List of Content
A. Separation of Power
B. The Judicial Branch
I. Federal Courts
1. The Supreme Court
2. Courts of Appeals
3. The District Courts
II. State Courts
III. Trial by Jury
IV. Checks and Balances
C. American Judicial System - the one and only way ?
When the Constitution of the United States of America was written down and finally approved in 1788, the Constitutional Committee wanted to make sure that the power of the government would not concentrate in on hand (i.e. the president´s) nor the country be ruled as a centralized country, i.e. with all strings of power leading to or spreading from Washington. Therefore the Committee manifested the Separation of Power in the Constitution. The Power of the government is divided into three branches: the Executive Branch, the Legislative Branch and the Judicial Branch, all of which are independent from each other and are represented by different people or institutions of the government. For example the president of the United States as head of the Executive Branch is commander-in-chief of the United States Military, for the Legislative Branch the Congress votes on bills to become laws and the Supreme Court represents the Judicial Branch. To guarantee the Separation of Power there is the system of Checks and Balances. While the three branches are independent and can not influence each other they still have the opportunity of checking on the otherone´s work.
In this paper I want to show how the Judicial Branch is organized and where there are similarities and differences compared to the German Judicial System.
In Article III, Section 1, of the Constitution of the United States of America it is said that:
The Judicial Power of the United States, shall be vested in one supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour (...) (Gibney, 235).
Due to Article III/1 there are three kinds of Federal Courts in the U.S.: the Supreme Court, the Courts of Appeal and the District Courts. To guarantee the independence of the states there do also exist State Courts. So we find two coexisting but separate judicial systems. One on a federal level and one on the state level.
The State Courts, or local courts, are the ones most of the people come in contact with. For example if you want to get married a State Court Judge has to officially seal the marriage. The State Courts also deal with most of the criminal cases and most other kind of cases that can be handled referring to the U.S. Constitution, the State Constitution and the State Law (State and Federal Courts,n.p.) and exist in virtually every town. The State Courts are established by the state governments whereas the federal courts are established by the Congress and the judges appointed by the President with consent of the Congress. The lowest of the federal courts is the District Court. The U.S. is divided into 94 districts in each of which there is a District Court. One district may be a single state, if it is a small one like Delaware (with only four judges), or a certain area of a state, if it is a big one like California with a Northern, Eastern, Southern and Central District, the latter of which has a total number of 27 judges (Directory of U.S. Courts). This large number of District Courts has been established for every litigant in a trial involving federal offenses to have a federal court within easy reach.
If a party in a trial is not satisfied with the sentence of a State or District Court it may appeal to the next highest court, the Court of Appeal. In the U.S. there are twelve regional Courts of Appeal and the Court of Appeals for the Federal Circuit. While the first have jurisdiction over cases from certain geographic areas, one of which covers three or more states, the latter has national jurisdiction over specific types of cases, such as federal offenses. Their task is to keep away the cases of lower importance from the Supreme Court and check on the sentences of the District and State Courts.
In addition the Court of Appeal of the District of Columbia hears cases arising in the District of Columbia and has "appellate jurisdiction assigned by the Congress in legislation concerning many departments of the federal government" (Courts of Appeals, n.p.).
The last instance in the Judicial System of the United States is the Supreme Court. It is the highest court of the United States and consists of nine judges, which in contrast to the judges of lower courts are called Supreme Court Justices. The eldest of the justices is the Chief Justice. Just like all the other federal Judges they "hold their Offices during good Behavior" (Art.III/1, Constitution of the U.S.), i.e. as long as they are not "impeached for and convicted of Treason, Bribery or other high Crimes and Misdemeanors" (The Federal Judicial Branch, n.p.). Usually the justices serve as long as they desire to but still continue hearing cases of lower importance after they retired from the Supreme Court. The main concern of the Supreme Court is on cases where the Constitution is violated or those of great national importance. It also is the highest court for appeals and its decisions are final. If a leading case is decided over by the Supreme Court all the lower courts have to stick to its decision dealing with an adequate situation. Only about 150 cases are heard annually.
The illustration on the following page may help to understand the way appellations have to take and how the separation of federal and state power is realized in the Judicial Branch:
Federal Courts Way of Appeals
one Supreme Court
one U.S. Court of Appeal for the Federal Circuit &
twelve regional Courts of Appeal with a total of 167 judges
94 District Courts
with 666 judges
one local court in virtually every town State Courts
As I have already mentioned the power of the government is constitutionally seperated into three independent branches: the Executive, the Legislative and the the Judicial Branch. Now I want to show how the system of Checks and Balances works according to the Judicial Branch in relation to the other two branches. The head of the Executive, i.e. the President, appoints the federal judges of the lower courts as well as the Supreme Court Justices, who do not neccessarily have to be members of the bar. Nowadays actually all of them are members of the bar anyway. He also may grant pardons from punishment for offenses against the U.S. On the other hand the Judicial Branch has the right to declare any action of the Executive (or the President) unconstitutional if it doesen´t go along with the Constitution. The Congress may also impeach the President e.g. if it is found out that he incited someone to commit perjury, as it may turn out for President Clinton in the Lewinsky case. If the President is found guilty he can be dissmissed by a 2/3 vote of the Congress. The Legislative Branche has more `direct´ control over the Judicial Branch. First of all it may create or abolish the lower federal courts up to the Courts of Appeal. This right is given to it by Article III/1 of the Constitution of the United States. In the same Article the Supreme Court is irrevocably established. The Congress also does have the power to "impeach and try members of the Judicial Branch" (The Federal Judicial Branch, n.p.), including the Supreme Court Justices, who hold their offices during good behaviour, if they are under suspect of treason, bribery or other high crimes. The number of Justices in the Supreme Court has been rised by the Congress from originally seven when it was founded to nine nowadays. This is due to the load of cases the Supreme Court has to hear during a year. Which cases it may hear is decided over by the Congress as well. The check of the Judicial Branch over the Legislative is as follows: the Senate and the House of Representatives vote on bills to become laws, which, if they prove to be unconstitutional, the Supreme Court has the right to turn down. As well it may declare any action of the Legislative unconstitiutional.
So the Supreme Court can be regarded as the Guardian of the Constitution while the Constitution itselfe is the foundation of all the three branches.
Now I will come to a very important and characteristic part of the United States´ Judicial System, the Trial by Jury. In Article III, Section 2, of the Constitution it is manifested that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; (...)" (Gibney , 235). The jurors are everyday people who only have to have the American citizenship and not been sentenced before. They are picked from e.g. phone books or tax lists by a special Committee and then checked on their criminal records. If they are ordered to court they have to turn up. From the list of possible jurors compiled by the commissioners both the defense and the prosecution may after special interviews turn down six draws without giving a reason. This is usually because they consider someone to be biased for the opposite side. After having heard the case the jury has to come to a unanimous verdict. This verdict will in most cases be confirmed by the judge who leads the trial. But he still he has the possibility to turn down the verdict if it is obviously against the constitution or the evidence given during the trial.
Surely the Judicial System of the United States is one of the best. There is the Separation of Power. There is the system of Checks and Balances. There is the Trial by Jury where the right lays in the hand of the people. But is it the one and only way a judicial system can run?
Of course it is not. It is not the one and only judicial system on earth. Other countrys have their judicial system as well. And they do work as well. But where are the differences and where are the similarities?
In the following conclusion I will compare the American to the German Judicial System and outline some of the similarities and the differences.
First of all I have to mention that both systems are built on the same basis. This is not very surprising considering the fact that after the World War II Germany had to rebuild its governmental system under the control of the allies. The Separation of Power is realized as well in Germany as it is in America. The equivalent of the Supreme Court is the Bundesverfassungsgericht, which checks on the laws passed by the Bundestag and the Bundesrat. There are some lower courts as the Landgericht and the Amtsgericht. So on the first glance the two systems of jurisdiction seem to be very closely related to each other and actually are. But if we take a closer look, we can find differences as well.
The biggest and most obvious contrast is in the Trial by Jury, that does not exist in such an extended version in Germany, as it does in the U.S. In the U.S. most of the crime trials, especially those of great interest to the nation, are heard by a jury of twelve jurors who in the end have to come to a unanimous verdict. In Germany there are no Trials by Jury where the jurors independently decide over the guilt of the defendant. In lower courts, dealing with financial law or industrial law, there might sit two jurors side by side with three judges, all of which have the same vote. These Schöffen, as the German jurors are called, hold their offices for a four year period and get full compensation for their loss of earning. Compared to the U.S., where the jurors normally hear just one case and afterwards get back to their regular work and who earn only $5 a day and get 15cents for each mile they have to go from their homes to court (one way!), the treatment of the German Schöffen is a slightly better one. The American system might for some jurors seem like they are punished for the assistance they give to their mothercountry. I´ve got to admit that in both the U.S. as in Germany the jurors are no professionals, i.e. no members of the bar. But while in Trials of Jury it is mostly very important cases that are heard in Germany the cases are of lower importance. And as in the United States it is mainly the jury who decides over the guilt of the defendant, in Germany it is three judges and two jurors. This might imply the idea that in Trials by Jury the decision of the jurors depends on the eloquence of the prosecution and the defense.
One can also find differences in the jurisdiction. In the U.S. a big concern as Mc Donalds can be sued because an elderly lady spoiled hot coffee over her lap which she didn´t expect to be that hot, since there hasn´t been a label on the cup to warn her. This implies that the average American is expected not to have any common sense and has to be taken care of in the very detail. In contrast to this some German lawyers consider the German judicial system not to take enough care and to let to many offenders get away with their deed unpunished.
To come to an end I for myself draw the conclusion, that neither the American nor the German Judicial System are perfect. Both are run by human beings and just like the human beings make mistakes they have their pros and cons. But I think we can be sure that both countries try to lead the cases their courts hear with the highest justice possible.
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