The federal judiciary system has three steps: district court, circuit court, and the Supreme Court, and despite what you see on screen, many cases do not end with that first courtroom verdict. This is how the federal judiciary system works, what makes a case worthy of consideration by the Supreme Court, and what happens when case lands in front of SCOTUS. We talked with Erin Corcoran, Executive Director for the Kroc Institute of International Peace Studies, and Behzad Mirhashem, Assistant Federal Public Defender in New Hampshire and professor of law at UNH Law.
Listen to our breakdown of Tinker v Des Moines in IRL1: Free Speech in Schools.
Transcript
Hannah McCarthy: I've got to be honest, Nick. We've been doing this show for years now, and I still don't entirely grasp the court system. Can I say that on this show? Yeah, because we've got district courts, right? Circuit courts. Courts of Appeals. The Supreme Court. The Supreme Court. I pretty much have. But like everything else, it's. It's a tangled web.
Nick Capodice: Well, I hope we can untangle that web today, Hannah. And actually, I think it might be more appropriate to think of it as a ladder instead of a web. Because though television and movies make it seem like cases end with the judge announcing a verdict. For many cases, that is just the first step on the ladder. You're listening to Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we're talking about the federal judiciary system and how a case can go from that first trial all the way up to the Supreme Court.
Hannah McCarthy: Okay. Nick, I just want to make sure I understand the difference between the federal judiciary system and the state judiciary system, because most people, if they're going to be dealing with the legal system, say a divorce or a contract dispute or even like a traffic violation, that is all happening in state court.
Nick Capodice: Yes. And to complicate it, every state has completely different laws. Federal laws are for the country as a whole. But I will say that individual state court systems do look a lot like the federal court system.
Hannah McCarthy: Like the same structure.
Nick Capodice: Right. And what we're discussing today, you know, trial courts and appeals and the Supreme Court, it's probably pretty similar to what you're going to see in your own state.
Erin Corcoran: So there's three main levels to the federal judiciary. The first is the district court level, which is the trial court level.
Nick Capodice: This is Erin Corcoran, Civics 101, talked with her back in 2019. Then she was a professor at the University of New Hampshire School of Law, and she is now the executive director for the Kroc Institute of International Peace Studies.
Erin Corcoran: And there's 94 federal district courts in the United States.
Hannah McCarthy: Pause there. We got to define it. What's a trial court?
Erin Corcoran: Sure. So a trial court hears the questions for the first time. And they're primarily concerned with working through the facts of the case, trying to understand what the different issues are and developing sort of a timeline, a sequence of events, what happens, and then also what kind of legal recourse the parties may have. If you don't like that decision, either party in the civil law context can ask for the appellate court to review the decision of the district court.
Nick Capodice: And we'll get to those appellate courts in a minute. But, Hannah, when you think of the popular depictions of court proceedings, you're most likely thinking about a trial court.
Erin Corcoran: Lawyers on either side. Usually you have a jury. People are called up to testify. It's sort of what you see in Law and Order on TV. That's the trial court.
Nick Capodice: And there are trial courts in the state judiciary system as well. But for cases involving federal law, what we're focusing on today, we've got these 94 district trial courts.
Hannah McCarthy: Are these broken up geographically somehow?
Nick Capodice: Yeah. Every state gets at least one district, including the District of Columbia and Puerto Rico. But some states with much bigger populations, they're divided into two, three or four districts. And we also have territorial courts for Guam, the Northern Mariana Islands and the U.S. Virgin Islands. Those are like district courts with like a few differences.
Hannah McCarthy: So do these district courts see every case that is not relevant to state law?
Erin Corcoran: A federal court is a court of limited jurisdiction, and they basically have jurisdiction over constitutional questions. Does this law violate my First Amendment rights, my right to freedom of speech, freedom of association? A federal district court would be the court that would hear that claim. They also can hear what we refer to as federal question claims. This is sort of Congress saying if this question is about federal law, you know, whether or not an agency has the authority to do something, that would be another example of the kind of question that that court could hear.
Nick Capodice: Hannah, you may remember a little case that we've talked about in several episodes Tinker v Des Moines.
Hannah McCarthy: Oh yeah, of course, that was the case about First Amendment rights of students during the Vietnam War. Right. There were black armbands involved.
Nick Capodice: Yeah. And if you want to do a deep dove into that case and other cases of free speech in schools, check out that episode. The link is in the show notes. But today Tinker V Des Moines is going to be our real life example of how a case moves through the federal judiciary system all the way up to the Supreme Court.
Hannah McCarthy: Let's do this.
Nick Capodice: All right. Short version, Tinker V Des Moines, 1965, Mary Beth Tinker and her brother John, along with her friend Christopher Eckhardt, wore black armbands to mourn the dead on both sides in the Vietnam War. These were worn in protest and they were suspended and they sued their school district for that suspension. And here's a quick clip of John Tinker talking about what happened when the school board got wind of their plan to wear these armbands.
Archival Audio: And the principal got a hold of the other principals in town and they had a meeting and they decided to not permit the wearing of black armbands. Then I went to classes uneventfully for the first half of the day. The first period in the afternoon there was a phone call, John Tinker report to the office. So I did and I talked with the principal of the school for a long chat, maybe 45 minutes or so, and he said that he thought maybe I'd gotten bad information or information from bad sources. I might there might have been some communist influence that would cause me to think the way I did about the war. He said that it's going to hurt your college career and so on. And at the end he said, I'm going to ask you to take off that armband. If you take it off and go back to class, it'll just be treated. Nothing happened at all, he said. But I don't think you're going to do that, are you?
Hannah McCarthy: Well, we wouldn't be talking about this case if he did.
Nick Capodice: That's right. The students were suspended. They sued the school district in the U.S. District Court for the southern district of Iowa, saying the policy against these armbands that had been created violated their First Amendment rights.
Hannah McCarthy: Aha. So this is a First Amendment case, which means it has to do with federal law and not state law, which is why it was filed in a federal court. Yes.
Nick Capodice: Yes. The district court sided with the school district and dismissed the case.
Hannah McCarthy: Okay. But we know they appealed it.
Nick Capodice: They appealed it, yeah. A party can, in most cases, appeal the decision to a higher court known as an appellate court if they think the lower court was wrong in some way. These higher courts are the next level up in the ladder. They're called the United States Courts of Appeals, also known as circuit courts. And there are 12 geographical circuit courts and one federal circuit court.
Hannah McCarthy: So how does someone know which circuit court to appeal to?
Nick Capodice: Circuit courts cover different regions, so 93 of the districts are lumped into 11 circuits, and the District of Columbia gets the circuit court all to itself, and that's known as the D.C. Circuit. And those D.C. courts cover a lot of federal legislation, given that the US Capitol is located in that district.
Hannah McCarthy: And you also said there is a federal Circuit Court of Appeals. How does that one work?
Nick Capodice: The federal circuit court, unlike the other circuit courts, it's not dependent on geography, but the type of case. So notably that federal circuit court deals with cases about patents, federal employee benefits and government contracts. When a case moves upward in the chain, any decision in the higher court takes precedent over the lower court.
Hannah McCarthy: Now, does the appellate court hear the whole case again?
Behzad Mirhashem: Most of the work of an appellate court is done in writing.
Nick Capodice: This is Behzad Mirhashem from the University of New Hampshire School of Law Civics 101 originally talked to him back in 2019.
Behzad Mirhashem: What happens is, if they agree to hear a case, then the parties submit briefs. Those are documents in which both sides present their arguments in writing.
Erin Corcoran: That appeal is less dramatic. Most of that work is done before they actually present the case to the court, and it's all done with written briefs. And then the court may have what's called an oral argument, an opportunity for each party to give an oral summation of their legal arguments to the appellate body.
Nick Capodice: A group of circuit court judges might vote to do one of four things they can uphold the lower court's ruling. They can reverse the lower court's decision. They can remand it. That's sending it back to the lower courts to be reheard. Or finally, they can modify that decision. In the case of Tinker V Des Moines, the Tinker family appealed to the US Court of Appeals for the Eighth Circuit, and a tie vote by the judges upheld the ruling by the District Court.
Hannah McCarthy: And this is where the Supreme Court comes in.
Nick Capodice: Yeah, they had one more level they could climb on that federal judiciary ladder.
Hannah McCarthy: All right. But before we get there, just a quick question. So you've got all of these circuit courts that are ruling on cases that come to them based on their geography. But what if you had a situation of two circuit courts hearing similar cases and coming up with different decisions like, say, a group of students in Florida also wanted to wear clothing in symbolic protest of war. And the circuit court covering Florida said that actually it was a violation of First Amendment rights for a school to ban students from wearing certain clothes in symbolic protest.
Erin Corcoran: I think with respect to the different circuits, because they are regionally based and geographically based, reflexively, their opinions will be different, sort of in part based on sort of what kind of cases come up through them. The circuit courts are only hearing appeals that are coming from district courts in their circuit. So, for example, if a New Hampshire judge's decision was appealed to the First Circuit and a California or Washington state judge's decision was appealed to the Ninth Circuit, the Ninth and First Circuit could in theory, have come up with different rulings. And that would be what we refer to as a circuit split where there is disagreement among the circuits. And so the decision by the First Circuit would be what everyone living in the First Circuit would have to abide by, and those in the Ninth Circuit would have to abide by the Ninth Circuit ruling.
Nick Capodice: And we all know who loves a circuit court split the US Supreme Court. And we're going to get to that right after the break.
Hannah McCarthy: But first, a warm and gentle reminder that Civics 101 is produced by a nonprofit radio station, meaning that for the most part, we sing for our supper. If you enjoy civics one on one, if you learn anything from it. I know I do. Please consider giving us a donation at Civics101podcast.org.
Nick Capodice: All right, we're back. We're talking about federal courts. And let's look back at our federal judiciary ladder real quick, Hannah. We've got district courts where trials happen. There are 94 of those spread out across the country. And then we've got the US Circuit Courts of Appeals. There's 12 of those and one federal court of Appeals.
Hannah McCarthy: Okay. I think this means that we have finally reached the Supreme Court. We have talked about a lot of Supreme Court cases on this show, and a lot of them started months, if not years earlier in lower courts in district or state courts. What makes a case worthy of the Supreme Court?
Nick Capodice: All right. So as we've said, district courts hear the original cases. That means they have something that's called original jurisdiction. Now, federal circuit courts here appeals, meaning they have appellate jurisdiction. But the Supreme Court is special. Here's bizarre admission.
Behzad Mirhashem: The U.S. Supreme Court has both original and appellate jurisdiction. Its original jurisdiction is basically over a few kinds of cases, say, you know, there's a dispute between New Hampshire and Maine over where the boundary line is. And so that kind of a controversy between two states, the Supreme Court has original jurisdiction over it, but mostly its jurisdiction is appellate. It reviews cases that come to it from the lower courts. It has broad powers to basically exercise that kind of jurisdiction over cases that are deciding issues of federal law or federal constitution.
Nick Capodice: So again, this includes cases that are coming up through the federal court, those district and circuit courts we just talked about, but also cases that may have started in the state court system, but that end up involving questions of federal law in some way.
Behzad Mirhashem: But as you can imagine, there's like tens of thousands, hundreds of thousands of cases like that every year. And so the kind of cases that they take agree to review, generally speaking, are either cases where the lower courts have strongly disagreed. A federal appeals court may disagree with another federal appeals court. You have those kinds of splits and authority.
Hannah McCarthy: The circuit court splits, right.
Nick Capodice: Federal law isn't exactly federal. If different parts of the country can't agree on how that law is interpreted.
Behzad Mirhashem: Or very occasionally, if there is an issue that they consider of such enormous importance that they decide to hear the case even before such a split has developed.
Hannah McCarthy: Behzad mentioned that the Supreme Court could get thousands of these appeals a year, and we know it does not hear all of them.
Nick Capodice: Not even close. The Supreme Court is discretionary. It chooses which cases it thinks need to be reviewed because for some reason, a lower court's decision wasn't enough.
Behzad Mirhashem: There's different categories of cases. Obviously, one major category is cases arising under the federal constitution, first Amendment issues about free speech or religion, Second Amendment, gun rights, Fourth Amendment, search and seizure. So federal constitutional rights are a big part of their docket, but they also have to decide all sorts of questions of just federal law. Congress has passed the law. There's disagreement among the lower courts about what that law means. And so they're interested in important issues of, you know, federal statutory law as well.
Hannah McCarthy: Doesn't the Supreme Court have another role as well to act as a check on power? I mean, the court is focused on all these questions of constitutional rights that are playing out all over the country. But doesn't it also have to provide a check on Congress and the president?
Erin Corcoran: Generally speaking, the courts don't like to get involved in actions that the president or Congress are taking, usually because those are often seen as political questions.
Nick Capodice: This is Erin Corcoran.
Erin Corcoran: However, there are times in which either branch of government may be overstepping their constitutionally prescribed limits, and that is when the court has a vital role in checking that power to say, You President, don't have that power under the Constitution and we're going to stop you from doing that because it does violate the Constitution.
Nick Capodice: So the Supreme Court is constantly weighing questions of constitutionality, both in cases dealing with the powers of Congress and the president and in whether to take up appealed cases from all around the country.
Hannah McCarthy: Okay. Let's go back to Tinker V Des Moines. Right, because this is a constitutional question. Here you have students who think that the school district creating this policy is infringing on their constitutional right to free speech. So once you've figured out that your case might be a good candidate for the Supreme Court, what do you need to do to convince the Supreme Court to choose your case? Over all the other cases they have to weigh.
Nick Capodice: You write a pitch.
Erin Corcoran: Once they've gone to the through the circuit court level, a party can appeal and ask as a matter of discretion that the Supreme Court take on that case. That party would follow what would be known as a petition for certiorari to the Supreme Court.
Nick Capodice: Sometimes just called a cert petition.
Erin Corcoran: The Supreme Court votes on whether or not to hear that petition, and then if they decide to hear that petition, they will then schedule a briefing schedule and oral arguments for that.
Behzad Mirhashem: They get many thousands of these so-called cert petitions every year, and they grant cert in a small fraction of those cases. I think it's important to understand that most people think of appellate courts as being in the business of correcting errors of lower courts. The Supreme Court has said many times they don't have the manpower to do that. There's too many errors, so they don't take cases just to correct errors. They take cases to resolve these sort of important disagreements that have emerged among the lower courts.
Hannah McCarthy: So in Tinker V Des Moines, the students and their attorneys submitted a petition saying something like, Hey, this is a First Amendment case. We think you should consider it. And the Supreme Court said, you know what? Yeah, you're right. Is this the intense oral argument part?
Nick Capodice: Almost before that, the two parties submit their arguments in writing. And then there are also amicus briefs.
Behzad Mirhashem: Amicus briefs are briefs filed not by the parties, but by friends of the court, some organizations that have an interest in the issue. So the Supreme Court justices and more realistically, with the help of their clerks, review all of these briefs. And, you know, depending on the issue, they may or may not come to some sort of firm conclusion about how the case should be decided. The sort of ultimate stage is the oral argument where each side gets a limited amount of time, typically in the U.S. Supreme Court, 30 minutes to present oral argument and address any questions that the judges may have about certain issues about the record, what happened in the lower courts, or hypotheticals they may have about, you know, how would you handle this? And, you know, such and such a situation.
Hannah McCarthy: 30 minutes seems like such a small amount of time.
Nick Capodice: And it can get pretty intense. So let's listen to some of the oral arguments from Tinker v Des Moines. In this clip, you can hear the school district's attorney, Allen Herrick, defending the decision to ban armbands, in part because students at school knew people who had been killed in Vietnam and the protest could cause disruption. And then Justice Thurgood Marshall, questioning that line of thinking.
Archival Audio: ... Felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.
Archival Audio: Do we have a city in this country that hasn't had someone killed in Vietnam?
Archival Audio: No, I think not, Your Honor, but I don't think it would be an explosive situation in most, most cases. But if someone is going to appear in court with an arm band here protesting the thing that it could be exclusive, that's the situation we find.
Archival Audio: It could be what it could be. Is that your position?
Archival Audio: Yes.
Archival Audio: There was no evidence that it would be. Is that the rule you want us to adopt?
Archival Audio: No, not at all.
Behzad Mirhashem: The practice in the Supreme Court is right after the oral argument. They need to have a discussion, take at least a preliminary vote, and then the chief justice, if he's in the majority, assigns the writing of the opinion to one of the justices.
Nick Capodice: And if the chief justice happens to be in the minority, the most senior justice in the majority assigns the writing of the opinion.
Behzad Mirhashem: Many decisions of the court are unanimous, but in the Supreme Court, more than other courts, you have a majority opinion and often a dissenting opinion, one or more. And then there could be concurring opinions. The judge agrees maybe with the result, but has a somewhat different take on the analysis. So such a such a justice may write a concurring opinion, and then those are draft opinions. And a lot of times, as the case moves along and these drafts get circulated among the chambers of the various justices, coalitions can shift and opinions can get edited and and out eventually comes the final product.
Hannah McCarthy: So what happened with Tinker V Des Moines?
Nick Capodice: The Supreme Court went in the students favor. It said that a public schools prohibition of students wearing armbands is a form of symbolic protest, was a violation of their First Amendment rights.
Archival Audio: To freedom of speech protest so long as the protest does not disrupt order or interfere with the rights of other.
Hannah McCarthy: Now, I think in terms of the actual people ruling, the people making these decisions, I'm curious how someone actually becomes a federal judge. Is it the same process as becoming a justice on the Supreme Court like nomination and confirmation?
Nick Capodice: Exactly the same.
Erin Corcoran: They are nominated by the president and confirmed by the Senate and for federal judges and circuit court judges. The current rule in the Senate is they need to have 51 or more votes in favor of them.
Nick Capodice: But here's something interesting. The Constitution doesn't say a Supreme Court justice has to be a certain age, have a certain education, or even a certain profession. They don't have to have native born US citizenship. They just need to be trained in the law. There's no requirement that you've been a judge before. Though a lot of nominees are judges that came from lower down in the federal judiciary ladder. And Erin had one last thing she wanted listeners to take away about how our federal court system works.
Erin Corcoran: The court's responsibility is to interpret what the law says. It's not to make new law. It's not to decide cases by what? Whether a judge thinks something is morally right or wrong. You know, oftentimes when I've talked with judges, they are confined and limited by the four corners of the statute and the four corners of the constitution. And so sometimes they have to make decisions that they don't like, but that's they're upholding their oath to uphold the Constitution and to interpret the law. And I think sometimes people think that the courts have more power than that.
Hannah McCarthy: This episode was produced by Christina Phillips with help from me, Hannah McCarthy and Nick Capodice. Our staff includes Jacqui Fulton. Rebecca Lavoie is our executive producer. Music In this episode by Ketsa, Bio Unit, Sven Lindvall, Frequency Decree, Nul Tiel Records, Rocky Marciano, Walt Adams and Arthur Benson. If you got a little something out of this episode and you're a fan of Civics one on one, please leave us a review wherever you're listening. We love to know what you think, what you like, but you don't, and how we can be the best little civics podcast in the world. Civics one one is a production of NHPR New Hampshire Public Radio.
