History of the Federal and State Court Systems and Appellate Review

• Jurisdiction: Maryland

I. History of the federal and state court systems and appellate review

Since Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), under the principle of judicial review, in an actual case or controversy, the judicial branch controls the legislative branch by issuing decisions and orders that interpret acts of Congress, including voiding, as unconstitutional, acts of Congress. The judicial branch controls the executive branch by issuing decisions and orders regarding (a) the authority of the executive branch to act and the lawfulness and constitutionality of its conduct; and (b) interpretation of administrative rules and regulations promulgated by the executive branch. Thus, Marbury v. Madison established the principle of judicial review.

A. Federal

1. Supreme Court trial jurisdiction versus appellate jurisdiction

The Constitution

U.S. Const. art. III, § 2, provides, in part:

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their authority; . . . .
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, . . . .

Marbury v. Madison

In Marbury v. Madison, the Supreme Court interpreted its original and appellate jurisdiction, as set forth in U.S. Const. art. III, § 2, and applied the Supremacy Clause, as set forth in U.S. Const. art. VI, to hold that the Judiciary Act of 1789 was unconstitutional, to the extent that it gave the Supreme Court original jurisdiction over petitions for writ of mandamus. Marbury, 5 U.S. at 168-80.

The Court held that the framers gave original jurisdiction to the Supreme Court in cases affecting ambassadors, public ministers and consuls, and those in which a state shall be a party, while giving the Court appellate jurisdiction in all the other cases. Id. This was the first time that the Supreme Court struck down, as unconstitutional, a statute of Congress. In Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804), the Supreme Court, for the first time, declared an executive branch action to be unconstitutional.

Marbury v. Madison established the principle of judicial review. The legislative branch enacts the laws, the executive branch enforces the laws, and the judicial branch determines what those laws mean and whether they are constitutional. Thus, after Marbury v. Madison, the judiciary speaks last among the three branches and, within the judiciary, the appellate court speaks last.

2. Supreme Court appellate jurisdiction "of right" versus "discretionary"

Supreme Court evolved from appeals of right to discretionary appeals

From 1789 to 1891, the Supreme Court was the federal appellate court of right. The Judiciary Act of 1891, which created the U.S. Courts of Appeal, made a small portion of the Supreme Court's docket discretionary, including appellate cases in diversity, patent, revenue, criminal, and admiralty.

The Judiciary Act of 1925 (referred to as the Certiorari Act) made the majority of the Supreme Court's docket discretionary. Annually, the Supreme Court receives about 8,000 petitions for a writ of certiorari. The Court grants certiorari and hears oral argument in about 80 cases. Each "term of the court" commences on the first Monday in October and ends on the Sunday before the first Monday in October the following year. The Court hears oral argument between October and April and is typically in recess from July until the first Monday in October.

Supreme Court certiorari process

A party that loses in a state court of last resort or in a federal circuit court may file a petition for writ of certiorari in the Supreme Court. A certiorari petition focuses more on why the case presents an important issue and less on why the lower court was incorrect. The Supreme Court grants certiorari to address important questions regarding (a) interpretation of the U.S. Constitution, federal statutes, federal regulations, federal rules of court, and treaties; and (b) a conflict among the federal circuits and/or among state courts of last resort.

The Supreme Court accepts a case if four justices vote to issue a writ of certiorari. If the Supreme Court is seriously considering a petition for writ of certiorari, the Court will issue a "call for response," asking for a brief in opposition to the petition for a writ of certiorari. The Court requests about 200 briefs in opposition annually. See David C. Thompson & Melanie F. Wachtell, An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General, 16:2 Geo. Mason L. Rev. 237, 245-50 (2009) (analyzing statistics from the 2001 term through the 2004 term). This represents less than 3% of all petitions for a writ of certiorari.

If the Supreme Court is still seriously considering the case, it will "conference" the case (about 250 cases are "conferenced" annually). Then the justices vote whether to grant certiorari. About 75 petitions are granted annually. Although overall, the chance that certiorari will be granted in any given case is 0.9%, that chance increases to 8.6% for cases for which the Court called for a response. See id.

3. Supreme Court appeals after certiorari is granted

After issuing a writ of certiorari, the Supreme Court establishes a briefing schedule for the Brief of Petitioner, Brief of Respondent, and discretionary Reply Brief of Petitioner.

The Brief of Petitioner explains why the lower court was incorrect and why, when the law is applied to the record in the case, the Court should reverse the lower court. The Brief of Petitioner often asks the Supreme Court to declare a statute unconstitutional, either on its face or as applied, and/or asks the Court to set policy and/or make new law. If Congress has "already spoken," the Court's task, under Marbury v. Madison, is limited to interpretation of the law. The Brief of Respondent explains why the lower court was correct and why, when the law is applied to the record in the case, the Court should affirm the lower court. The Reply Brief of Petitioner explains why the Respondent is incorrect in its belief that the lower correct did not commit legal error.

After the briefs are filed, the Supreme Court hears oral argument en banc, meaning all nine justices hear the argument (although six justices constitute a quorum). In most cases, each side is granted 30 minutes to present oral argument. The Petitioner may present rebuttal oral argument if the Petitioner reserved time from its 30 minutes for rebuttal.

After oral argument, the Supreme Court discusses the case. Prior to the Roberts Court, discussion began with the "baby justice" and worked toward seniority. The Roberts Court begins with the Chief Justice and works toward the least senior justice. No justice may speak a second time until all justices have spoken once. After discussion, the justices vote.

If the Chief Justice is in the majority, the Chief Justice assigns a justice to write the Court's opinion. If the Chief Justice is not in the majority, the senior justice assigns a justice to write the Court's opinion. Justices in the...