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Judicial Review

The term judicial review refers to a court's review of a decision of a lowercourt in order to determine whether an error was made. When speaking of the Supreme Court, the term also refers to the Court's power to pass judgment on the constitutionality of actions of state and federal legislatures and courts.The most common form of judicial review is the review of a lower court decision by a higher court, whether it be state or federal. Courts usually reviewthese decisions in the appeals process, when a losing party in a case claimsan error was made and appeals to the higher court to examine the decision.
The Functions of Judicial Review
Judicial review has three functions. First, it allows justice to be served bystriking down erroneous decisions by lower courts. Second, appellate courtsmonitor the performance of lower courts; lower courts have an incentive to apply the law correctly if the possibility exists that their decisions may be overturned. Third, important controversies regarding the law are examined andresolved for the future guidance of courts and individuals. This third function is the primary concern of the highest courts, which in most cases agree tohear appeals only at their discretion.
There is no right to appeal guaranteed by the U.S. Constitution. The right toappeal is created by state constitution or by federal or state statute. Howa case may be brought through a state court system on appeal depends on boththe court system structure and statute. In most instances, after a case is first tried there is a right of appeal to the next higher court. Typically, after one appeal further appeal is allowed only at the discretion of the highercourt. Defendants in certain types of cases may have the right of automatic appeal to the state supreme court, however. For example, in some states defendants in death penalty cases have the right of appeal from the trial court directly to the state supreme court.
Appeals are not new trials. No jury is assembled; instead a panel of severaljudges, usually at least three, review the case for error. The facts of the case as found by the jury (or the judge in a non-jury trial) are accepted by the appellate court, and the appellant may not introduce new facts that couldhave been presented at the trial. This is because the credibility of witnesses and other matters of fact are best determined by the jury at the time of the controversy; the appellate court has only a cold record and is not able todirectly examine the demeanor of witnesses.
What the appellate court does examine is the application of law and rules ofprocedure to determine their validity. Depending on the contentions of the appeal, they typically examine the proper application of the rules of evidenceas to the admission of evidence by both parties; the proper instruction of the jury as to the questions of law involved; whether the evidence supports theverdict; and whether applicable rules or guidelines for sentencing were followed. In most cases only the contentions or error made in the appeal are considered, and the claim must have been raised at the time of trial. Only the most extreme cases of plain error are considered if issues are not made part ofthe trial record when they occur.
If error is found, it must be substantial enough to have significantly affected the outcome of the trial. Harmless error in procedural details or other error that would make no difference to the outcome is insufficient to alter thejudgment of the lower court.
Appellate Procedure
The structure of state court systems varies widely. Some states have separatecivil and criminal trial courts, and some have more than one level of appellate review. Typically, however, aside from special courts of limited jurisdiction, a three-tier structure can be discerned: the trial court level, the appellate level, and the state supreme court, which mirrors that of the federalsystem of district courts, courts of appeals, and the Supreme Court.
The appeals procedure is similar for both the state and federal courts of appeals as well as with the state supreme courts and the U.S. Supreme Court. With some exceptions, appeal is allowed only after final judgment in a case. After the final judgment in a case is rendered, the losing party may believe heor she lost the case because the law was not properly applied or that procedural rules were not properly followed. The person may then file for an appeal.Appeals must be commenced within a specified time from the delivery of finaljudgment.
The appealing party, now called the appellant or sometimes the plaintiff in error, now must file a brief in support of the claim of error, which will state the applicable facts of the case and of law and an argument supporting thecontention of error. Specific rules, which may vary depending on the court and jurisdiction, must be followed as to the form and length of the brief. A complete record of the case must be sent to the appellate court, which will include a complete transcript of the trial, the verdict, and the final judgmententered. The opposing party in the case, now called the appellee, is notifiedof the intent to appeal and also files a brief in response. At this point the case is scheduled for oral argument.
After the court has reviewed the record and the briefs and heard oral argument, it makes its ruling in the form of a written opinion setting forth its decision and the legal reasoning behind it. Most lower court decisions are unanimously affirmed by appellate courts. If error is found, the appellate court may reverse the decision, modify it, or remand (return) it to the lower courtfor further proceedings. If the judgment is affirmed, the appellant may seekan appeal in a higher court. If there is no higher court except the state orfederal court of last resort, any appeal is only at the discretion of that court.
Appeals to the U.S. Supreme Court
The jurisdiction of the Court to hear cases is of two types: original and appellate. Cases of original jurisdiction are those for which the Supreme Courtis the court of first rather than last resort, such as suits between states;that is, the Court is the trial court for these cases. Other examples of original jurisdiction are certain limited appeals from cases involving the reapportionment of legislative districts and the disposition of questions of law from lower courts. Most cases the Court hears, however, are cases of appellatejurisdiction, appeals after a judgment in a lower court.
The Court hears appellate cases only at its own discretion. To seek a reviewof one's case by the Court, a party must file a petition for a writ of certiorari, which is a command to the lower court to send the record of thecase to the Supreme Court for review. The justices vote on each petition, andif four of them want to hear the case, certiorari is granted. If certiorari is denied, no further litigation is possible and the matter isclosed.
For certiorari to be granted, appeal from a decision of a lower federal court must involve a constitutional question or a question of federal law.If the case arose in a state court, all state appeals must have been exhausted. The Court denies certiorari in the great majority of cases; the controversy of individual parties is of less concern to the Court than unresolved questions of constitutional interpretation and federal law.
If certiorari is granted, the record of the case is delivered to the Court, along with briefs by the appellant and appellee (sometimes called petitioner and respondent), and the procedure from there follows the outline givenabove. The Court then reviews the record, and oral argument is heard by theCourt. The appellant and appellee are each allowed a brief time in which to argue their positions. A party may not have time to discuss all the issues; thus the party's brief must contain the argument as well, in all its particulars. The justices may question the appellant and appellee when they present their oral arguments, even interrupting them to do so if they desire.
After oral argument is heard, the justices meet in private and discuss the case, and later vote on its disposition, with the majority vote determining theoutcome. A opinion is then written and issued; the chief justice assigns thewriting of the opinion, unless he is in the minority, in which case the senior justice in the majority assigns the writing. Drafts of the opinion may bediscussed and revised before the final version is issued. A justice or justices may write a concurring opinion if they have reached the same conclusion for other or additional reasons or they wish to stress some point not mentionedin the majority opinion. A minority member or members may issue a dissentingopinion explaining their reasons for disagreeing with the majority.
If the judgment of the lower court is affirmed, the matter is concluded. If error is found, the Court may modify the judgment, reverse it, or remand it tothe lower court for further proceedings.

Further Readings

  • The Guide to American Law: Everyone's Legal Encyclopedia. St.Paul, MN: West, 1983.
  • Hornstein, Alan D. Appellate Advocacy in a Nutshell. St. Paul, MN:West, 1984
  • Hazard, Geoffrey C. Jr., and Michele Taruffo. American Civil Procedure: An Introduction. New Haven, CT: Yale University Press, 1993.
  • James, Fleming, and Geoffrey C. Hazard Jr. Civil Procedure. Boston: Little, Brown, 1985.

Additional topics

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