“When people come to court, other than lawyers, it’s usually a new experience for them,” retired Judge Harry Siamas said in 2023. Courts can easily intimidate and overwhelm American citizens, many of whom have never seen the inside of a courtroom, but know it can change their lives.
For this reason, the Leagues of Women Voters voted overwhelmingly at the 2024 national LWV Convention to conduct a first-ever study on the federal judiciary. The shortened study, which will be conducted in one year instead of two, aims to create a position statement.
A position statement results from local Leagues studying an issue, debating and voting to reach a consensus. The objective is to bolster understanding and support for democracy. Because the LWV remains faithful to its founders’ commitment to non-partisanship, the Leagues invite people of all political stances and backgrounds to participate and be active in democracy. Nonmembers may participate in the study and debate, but must be members in order to vote on the language of the statement.
A study such as this gives all Leagues, and LWV members at large, the opportunity to learn more about how the federal judiciary has matured and evolved.
The United States has both a federal judiciary and separate state court systems in each state. This study will focus only on the complex federal system, providing more insight into how federal courts work, what their reach and limitations are, and how their codes of ethics work.
The earliest courts met in unconventional spaces and the judiciary started modestly. If you recall “Little House on the Prairie” and know the true story (the book series was highly fictionalized), you might know that Charles “Pa” Ingalls presided as DeSmet, North Dakota’s Justice of the Peace from his living room. The earliest Supreme Court presided in dank offices wherever space in government buildings existed.
The Constitution gives Congress the power to determine the size of the federal judiciary, and initially (in 1789), they created a small court system with just six Supreme Court justices and thirteen district courts with one judge each.
In 1801, as John Adams prepared to leave office, he decided to frustrate his successor and political enemy, Thomas Jefferson. With his support, Congress passed a new law that added 16 more judges and reorganized the federal judiciary. They also passed another law that created a court system with 42 judgeships for the District of Columbia.
As his presidency came to a close, Adams rushed to appoint new judges. One of them was the aspiring William Marbury, who was livid when he learned that his commission letter had not been delivered before the transfer of power.
With the Jefferson administration now in place, Marbury sued to compel James Madison, the new Secretary of State, to deliver the commission that would give Marbury his judgeship.
In the case that followed, the Supreme Court found Adams’ law unconstitutional — it was repealed in 1802 — and threw in a huge “But.”
Chief Justice John Marshall wrote, “The province of the court is solely to decide on the rights of individuals, not to inquire how the executive or executive officers perform duties in which they have a discretion, questions in their nature, political or which are by the Constitution and laws submitted to the executive, can never be made in this court.” In short, the Court said it wanted to stay out of the political, but they had a responsibility to evaluate laws governing the land as constitutional, or not.
In summary, the Court was supposed to stay out of politics, to avoid being activist, but they could decide if laws aligned with the Constitution.
What is “political,” or activist or not? The hosts of Civics 101 discuss this in the podcast episode, “Why is Marbury v. Madison in Trump’s Supreme Court brief?” For example, was Biden’s student loan forgiveness executive order was determined “political” in 2023’s Biden v. Nebraska? How about Roe v. Wade? Or Dobbs v. Jackson?
The challenge is to understand how judicial philosophy differs from political ideology.
“Judicial philosophy refers to activism and restraint, while political ideology refers to liberalism or conservatism. It’s possible to be both politically conservative and judicially activist, and vice versa,” says Oyez.com.
In Marbury v. Madison, one can imagine judges avoiding the cockfight between Adams and Jefferson. Their final decision, in more technical terms described by Oyez.com, is that: The Court found that Madison’s refusal to deliver the commission was illegal, but did not order Madison to hand over Marbury’s commission via writ of mandamus — a somewhat uncommonly used legal maneuver in which a judge, usually at the appellate court level, issues a written command for an individual or entity to perform its public duty, or its duty according to the law.
Instead, the Court held that the provision of the Judiciary Act of 1789 enabling Marbury to bring his claim to the Supreme Court was itself unconstitutional since it extended the Court’s original jurisdiction beyond what Article III, Section 2 of the Constitution established.
All that sounds apolitical, but arguably Marbury v. Madison defined one of the major powers of the Supreme Court— determining the constitutionality of laws— and yet involved the Court in the actions of the president where she or he may interfere with the rights of citizens as written in the laws of the land.
It relied upon the assumption made by Chief Justice John Marshall: that all presidents would never act out of ignoble, self-serving, power-drunk intentions.
At present, one may scroll nearly any media, from the right to the left to the individual content creator and witness accusations about self-serving, power-hungry politicians. We’re in a crisis of distrust, the cultural commentators say.
Considering the bipartisan and present distrust in the U.S., Marshall’s faith in the goodwill of all politicians seems naive. We question the court system, not just as “activist” judges, but also their ethical conduct, from vacations, hunting trips, and financial favors paid by wealthy supporters with cases before the court. Consider the stories of Clarence Thomas receiving free tuition for a family member to an elite school or the numerous exclusive trips that Samuel Alito and Thomas have received as gifts.
The current study invites citizens to work together, learning about these concerns.
Whether you are a member of the League of Women Voters or not, you can contribute to the discussion and the lasting position statement regarding the judiciary.
To read position statements, please visit: lwv.org/impact-issues.
To prepare for and join the discussion for the LWV study, please read the following background.
Understanding Federal Courts: This publication is from the Administrative Office of the United States Courts. It provides an introduction to the federal justice system, including how it is organized and how it relates to the legislative and administrative branches of government. Find it at uscourts.gov/sites/default/files/understanding-federal-courts.pdf
U.S Code of Conduct for U.S. Judges: This document includes the ethical principles that apply to federal judges and provides guidance on the official duties and engagements related to outside activities for federal judges. uscourts.gov/judges-judgeships/code-conduct-united-states-judges
Congressional Research Service Paper, The Supreme Court Adopts a Code of Conduct: This document was published following the announcement of the US Supreme Court’s adoption of the Code of Conduct and provides a legal sidebar with background information on federal judicial ethics rules before the adoption of the code and briefly outlines the substance of the code and briefly outlines the substance of the code adopted.crsreports.congress.gov/product/pdf/LSB/LSB11078
The League of Women Voters, a non-partisan, multi-issue organization encourages informed and active participation in government, works to increase public understanding of major policy issues and influences public policy through education and advocacy. All men and women are invited to join the LWV where hands-on work to safeguard democracy leads to civic improvement. For information, visit the website www.lwvmontcoin.org or the League of Women Voters of Montgomery County, IN Facebook page.
