeals court with appellate jurisdiction. The US Circuit Courts of Appeals, the circuit courts have appellate jurisdiction, taking cases on appeal. Appeals courts are especially influential because they don't determine facts; instead, they shape the law. The losing party in a trial can appeal based on the concept of certiorari, "to make more certain." Thousands more cases are appealed than accepted by higher courts. The appellant must offer some violation of established law or procedure that led to the incorrect verdict in the trial court. Appeals courts look different and operate differently from trial courts. Appeals courts have a panel of judges sitting at the bench. There is no witness stand or jury box since the court does not entertain new facts but decides instead on some narrow question or point of law. The hearing lasts about an hour as each side makes oral arguments before the judges. Appeals courts don't declare guilt or innocence when dealing with criminal matters, but they may order new trials for defendants. After years of deciding legal principles, appeals courts have shaped the body of US law.

Supreme Court

Consists of nine justices, each appointed by the President and confirmed by Congress. Appointment is for life. Supreme Court exercises the power to determine constitutionality of statutes. The highest federal court in the United States. Today's three-level federal court system consists of the US District Courts on the lowest tier, the US Circuit Courts of Appeals on the middle tier, and the US Supreme Court alone on the top. These three types of courts are known as "constitutional courts" because they are either directly or indirectly mentioned in the Constitution. All judges serving in these courts are appointed by presidents and confirmed by the Senate to hold life terms. No national court system existed under the Articles of Confederation, so the framers decided to create a national judiciary while empowering Congress to expand and define it. The Judiciary Act of 1789 cleared up the vague and brief Article III. The law established one district court in each of the 13 states plus 1 each for the soon-to-be-states of Vermont and Kentucky. The law also defined the size of the Supreme Court with 6 justices, or judges. In addition to the district courts, Congress initially created 3 regional circuit courts designated to take cases on appeal from the district courts. 2 Supreme Court justices were assigned to each of the "circuits" and were required to hold court twice per year in every state. The presiding district judge joined them to make a 3-judge intermediate panel. In a given period, the Supreme Court justices would hold one court after another in a circular path, an act that became known as "riding circuit." Atop this hierarchy is the US Supreme Court, with the chief justice and eight associate justices. The Supreme Court mostly hears cases on appeal from the circuit courts and from the state supreme courts. The 9 members determine which appeals to accept, they sit en banc for attornerys' oral arguments, and they vote to decide whether or not to overturn the lower court's ruling. The Court overturns about 70% of the cases it takes. Once the Supreme Court makes a ruling, it becomes the law of the land. Contrary to what many believe, the Supreme Court doesn't hear trials of serial murders or billion-dollar lawsuits. However, they decide on technicalities of constitutional law that have a national and sometimes historic impact. Common law and precedence: Common law refers to the body of court decisions that make up part of the law. Court rulings often establish a precedent- a ruling that firmly establishes a legal principle. These precedents are generally followed later as other courts consider the same legal logic in similar cases. The concept of stare decisis, "let the decision stand," governs common law. Binding precedent and persuasive precedent. The Supreme Court's authority of binding precedent combined with its power of judicial review- the ability to declare a legislative act or an executive branch action void- makes it a powerful institution and often the final arbiter of national law. With these 2 powers, the Court has had a strong hand in establishing national policy. The Court has original and appellate jurisdiction. It serves as a trial court in rare cases, typically when one state sues another over a border dispute or to settle some type of interstate compact. It also accepts in forma pauperis briefs, filings by prisoners (in the form of a pauper) seeking a new trial. As the nation's highest appeals court, the Court takes cases from the 13 circuits and the 50 states. 2/3 or more of appeals come through the federal system. The Supreme Court has a more direct jurisdiction over cases starting in US district courts.

Class action suit

Lawsuit brought by an individual or group of people on behalf of all those similarly situated. Civil cases. Citizens can also bring civil disputes to court to settle a business or personal conflict. Some plaintiffs sue over torts, civil wrongs that have damaged them. In a lawsuit, the plaintiff files a complaint (a brief that explains the damages and argues why the defendant should be held responsible). The party bringing suit must prove the defendant's liability or negligence with a "preponderance of evidence" for the court to award damages. Most civil disputes, even million-dollar lawsuits, are handled in state courts. Congress has empowered the US district courts to have jurisdiction over disputes involving more than $75,000 with diversity citizenship- cases in which the 2 parties reside in different states. Disputes involving constitutional questions also land in this court. In these cases, a federal judge, not a jury, determines the outcome because these cases involve a deeper interpretation of the law than more general cases do. Sometimes a large group of plaintiffs claim common damage by one party and will file a class action suit. After a decision, courts may issue an injunction, or court order, to the losing party in a civil suit, making them act or refrain from acting to redress a wrong.

Liberal constructionist

One who argues a broad interpretation of the provisions of the Constitution, particularly those granting powers to the Federal Government. A liberal constructionist sees the Constitution as a living document and takes into account changes and social conditions since ratification.

Writ of certiorari

Order by the Supreme Court directing a lower court to send up the records of a case for review. A formal writ used to bring a case before the Supreme Court. How cases reach the Supreme Court. Like the circuit courts, the Supreme Court accepts appeals each year from among thousands filed. The petitioner files a petition for certiorari, a brief arguing why the lower court erred. The Supreme Court reviews these to determine if the claim is worthy and if it should grant the appeal. To be more efficient, the justices share their clerks, who review the petitions for certiorari and determine which are worthy. This "cert pool" becomes a gatekeeper at the Supreme Court. If an appeal is deemed worthy, the justices add the claim to their "discuss list." On a regular basis, all 9 justices gather in conference to discuss these claims. They consider past precedents and the real impact on the petitioner and respondent. The Supreme Court does not consider hypothetical or theoretical damages; the claimant must show actual damage. Finally, the justices consider the wider national and societal impact if they take and rule on the case Once 4 of the 9 justices agree to accept the case, the appeal is granted. This rule of four, a standard less than the majority, reflects courts' commitments to claims by minorities. The Court then issues a writ of certiorari to the lower court, informing it of the Court's decision and to request the full trial transcript. The justices spend much time reading the case record. Then a date is set for oral arguments. When the Court opens on the first Monday in October, the 9 justices enter to hear the petitioner and respondent make their cases, each having 30 minutes for argument. A Supreme Court hearing is not a trial but a chance for each side to persuade justices on one or more narrow points of law. Justices will ask questions, pose hypothetical scenarios, and at times boldly signal their viewpoints. Sometime after the hearing, the justices will reconvene in conference to discuss the arguments and make a decision. A simple majority rules.

US Circuit Court of Appeals

The court that hears the appeal of the court decision made in the US District Court. No juries in an appellate court. Today's three-level federal court system consists of the US District Courts on the lowest tier, the US Circuit Courts of Appeals on the middle tier, and the US Supreme Court alone on the top. These three types of courts are known as "constitutional courts" because they are either directly or indirectly mentioned in the Constitution. All judges serving in these courts are appointed by presidents and confirmed by the Senate to hold life terms. No national court system existed under the Articles of Confederation, so the framers decided to create a national judiciary while empowering Congress to expand and define it. The Judiciary Act of 1789 cleared up the vague and brief Article III. The law established one district court in each of the 13 states plus 1 each for the soon-to-be-states of Vermont and Kentucky. The law also defined the size of the Supreme Court with 6 justices, or judges. In addition to the district courts, Congress initially created 3 regional circuit courts designated to take cases on appeal from the district courts. 2 Supreme Court justices were assigned to each of the "circuits" and were required to hold court twice per year in every state. The presiding district judge joined them to make a 3-judge intermediate panel. In a given period, the Supreme Court justices would hold one court after another in a circular path, an act that became known as "riding circuit." Directly above the district court is the US Circuit Courts of Appeals. The circuit courts have appellate jurisdiction, taking cases on appeal. In 1891, Congress made the circuit court of appeals a permanent body. The Country had expanded to the Pacific Coast, and Supreme Court justices still had to travel across the now distant and expansive circuits. the increasing caseload also made this task unmanageable for justices based in Washington. Appellate Courts. Appeals courts are especially influential because they don't determine facts; instead, they shape the law. The losing party in a trial can appeal based on the concept of certiorari, "to make more certain." Thousands more cases are appealed than accepted by higher courts. The appellant must offer some violation of established law or procedure that led to the incorrect verdict in the trial court. Appeals courts look different and operate differently from trial courts. Appeals courts have a panel of judges sitting at the bench. There is no witness stand or jury box since the court does not entertain new facts but decides instead on some narrow question or point of law. The petitioner appeals the case, and the respondent responds, claiming why and how the lower court ruled correctly. The hearing lasts about an hour as each side makes oral arguments before the judges. Appeals courts don't declare guilt or innocence when dealing with criminal matters, but they may order new trials for defendants. After years of deciding legal principles, appeals courts have shaped the body of US law. The US Courts of Appeals consists of 11 geographic circuits across the country, each with one court in major cities like Atlanta, New Orleans, Chicago. Nearly 200 circuit court justices sit in panels of three to hear appeals from both criminal and civil trials. Occasionally in important matters, an entire circuit court will sit en banc; that is, every judge on the court will hear and decide a case. Appeals court rulings stand within their geographic circuits. In addition to the 11 circuits, 2 other appeals courts are worthy of note. The Circuit Court for the Federal Circuit hears appeals dealing with patents, contracts, and financial claims against the US. The Circuit Court of Appeals for the District of Columbia, among other responsibilities, handles appeals from those fined or punished by executive branch regulatory agencies. The DC Circuit might be the second most important court in the nation and has become a feeder for Supreme Court justices.

Attorney general

The head of the Department of Justice. US district courts. Each of the 94 districts has a US attorney, appointed by the president and approved by the Senate, who represents the federal government in federal courts. These attorneys are executive branch employees who work in the Department of Justice under the attorney general. They serve as federal prosecutors, and with assistance from the FBI and other federal law enforcement agencies they prosecute federal crimes committed within their districts.

Original jurisdiction

The jurisdiction of courts that hear a case first, usually in a trial. These are the courts that determine the facts about a case. The authority to hear cases for the first time. The Supreme Court has original jurisdiction- the authority to hear a case for the first time- in cases affecting ambassadors and public ministers and those in which a state is a party. US district courts are trial courts with original jurisdiction over federal cases. In a criminal trial, the government is the plaintiff, usually referred to as the "prosecution." In civil trials, a citizen-plaintiff brings suit against another, the defendant, who allegedly injured him or her. Trial courts are finders of fact; that is, these courts determine if an accused defendant did in fact commit a crime, or if a civil defendant is indeed responsible for some mistake or wrongdoing.

Common law

(Civil law) A law established by following earlier judicial decisions. A system of law based on precedent and customs. A legal system based on custom and court rulings. Courts follow a judicial tradition begun centuries ago in England. The common law refers to the body of court decisions that make up part of the law. Court rulings often establish a precedent, a ruling that firmly establishes a legal principle. These precedents re generally followed later as other courts consider the same legal logic in similar cases. The concept of stare decisis, or "let the decision stand," governs common law. Binding precedent and persuasive precedent.

Dred Scott v. Sandford

1857 *Supreme Court case involving a slave, Scott, who was taken by his master from Missouri, a slave state, to Illinois, a free state *After Scott had been returned to Missouri, he sued for freedom for himself and his family, stating that by residing in a free state he had ended his slavery *President Buchanan meant for the case's decision to serve as the basis for the slavery issue *Pro-South Judge Taney ruled that Scott did not have the right of citizenship, which he would need to be able to bring forth a suit *Ruled further that the Missouri Compromise itself was unconstitutional because Congress had no power to prohibit slavery in the territories, as slaves were property *The Scott decision would apply to all African Americans, who were regarded as inferior and, therefore, without rights In 1857, as the North and the South grew further apart, the Court decided the Dred Scott case. The slave Dred Scott had traveled with his master into free territory and claimed, with the help of abolitionist lawyers, that having lived in free northern territory, he should have his freedom. Taney and the Court's majority shocked abolitionists with their decision and left one of the Court's worst legacies. The Dred Scott v. Sandford ruling held that Scott wasn't even a citizen and thus had no legal right to be a party in federal court, much less the country's top tribunal. The Court went further, stating that a slave owner's constitutional right to due process and property prevented depriving him of that property, regardless of where he traveled. Abolitionists and anti-slavery advocates in the territories challenged the Court's legitimacy. Judicial review or striking down acts of Congress came as a rarity after Marbury v. Madison. Not until the infamous Dred Scott case did the Court again strike down a law, this time one that outlawed slavery north of the Missouri Compromise line.

Petition for certiorari

A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. As the nation's highest appeals court, the Supreme Court takes cases from the 13 circuits and the 50 states. 2/3 or more of appeals come through the federal system. The Supreme Court has a more direct jurisdiction over cases starting in US district courts. Like the circuit courts, the Supreme Court accepts appeals each year from among thousands filed. The petitioner files a petition for certiorari, a brief arguing why the lower court erred. The Supreme Court reviews these to determine if the claim is worthy and if it should grant the appeal. to be more efficient, the justices share their clerks, who review the petitions for certiorari and determine which are worthy. This "cert pool" becomes a gatekeeper at the Supreme Court. If an appeal is deemed worthy, the justices add the claim to their "discuss list." On a regular basis, all 9 justices gather in conference to discuss these claims. They consider past precedents and the real impact on the petitioner and respondent. The claimant must show actual damage. The justices consider the wider national and societal impact if they take and rule on the case. Once 4 of the 9 justices agree to accept the case, the appeal is granted.

Strict constructionist

A person who interprets the Constitution in a way that allows the federal government to take only those actions the Constitution specifically says it can take. One who argues a narrow interpretation of the Constitution's provisions, in particular those granting powers to the Federal Government. In the late 1800s, the Court examined concerns over business, trade, and workplace regulations. The nation had expanded manufacturing power, factories, railroads, and interstate trade. Workers were subjected to long hours in unsafe conditions for modest pay. Congress tried to address these issues under its power to regulate interstate commerce. State legislatures also devised laws creating safety bureaus, barring payment in company scrip, setting maximum working hours, and preventing women and children from working in certain industries. While lawmakers tried to satisfy workers' groups and labor unions, their counterparts- typically strong businesses dominant in the northeastern US- argued that minimal government interference and a laissez-faire approach to governance was the constitutionally correct path. When pressed by corporations to toss out such laws, the Court had to decide 2 principles: what the Constitution permitted government to do, and which government- state or federal- could do it. The Court began to overturn various state health, safety, and civil rights laws, and in so doing shaped social policy.. It threw out a congressional act that addressed monopolies. It also ruled Congress' income tax statute null and void. By the turn of the century, the Court had developed a conservative reputation as it questioned business regulation and progressive ideas. In Lochner v. New York (1905), the Court overturned a New York state law that prevented bakers from working more than 10 hours per day. It was meant to counter the pressures from the boss that mandated long hours. The Court ruled that liberty of contract- a worker's right to freely enter into an agreement- superseded the state's police powers over safety and health. The Brandeis brief persuaded the Court to uphold a maximum-hours law for women working in laundries later. Consequence was that women could not effectively compete with men. During the Progressive Era, the Court made additional exceptions but quickly returned to a conservative, strict constructionist view of business regulation. A strict constructionist interprets the Constitution in its original context, while a liberal constructionist sees the Constitution as a living document and takes into account changes and social conditions since ratification. The Court held that Congress could not use its commerce power to suppress child labor. The Court's conservative viewpoint turned further to the right, taking social policy with it, when former president William Howard Taft became chief justice. It ruled that minimum wage law for women also violated liberty of contract.

Petitioner

A person who makes a formal application to a court for a writ, judicial action in a suit, etc. A party that initiates a lawsuit, brings the lawsuit. Appellate courts. The losing party in a trial can appeal based on the concept of certiorari, "to make more certain." The appellant must offer some violation of established law or procedure that led to the incorrect verdict in the trial court. The petitioner appeals the case and the respondent responds, claiming why and how the lower court ruled correctly.

Persuasive precedent

A precedent that a court does not have to follow but can be very influential when determining a case. Precedent which a judge is not obliged to follow, but is of importance in reaching a judgment. Court rulings often establish a precedent- a ruling that firmly establishes a legal principle. These precedents are generally followed later as other courts consider the same legal logic in similar cases. State decisis- let the decision stand. Binding precedent. Judges also rely on persuasive precedent. That is, they can consider past decisions made in other districts or rulings in other circuits as a guiding basis for their decision. Precedents can of course be overturned. No two cases are absolutely identical. Attitudes and interpretations differ and evolve over time in different courts.

En banc

A procedure in which all the members of a U.S. court of appeals hear and decide a case. The full panel of judges on the appellate court hears a case. Occasionally in important matters, an entire circuit court will sit en banc; that is, every judge on the court will hear and decide a case. The 9 members of the Supreme Court determine which appeals to accept, they sit en banc for attorneys' oral arguments, and they vote to decide whether or not to overturn the lower court's ruling.

Majority opinion

A statement that presents the views of the majority of supreme court justices regarding a case. Once the Court comes to a majority, the chief justice, or the most senior justice in the majority, either writes the Court's opinion or assigns it to another justice in the majority. In making that decision, the assigning justice considers who has expertise on the topic, who is passionate about the issue, and what the nature of the discussions were that took place in conference. The majority opinion is the Court's opinion. It is the judicial branch's law much as a statute is Congress's law or an executive order is law created by a president. The majority opinion sums up the case, the Court's decision, and its rationale.

Dissenting opinion

A statement written by a justice who disagrees with the majority opinion, presenting his or her opinion. The majority opinion sums up the case, the Court's decision, and its rationale. Justices who vote against the majority often write a dissenting opinion. The dissenting opinion has no force of law but allows a justice to explain his/her disagreements with his/her colleagues. While these have no immediate legal bearing, dissenting opinions send a message to the legal community or to America at large and are often referenced in later cases when the Court might revisit the issue or reverse the precedent. On occasion, the Court will issue a decision without the full explanation. This is known as a per curium opinion.

Concurring opinion

A statement written by a justice who votes with the majority, but for different reasons. An opinion that agrees with the majority in a Supreme Court ruling but differs on the reasoning. The majority opinion sums up the case, the Court's decision, and its rationale. Justices who find themselves differing from the majority can draft and issue differing opinions. Some may agree with the majority and join that vote but have reservations about the majority's legal reasoning. They might write a concurring opinion.

Litmus test

A test of ideological purity used by recent presidents in selecting and senators in confirming judges to nominate to federal courts. A question asked of a potential candidate for high office, the answer to which would determine whether the nominating official would proceed with the appointment or nomination. The Senate Judiciary Committee looks over all the president's judicial appointments. Sometimes nominees appear before the committee to answer senators' questions about their experience or their views on the law. Less controversial district judges are confirmed without notice based largely on the recommendation of the senators from the nominee's state. The more controversial, polarizing Supreme Court nominees will receive greater attention during sometimes contentious and dramatic hearings. The quick determination of an appointee's political philosophy has become known as a litmus test. Much like quickly testing a solution for its pH in chemistry class, someone trying to determine a judicial nominee's ideology on the political spectrum will ask a pointed question on a controversial issue, or look at one of his or her prior opinions from a lower court. Presidents, senators, or pundits can conduct such a "test." The very term has a built in criticism, as a judge's complex judicial philosophy should not be determined as quickly as a black-and-white scientific measure.

Judicial review

Allows the court to determine the constitutionality of laws. The ability to declare a legislative act or an executive branch action void. Striking down acts of Congress.The right of the Court to determine the constitutionality of a law or executive order. Eg. Marbury v. Madison.

Defendant

An individual, company, or institution sued or accused in a court of law. An individual or group being sued or charged with a crime. US district courts are trial courts with original jurisdiction over federal cases. The litigants in a trial court are the plaintiff- the party initiating the action- and the defendant, the party answering the action. In a criminal trial, the government is the plaintiff, usually referred to as the "prosecution." In civil trials, a citizen-plaintiff brings suit against another, the defendant, who allegedly injured him or her. Trial courts are finders of fact; that is, these courts determine if an accused defendant did in fact commit a crime, or if a civil defendant is indeed responsible for some mistake or wrongdoing. Federal crimes. Defendants have a constitutional right to a jury and defense lawyer and several other due process rights included in the Bill of Rights. The judge or jury must find the defendant guilty "beyond a reasonable doubt" in order to convict and issue a sentence. Many cases are disposed of when a defendant pleads guilty before the trial. This plea bargain allows the government and the defendant to agree to a lesser sentence in exchange for the defendant's guilty plea.

Judicial activism

An interpretation of the U.S. constitution holding that the spirit of the times and the needs of the nation can legitimately influence judicial decisions (particularly decisions of the Supreme Court). A judicial philosophy in which judges make bold policy decisions, even charting new constitutional ground. Advocates of this approach emphasize that the courts can correct pressing needs, especially those unmet by the majoritarian political process. Other courts have since Marbury v. Madison reserved the right to rule on government action in violation of constitutional principles, whether by the legislature or executive. Judicial review has placed the Supreme Court, as Brutus predicted, above the other branches, making it the final arbiter on controversies of federalism that typically have made the federal government supreme while defining what states, Congress, and the president can or cannot do. When judges strike down laws or reverse public policy, they are said to be exercising judicial activism. Activism can be liberal or conservative, depending on the nature of the law that is struck down. When the Court threw out the New York maximum-hours law in 1905 in Lochner, it acted conservatively because it rejected an established liberal statute. In Roe v. Wade, the Court acted liberally to remove a conservative anti-abortion policy in Texas. Courts at multiple levels in both the state and federal systems have struck down statutes as well as executive branch decisions. The Court's power to strike down parts of or entire laws has encouraged litigation and changes in policy.

The New Deal and Roosevelt's Plan

During the Depression, the Court transformed. Charles Evan Hughes replaced Taft as chief justice in 1929. Hughes managed a mixed group with a strong conservative four, nicknamed the Four Horsemen, who overturned several New Deal programs. The Court struck down business regulations, invalidated the National Recovery Act (1933), ruled out New York's minimum wage law, and restricted the president's powers to remove commissioners on regulatory boards. Congress raised the Court's status with a new building in Washington that represented its authority, ceremony, and independence. In 1935 the justices moved into their current building. The Court also went through another transformation as it changed ideologically to solidify New Deal laws for the next generation. After his 1936 landslide reelection, FDR responded to the rebuffs of the conservative Court by devising a plan to "pack the Court." He proposed legislation to add 1 justice for every justice then over the age of 70, which would have allowed him to appoint up to 6 new members. FDR claimed this would relieve the Court's overloaded docket, but in reality he wanted to dilute the power of the conservative majority who had been unreceptive to his New Deal proposals. The sitting Court denied any need for more justices. Conservatives and liberals alike believed such a plan amounted to an attack on the Court's independence. Many consider FDR's plan an example of an imperial presidency. The Court changed ideologically when one of the conservatives took an about-face in West Coast Hotel v. Parrish (1937), which sustained a Washington state minimum wage law. Justice Owen Roberts became "the switch in time that saved nine," meaning that there was no longer any need to try to pack the Court with additional justices. After the West Coast Hotel decision, the Court upheld every New Deal measure that came before it. Roosevelt pressed ahead with more legislation, including a national minimum wage that has withstood constitutional scrutiny ever since. Winning 4 elections, he was able to appoint 9 new justices to the Court friendly to his policies before his death in 1944.

Warren, Earl

Earl Warren controversial Chief Justice of the Supreme Court (1953-1969); he led the Court in far-reaching racial, social, and political rulings, including school desegregation and protecting rights of persons accused of crimes; presided over the Brown v. the Board of Education case. Used loose interpretation. Championed civil liberties and civil rights. The Court extended many liberties under Chief Justice Earl Warren after President Dwight Eisenhower appointed him in 1953. As attorney general for California during the war, Warren oversaw the internment of Japanese Americans, and in 1948 he was the Republican's vice presidential nominee. But any expectations that Warren would act as a conservative judge were lost soon after he took the bench. Warren's first major case was Brown v. Board of Education decided in 1954. When the National Association for the Advancement of Colored People Legal Defense Fund argued that the "separate but equal" standard set by the Court in the 1896 Plessy v. Ferguson decision was outdated and violated the Fourteenth Amendment's equal protection clause in public education, Warren rallied his fellow justices to a unanimous opinion in favor of Brown. As the district courts worked out the particulars of the integration process, the High Court issued several subsequent unanimous pro-integration rulings over the next decade. Warren was flanked by civil libertarians Hugo Black and William O. Douglas. With them, the Court set several precedents to guarantee rights to accused defendants that ultimately created a national criminal justice system. They declared that courts could throw out evidence obtained unlawfully by the police. States soon had to provide defense attorneys for indigent (poor) defendants at state expense. And arrested suspects had to be formally informed of their rights with the so-called Miranda ruling. The Supreme Court also placed a high priority on the First Amendment's protection against a government-established religion and protection for citizens' free speech. It outlawed school-sponsored prayer (Engel v. Vitale, 1962) and upheld students' rights to nondisruptive symbolic speech in schools (Tinker v. Des Moines Public Schools, 1969). The Court upheld the press's protection against charges of libel. The Warren Court legacy is that of an activist, liberal court that upheld the individual rights of minorities and the accused. Warren's legacy did not please traditionalists because his Court overturned state policies created by democratically elected legislatures. The controversial or unpopular decisions led some people to challenge the Court's legitimacy. Several Warren Court decisions seemed to insult states' political cultures and threaten to drain state treasuries. Some argued that Earl Warren should be impeached. The Warren Court had made unpopular decisions, but it had not committed impeachable acts- such as taking bribes or failing to carry out the job- so there wasn't political support in the House for Warren's impeachment. Then, as now, the only surefire way to alter the Court's membership is to await justices' retirements or deaths so a president can replace them with different nominees.

Marbury v. Madison (1803)

Established judicial review. Question before the Court: Can an appointed judge sue for his appointment, and does the Supreme Court have the authority to hear and implement this request? Decision: Yes and no, unanimous 5:0. Facts: This controversy started as a dispute regarding the procedures of appointments during a presidential transition. Outgoing President John Adams had lost reelection to Thomas Jefferson and, in one of his final acts as president, appointed several members of his own Federalist Party to the newly created judgeship. The Senate had confirmed these "midnight judges," so-called because their appointment was made so late in the tenure of President Adams. Secretary of State John Marshall, who had just been named chief justice of the Supreme Court, had prepared the commissions, the official notices of appointment, and had most of them delivered. William Marbury was among 17 appointees who did not receive official notice. Marshall simply left these to be delivered by the next administration. Once Thomas Jefferson, a Democratic-Republican, took office, he instructed his new secretary of state James Madison, to hold the commissions. Jefferson did reappoint several of those appointees, but he refused others on partisan grounds. Marbury wanted the Supreme Court to issue a court order known as a writ of mandamus forcing Madison and the executive branch to deliver the appointment to him, and thus his job. Marbury brought the case to the Supreme Court because of language in the relatively new Judiciary Act of 1789 that defined the Supreme Court's jurisdiction in cases like his. Reasoning: Marshall's Supreme Court took the case and determined that an appointed judge with a signed commission could sue if denied the job. However, they also ruled that the law entitling Marbury to the commission and the job, Section 13 of the Judiciary Act, ran contrary to Article III of the Constitution when it decided that the Court had original rather than appellate jurisdiction in such cases. Congress could not, Marshall's court said, define the Court's authority outside the bounds of the Constitution. The Court unanimously ruled that it had no jurisdiction in the matter, and in so ruling cancelled Marbury's claim. It simultaneously instituted the practice of judicial review. The Court had asserted its powers and checked Congress. Since Marbury: Marbury is a landmark for its initiation of judicial review in American jurisprudence and in defining common law. A new federal judiciary would declare void any such congressional act repugnant to the Constitution. Judicial review, striking down acts of Congress, came as a rarity after Marbury. Not until the infamous Dred Scott case in 1857 did the Court again strike down a law. During the Industrial Era (1874-1920) and into the 20th century, the Court used its power of judicial review to strike down laws with greater frequency.

Respondent

In appellate courts. The petitioner appeals the case, and the respondent responds, claiming why and how the lower court ruled correctly. The hearing lasts about an hour as each side makes oral arguments before the judges. Appeals courts don't declare guilt or innocence when dealing with criminal matters, but they may order new trials for defendants.

Stare decisis

Let the decision stand; decisions are based on precedents from previous cases. Courts follow a judicial tradition begun centuries ago in England. The common law refers to the body of court decisions that make up part of the law. Court rulings often establish a precedent- a ruling that firmly establishes a legal principle. These precedents are generally followed later as other courts consider the same legal logic in similar cases. The concept of stare decisis, or "let the decision stand," governs common law. Rulings by higher courts bind lower courts to the same ruling, binding precedent. Persuasive precedent- judges can consider past decisions made in other districts or ruling in other circuits as a guiding basis for their decision. Justice Brandeis in Burnet v. Coronado Oil & Gas Co. "stare decisis is usually the wise policy, because in most matters it is more important that the applicable law be settled than it be settled right." Especially true about rulings related to legislation, because errors in the Court's decision could be corrected by Congress. However, on matters related to the application of the Constitution, which the legislature has no power to change, Brandeis noted that the Court has often reconsidered and overturned its own previous ruling if an earlier one was made in error. Eg. 1944 case Smith v. Allwright, in which they overrule Grovey v. Townsend, which had precedent. Grovery v. Townsend ruled that the Democratic Party of Texas, as a private, voluntary organization, could determine its own membership rules even if those rules banned African Americans from membership and therefore prevented them from voting in the primary. In 1944, Lonnie E. Smith, an African American denied the right to vote in a Texas primary, brought suit, arguing that his rights under the Fifteenth Amendment were being violated.

Amicus curiae brief

Literally, a "friend of the court" brief, filed by an individual or organization to present arguments in addition to those presented by the immediate parties to a case. A friend of the court brief filed by an interest group or interested party to influence a Supreme Court decision. A high-ranking figure in the Department of Justice is the solicitor general, who works in the Washington office. Appointed by the president and approved by the Senate, the solicitor general determines which cases to appeal to the US Supreme Court and represents the US in the Supreme Court room. The solicitor general may also submit amicus curiae brief (friend of the court brief) to the Supreme Court in cases where the United States is not a party. An amicus brief argues for a particular ruling in the case. Several solicitors general have later been appointed to the High Court. (Stanley Reed, Thurgood Marshall, and Elena Kagan)

certiorari

Order from the US Supreme Court upon granting a petition for Writ of Certiorari, ordering a lower court to provide the Supreme Court with a full record of all proceedings in the lower court. A higher court reviews a decision of a lower court. The US Circuit Courts of Appeals, the circuit courts have appellate jurisdiction, taking cases on appeal. Appeals courts are especially influential because they don't determine facts; instead, they shape the law. The losing party in a trial can appeal based on the concept of certiorari, "to make more certain." Thousands more cases are appealed than accepted by higher courts. The appellant must offer some violation of established law or procedure that led to the incorrect verdict in the trial court. Appeals courts look different and operate differently from trial courts. Appeals courts have a panel of judges sitting at the bench. There is no witness stand or jury box since the court does not entertain new facts but decides instead on some narrow question or point of law. The petitioner appeals the case, and the respondent responds, claiming why and how the lower court ruled correctly. The hearing lasts about an hour as each side makes oral arguments before the judges. Appeals courts don't declare guilt or innocence when dealing with criminal matters, but they may order new trials for defendants. After years of deciding legal principles, appeals courts have shaped the body of US law.

Judicial self-restraint

Philosophy proposing that judges should interpret the Constitution to reflect what the framers intended and what its words literally say. Critics of judicial activism, when judges strike down laws or reverse public policy, tend to point out that, in a democracy, elected representative legislatures should create policy. These critics advocate for judicial self-restraint. Chief Justice Harlan Fiske Stone first used the term in his 1936 dissent when the majority outlawed a New Deal program. The Court should not, say these critics, decide a dispute in that manner unless there is a concrete injury to be relieved by the decision. Justices should not declare a law unconstitutional, strict constructionists say today, when it merely violates their own idea of what the Constitution means in a contemporary context, but only when the law clearly and directly contradicts the document. To do otherwise is "legislating from the bench," say strict constructionists. This ongoing debate about judicial activism and restraint has coincided with discussions about the Court's role in shaping national policy. Still other critics argue that judicial policymaking is ineffective as well as undemocratic. Wise judges have a firm understanding of the Constitution and citizens' rights, but they don't always study issues over time. They don't have the support systems of lawmakers, such as committee staffers and researchers, to fully engage an issue to find a solution. So when courts rule, the outcome is not always practical or manageable for those meant to implement it. Additionally, many such court rulings are just unpopular.

Per curium opinion

Phrase used to distinguish an opinion of the whole court from an opinion written by any one judge. Sometimes per curium signifies an opinion written by the chief justice or presiding judge; it can also refer to a brief oral announcement of the disposition of a case by the court that is unaccompanied by a written opinion. A brief unsigned statement of a Supreme Court decision unsigned court opinion. Those who vote against the majority and the majority opinion often write a dissenting opinion. The dissenting opinion has no force of law but allows a justice to explain his disagreements with his colleagues. While these have no immediate legal bearing, dissenting opinions send a message to the legal community or to America at large and are often referenced in later cases when the Court might revisit the issue or reverse the precedent. On occasion, the Court will issue a decision without the full explanation. This is known as a per curium opinion.

Senatorial courtesy

Presidential custom of submitting the names of prospective appointees for approval to senators from the states in which the appointees are to work. A custom whereby presidential appointments are confirmed only if there is no objection to them by the senators from the appointee's state, especially from the senior senator of the president's party from that state. The Senate firmly reserves its right of advice and consent. "In practical terms, the home state senators are almost as important as- and sometimes more important than- the president in determining who will be nominated to a particular lower-court judgeship." This practice of senatorial courtesy is especially routine with district judge appointments, as districts are entirely within a given state. When vacancies occur, senators typically recommend judges to the White House. Senate procedure and tradition give individual senators veto power over nominees located within their respective states. For US district court nominations, each of the 2 senators receives a blue slip- a blue piece of paper they return to the Judiciary Committee to allow the process to move forward. To derail the process, a senator can return the slip with a negative indication or never return it at all. The committee chairman will usually not hold a hearing on the nominee's confirmation until both senators have consented. This custom has encouraged presidents to consult with the home-state senators early in the process. All senators embrace this influence. They are the guardians and representatives for their states. The other 98 senators tend to follow the home state senators' lead, especially if they are in the same party, and vote for or against the nominated judge based on the senators' views. This custom is somewhat followed with appeals court judges as well. Appeals courts never encompass only 1 state, so the privilege and power of senatorial courtesy is less likely.

Rule of four

Requirement that a case can only be heard by the Supreme Court if four justices vote to hear the case. How cases reach the Supreme Court. Like the circuit courts, the Supreme Court accepts appeals each year from among thousands filed. The petitioner files a petition for certiorari, a brief arguing why the lower court erred. The Supreme Court reviews these to determine if the claim is worthy and if it should grant the appeal. To be more efficient, the justices share their clerks, who review the petitions for certiorari and determine which are worthy. This "cert pool" becomes a gatekeeper at the Supreme Court. If an appeal is deemed worthy, the justices add the claim to their "discuss list." On a regular basis, all 9 justices gather in conference to discuss these claims. They consider past precedents and the real impact on the petitioner and respondent. The Supreme Court does not consider hypothetical or theoretical damages; the claimant must show actual damage. Finally, the justices consider the wider national and societal impact if they take and rule on the case Once 4 of the 9 justices agree to accept the case, the appeal is granted. This rule of four, a standard less than the majority, reflects courts' commitments to claims by minorities. The Court then issues a writ of certiorari to the lower court, informing it of the Court's decision and to request the full trial transcript.

Article III

The Judicial Branch. The only court directly mentioned in the Constitution is the Supreme Court, though Article III empowered Congress to create "inferior" courts. Article III establishes the terms for judges, the jurisdiction of the Supreme Court, the definition of treason, and the right of a defendant to a jury trial.

US District Courts

The courts where most federal cases begin, the U.S. District Courts are courts of original jurisdiction and hear civil and criminal cases. The courts where litigation begins. Today's three-level federal court system consists of the US District Courts on the lowest tier, the US Circuit Courts of Appeals on the middle tier, and the US Supreme Court alone on the top. These three types of courts are known as "constitutional courts" because they are either directly or indirectly mentioned in the Constitution. All judges serving in these courts are appointed by presidents and confirmed by the Senate to hold life terms. No national court system existed under the Articles of Confederation, so the framers decided to create a national judiciary while empowering Congress to expand and define it. The Judiciary Act of 1789 cleared up the vague and brief Article III. The law established one district court in each of the 13 states plus 1 each for the soon-to-be-states of Vermont and Kentucky. The law also defined the size of the Supreme Court with 6 justices, or judges. In addition to the district courts, Congress initially created 3 regional circuit courts designated to take cases on appeal from the district courts. 2 Supreme Court justices were assigned to each of the "circuits" and were required to hold court twice per year in every state. The presiding district judge joined them to make a 3-judge intermediate panel. In a given period, the Supreme Court justices would hold one court after another in a circular path, an act that became known as "riding circuit." There are 94 district courts in the United States- at least one in each state, and for many western states, the district lines are the same as the state lines. Each district may contain several courthouses served by several federal district judges. Nearly 700 district judges nationwide preside over trials concerning federal crimes, lawsuits, and disputes over constitutional issues. Annually, the district courts receive close to 300,000 case filings nationwide, most of a civil nature. A trial court: US district courts are trial courts with original jurisdiction over federal cases. The litigants in a trial court are the plaintiff- the party initiating the action- and the defendant, the party answering the action. In a criminal trial, the government is the plaintiff, usually referred to as the "prosecution." In civil trials, a citizen-plaintiff brings suit against another, the defendant, who allegedly injured him or her. Others who may be part of a trial court are witnesses, jury members, and a presiding judge. Trial courts are finders of facts, these courts determine if an accused defendant did in fact commit a crime, or if a civil defendant is indeed responsible for some mistake or wrongdoing. Federal crimes: The US district courts try federal crimes, such as counterfeiting, mail fraud, or evading federal income taxes- crimes that fall under the enumerated powers in Article I, Section 8 of the Constitution. Most violent crimes, and indeed most crimes overall, are tried in state courts. Congress has outlawed some violent crime and interstate actions, such as drug trafficking, bank robbery, terrorism, and acts of violence on federal property. Defendants have a constitutional right to a jury and defense lawyer and several other due process rights included in the bill of Rights. The judge or jury must find the defendant guilty "beyond reasonable doubt" in order to convict and issue a sentence. Many cases are disposed of when a defendant pleads guilty before the trial. This plea bargain allows the government and the defendant to agree to a lesser sentence in exchange for the defendant's guilty plea. A plea bargain saves courts time and taxpayers money, and it guarantees a conviction. Eg. FBI agent Robert Hannsen was discovered to have sold government secrets to the Russians for years. He was charged with espionage crimes and pleaded guilty in order to avoid the death penalty. US Attorneys: Each of the 94 districts has a US attorney, appointed by the president and approved by the Senate, who represents the federal government in federal courts. These attorneys are executive branch employees who work in the Department of Justice under the attorney general. They serve as federal prosecutors, and with assistance from the FBI and other federal law enforcement agencies they prosecute federal crimes committed within their districts. Nationally, they try close to 80,000 federal crimes per year. Of those, immigration crimes and drug offenses take up much of the courts' criminal docket. Fraud is third. Civil Cases: citizens can also bring civil disputes to court to settle a business or personal conflict. Some plaintiffs sue over torts, civil wrongs that have damaged them. In a lawsuit, the plaintiff files a complaint (a brief that explains the damages and argues why the defendant should be held responsible.) The party bringing suit must prove the defendant's liability or negligence with a "preponderance of evidence" for the court to award damages. Most civil disputes, even million-dollar lawsuits, are handled in state courts. Congress has empowered the US district courts to have jurisdiction over disputes involving more than $75,000 with diversity citizenship- cases in which the 2 parties reside in different states. Disputes involving constitutional questions also land in this court. In these cases, a federal judge, not a jury, determines the outcome because these cases involve a deeper interpretation of the law than more general cases do. Sometimes a large group of plaintiffs claim common damage by one party and will file a class action suit. After a decision, courts may issue an injunction, or court order, to the losing party in a civil suit, making them act or refrain from acting to redress a wrong. Suing the government: Sometimes a citizen or group sues the government. Technically, the US operates under the doctrine of sovereign immunity- the government is protected from suit unless it permits such a claim. Over the years, Congress has made so many exceptions that it even established the US Court of Claims to allow citizens to bring complaints against the US. Citizens and groups also regularly bring constitutional arguments before the courts. One can sue government officials acting in a personal capacity. Eg. the secretary of defense could be personally sued for causing a traffic accident that caused thousands of dollars in damage to another's car. But the secretary of defense or Congress cannot be sued for the loss of a loved one in a government-sanctioned military battle. Special legislative courts: In addition to the constitutional trial courts that make up our US district courts, Congress has created a handful of unique courts to hear matters of expert concern. These are known as the special legislative courts because they are created by the legislature as opposed to the Constitution. Presidents appoint these judges and the Senate must approve them, typically for a 15 yr fixed term. These courts deal with specific issues, and therefore an experienced judge in that area of law is desired for a defined period of time. Special courts include the court of federal claims mentioned above, as well as courts that determine matters of taxation; international trade; spying and surveillance; and military matters.

Binding precedent

The decisions of higher courts that set the legal standards for similar cases in lower courts within the same jurisdiction. Court rulings often establish a precedent, a ruling that firmly establishes a legal principle. These precedents are generally followed later as other courts consider the same legal logic in similar cases. The concept of stare decisis, or "let the decision stand," governs common law. Lower courts must follow higher court rulings. Following precedence establishes continuity and consistency in law. Therefore, when a US district court receives a case that parallels an already decided case from the circuit level, the district court is obliged to rule in the same way, a practice called binding precedent. Even an independent-minded judge who disagrees with the higher court's precedent is guided by the fact that an appeal of his/her uniquely different decision will likely be overruled by the court above. That is why all courts in the land are bound by US Supreme Court decisions.

Marshall, John

Third Chief Justice of the Supreme Court (he served from 1800 to 1835). A Federalist who worked to increase the powers of the federal government over the states. He established the principle of judicial review. He and his associates carved out an important role for the Court, especially in defining the nature of the federal/state relationships, in a series of decisions. Helped establish judicial review, since he was the chief justice in Marbury v. Madison. The Supreme Court in its early years was a nondescript, fledgling institution that saw little action and was held in low esteem. President Washington appointed Federalist John Jay as the first chief justice. Several early justices didn't stay on the Court long. Jay resigned in 1795 to serve as governor of New York. the Court's reputation and role would soon change. Once President John Adams appointed Federalist John Marshall as chief justice, the Court began to assert itself under a strong, influential leader. Marshall remained on the Court from 1801 until his death in 1835, establishing customs and norms and strengthening national powers. Marshall was a Virginian who acquired a strong sense of nationalism and respect for authority and discipline during his service in the Revolutionary War. After independence, he became an ardent Federalist and attended the Virginia ratifying convention to vote in favor of ratification. Some consider John Marshall the father of the Supreme Court, since the Marshall Court established its customs and solidified the nation under the framers' plan. Throughout his 34 years as chief justice, he and his colleagues lived in a convivial atmosphere at a boarding house in Washington. Most who knew Marshall liked him. The Supreme Court, 7 members at the time, simply shared a small room in the old Capitol with Congress. It held hearings in a designated committee room on the 1st floor for 7 years until it was given more spacious quarters. It did not have its own building until the 1930s. Marshall created a united court that spoke with one voice. When he arrived, he found the Supreme Court functioning like an English court in that multiple judges issued separate opinions. Marshall insisted that this brotherhood of justices agree and unite in their rulings to shape national law. The Court delivered mostly unanimous opinions written by one judge. Marshall fortified the Union and the powers of the federal government with rulings that strengthened national supremacy and Congress's commerce power. Marshall developed a legacy of siding with Congress when controversies regarding federalism arose, strengthening the national government and expanding Congress's powers more than Jeffersonian Republicans wanted. The Marshall Court also established the principle of judicial review- the right of the Court to determine the constitutionality of a law or executive order- in one of its first landmark cases, Marbury v. Madison (1803).