Judicial Vocabulary

Morgan Sanders

Activist approach

• The view that judges should discern the general principles underlying the Constitution and its often vague language and assess how best to apply them in contemporary circumstances, in some cases with the guidance of moral or economic philosophy

Amicus curiae

• A Latin term meaning “a friend of the court”. Refers to interested groups or individuals, not directly involved in a suit, who may file legal briefs or make oral arguments in support of one side.

Brief

• A legal document prepared by an attorney representing a party before a court. The document sets forth the facts of the case, summarizes the law, gives the arguments for its side, and discusses other relevant cases.

Civil law

• The body of rules defining relationships among private citizens. It consists of both statutes and the accumulated customary law embodied in judicial decisions (“the common law”)

Class action suit

• A case brought into court by a person on behalf of not only himself but all other persons in the country under similar circumstances. For example, in Brown v. Board of Education of Topeka, Kansas, the Supreme Court decided that not only Linda Brown but all others similarly situated had the right to attend a local public school of their choice without regard to race.

Concurring opinion

• A Supreme Court opinion by one or more justices who agree with the majority’s conclusion but for different reasons.

Constitutional court

• A federal court exercising the judicial powers found in Article III of the Constitution and whose judges are given constitutional protection: they may not be fired (they serve during “good behavior”), nor may their salaries be reduced while they are in office. The most important constitutional courts are the Supreme Court, the 94 district courts, and the courts of appeals (one in each of 11 regions plus one in the District of Columbia).

Court of appeals

• The federal courts with authority to review decisions by federal district courts, regulatory commissions, and certain other federal courts. Such courts have no original jurisdiction; they can hear only appeals. There are a total of 12 courts of appeals in the United States and its territories.

Criminal law

• The body of rules defining offenses that, though they harm an individual (such as a murder, rape, and robbery), are considered to be offenses against society as a whole and as a consequence warrant punishment by and in the name of society.

Dissenting opinion

• A Supreme Court opinion by one or more justices in the minority to explain the minority’s disagreement with the Court’s ruling.

District courts

• The lowest federal courts where federal cases begin. They are the only federal courts where trials are held. There are a total of 94 district courts in the United States and its territories.

Diversity cases

• Cases involving citizens of different states over which the federal courts have jurisdiction as described in the Constitution.

Dual sovereignty doctrine

• State and federal authorities can prosecute the same person for the same conduct. The Supreme court has upheld this doctrine because:– Each level of government has the right to

enact laws serving its own purposes– Neither level of the government wants the

other to be able to block prosecution of an accused person who has the sympathy of the authorities at one level

Federal-question cases

• Cases concerning the Constitution, federal law, or treaties over which the federal courts have jurisdiction as described in the Constitution.

Fee shifting

• A law or rule that allows the plaintiff (the part that initiates the law suit) to collect its legal costs from the defendant if the defendant loses.

In forma pauperis

• A Latin term meaning “in the form of a pauper”. Someone who is without the funds to pursue the normal costs of a lawsuit or criminal defense. Upon the court's granting of this status the person is entitled to waiver of normal costs and/or appointment of counsel (but seldom in other than a criminal case).

Judicial review

• The power of the courts to declare acts of the legislature and of the executive to be unconstitutional and hence null and void.

Legislative court

• A court that is created by Congress for some specialized purpose and staffed with judges who do not enjoy the protection of Article III of the Constitution. Legislative courts include the Court of Military Appeals and the territorial courts.

Litmus test

• In chemistry a way of finding out if a liquid is acid or alkaline. The term is used in politics to mean a test of ideological purity, a way of finding out if a person is a dyed-in-the-wool liberal or conservative or what his or her views are on a controversial question.

Marbury vs. Madison

• Background: The case began on March 2, 1801, when an obscure Federalist, William Marbury, was designated as a justice of the peace in the District of Columbia. Marbury and several others were appointed to government posts created by Congress in the last days of John Adams's presidency, but these last-minute appointments were never fully finalized. The disgruntled appointees invoked an act of Congress and sued for their jobs in the Supreme Court.

• Questions: Is Marbury entitled to his appointment? Is his lawsuit the correct way to get it? And, is the Supreme Court the place for Marbury to get the relief he requests?

• Decision: Yes; yes; and it depends. The justices held, through Marshall's forceful argument, that on the last issue the Constitution was "the fundamental and paramount law of the nation" and that "an act of the legislature repugnant to the constitution is void." In other words, when the Constitution--the nation's highest law--conflicts with an act of the legislature, that act is invalid. This case establishes the Supreme Court's power of judicial review.

McCulloch vs. Maryland

• Background: In 1816, Congress chartered The Second Bank of the United States. In 1818, the state of Maryland passed legislation to impose taxes on the bank. James W. McCulloch, the cashier of the Baltimore branch of the bank, refused to pay the tax.

• Questions: The case presented two questions: Did Congress have the authority to establish the bank? Did the Maryland law unconstitutionally interfere with congressional powers?

• Decision: In a unanimous decision, the Court held that Congress had the power to incorporate the bank and that Maryland could not tax instruments of the national government employed in the execution of constitutional powers. Writing for the Court, Chief Justice Marshall noted that Congress possessed unenumerated powers not explicitly outlined in the Constitution. Marshall also held that while the states retained the power of taxation, "the constitution and the laws made in pursuance thereof are supreme. . .they control the constitution and laws of the respective states, and cannot be controlled by them."

Opinion of the court

• A Supreme Court opinion written by one or more justices in the majority to explain the decision in a case.

Per curiam opinion

• A brief, unsigned opinion issued by the Supreme Court to explain its ruling.

Plaintiff

• The party that initiates a lawsuit to obtain a remedy for an injury to his or her rights.

Political question

• An issue that the Supreme Court refuses to consider because it believes the Constitution has left it entirely to another branch to decide. Its view of such issues may change over time, however. For example, until the 1960s the Court refused to hear cases about the size of congressional districts, no matter how unequal their populations. In 1962, however, it was decided that it was authorized to review the constitutional implications of this issue.

Remedy

• A judicial order preventing or redressing a wrong or enforcing a right.

Section 1983 case

• Section 1983 of Chapter 42 of the United States Code allows a citizen to sue a state or government official who has deprived the citizen of some constitutional right or withheld some benefit to which the citizen is entitled.

Senatorial courtesy

• The custom in the U.S. Senate of refusing to confirm a presidential appointment to office opposed by both senators from the state of the appointee or by the senior senator of the President's party.

Solicitor general

• The solicitor general is the third-ranking officer of the Department of Justice, right after the attorney general and the deputy attorney general. The solicitor general what cases the government will appeal from lower courts and personally approves every case the government presents to the Supreme Court.

Sovereign immunity

• A doctrine that a citizen cannot sue the government without its consent. By statute, Congress has given its consent for the government to be sued in many cases involving a dispute over a contract or damage done as a result of negligence.

Standing

• A legal concept establishing who is entitled to bring a lawsuit to court. For example, an individual must ordinarily show personal harm in order to acquire standing and be heard in court.

Stare decisis

• A latin term meaning “let the decision stand”. The practice of basing judicial decisions on precedence established in similar cases decided in the past.

Strict constructionalist approach

• The view that judges should decide cases on the basis of the language of the Constitution.

Supreme court of the United States

• America's highest court, which has the final power to decide cases involving the interpretation of the U.S. Constitution, certain legal areas set forth in the Constitution (called federal questions) and federal laws. It can also make final decisions in certain lawsuits between parties in different states. The U.S. Supreme Court has nine justices -- one of whom is the Chief Justice -- who are appointed for life by the President and must be confirmed by the U.S. Senate. Most states also have a supreme court, which is the final arbiter of the state's constitution and state laws. However, in several states -- most notably New York and Maryland, where it's called the "Court of Appeals," and Massachusetts, where it's called the "Supreme Judicial Court" -- the highest state court uses a different name.

Writ of certiorari

• A latin term meaning “made more certain”. An order issued by a higher court to a lower court to send up the record of a case for review. Most cases reach the Supreme Court through the writ of certiorari, issued when at least 4 of the 9 justices feel the case should be reviewed.