Narrator: Many of the framers of the Constitution were reluctant to concentrate too much authority in a central government. For this reason, the creation of a judicial branch that included a system of courts to interpret the laws and policies created by the executive and legislative branches was seen as very important.
Justice O'Connor: Each state — each colony, each state — had a separate judicial branch with its own court system and its own supreme court. And because they were setting up a national government, they wanted some control over the interpretation of this new constitution they were writing and that's why they created a judicial branch. Narrator: The American legal system has several layers, in part because of the division between federal and state law. Today states retain substantial authority, and legal jurisdictions are jealously guarded. In American history, any time there was a shift of power or legal authority from the states to the federal government it was over fierce resistance from the states.
Justice O'Connor: Each of our 50 states has a court system and they too have a role in interpreting state law. They can even interpret federal law as well. Although those decisions can be appealed to the U.S. Supreme Court.
Narrator: Making and enforcing laws in the United States has never been easy — and that was a deliberate choice made by the Constitution's framers. The separation of powers ensures that each branch of government has a specific role in governing the nation.
Justice O'Connor: The role of the courts is never one to create policy or to develop policy. That is not the role of the courts. The courts have to resolve issues of law that come before them in the course of their jurisdiction. At the federal level, that often means interpreting some law passed by Congress. It's Congress that establishes the policy, not the federal courts. But what happens is that — I've been a legislator and I know how hard it is to draft laws that are clear. Very often, legislators end up enacting legislation that is not clear or that can be interpreted in more than one way. And it often falls to the courts to interpret laws passed by Congress and try to figure out what it was Congress meant. Not to try to figure out what the judges think would be best, mind you, but to interpret what the Congress intended.
Narrator: The ultimate decisions on whether policies, laws and legal decisions meet the standards of the Constitution are made by the Supreme Court. The nine justices that make up the Supreme Court can set aside any law — federal, state or local — that a majority of the justices believes conflicts with any part of the Constitution.
Justice O'Connor: Issues arise as to the constitutionality of enactments of Congress. Sometimes litigants will come before the court with a case that says here's what Congress said, we think that's unconstitutional — that they exceeded their jurisdiction. And the courts sometimes have to decide that. The more difficult job probably is that of Congress in deciding what policies to enact. And it's the role of the courts to interpret them and rule on constitutional challenges. Justice O'Connor: The rule of law is premised on the concept that the body that the nation uses to enact laws — they are the representatives of the people. Then you need a judicial branch that is able to interpret and, if need be, enforce those laws. And to do that, you need people who are fair and impartial, and qualified to be a judge — that's what you need. And so you need systems in the various countries to select qualified, fair, and impartial judges.
Narrator: Major legal decisions can have a large impact on American society. Such decisions often form the basis for political debate, and can play an important role in shaping voters' opinions of candidates in election campaigns. Sometimes judges are criticized for their decisions.
Justice O'Connor: We have seen in recent years more criticism of judges than I can remember in my lifetime. There's a lot of talk about activist judges who are legislating from the bench. I find those comments very exaggerated and very harmful. Because judges are not ordinary politicians and they don't decide cases based on their political preferences. Narrator: How the judicial system is formed helps settle problems of public trust before they even start. But nevertheless, disputes still occur. Perhaps the most significant example in recent years is the Supreme Court's decision in the disputed result of the 2000 presidential election. The decision centered on how to count ballots in the state of Florida.
Justice O'Connor: Unfortunately in Florida, they decided to leave it up to all the individual poll workers and so there was no uniformity at all in the rules. And that issue came to the Supreme Court and the Supreme Court said look, it's a federal election and federal law applies, and under federal law, we have an equal protection clause and every voter is entitled to have the same rules applied as to every other voter. Narrator: America's legal system has gone through many changes and has grown over the years. The fact that the American judicial establishment has remained effective for so long is a tribute to its design, even as the system becomes more complex and the number of cases has grown.
Justice O'Connor: I grew up in a remote area in a ranch in Arizona and New Mexico and the county seat was a little town with just one lawyer and eventually, a second lawyer came and then both of them had lots of legal work to do. That was all it took — two lawyers, more work. And that's what our experience has been in this country. Narrator: In many ways this is a logical result of a larger society in which the rule of law and its application is a basic element of fairness. The number of lawyers in America continues to grow.
Justice O'Connor: The legal profession has become one that is fairly attractive to young people and we have lots of law schools, and it is true I think that when you have more lawyers you probably have more cases filed, and I think we do have more litigation than we need in this country. Narrator: Many American businesses support tort reform, saying that many lawsuits filed against them for violating civil or environmental laws, for example, are completely baseless and serve only to enrich the lawyers themselves. Some critics have even said that the American legal system has lost its way and needs to come back to its original purpose of creating fairness for citizens. But according to O'Connor, the number of lawyers and lawsuits is not the main issue for a healthy legal system. Justice O'Connor: I don't think that having more lawyers necessarily means that courts have lost their way or that the legal system has lost its way. What you need is a fair and impartial judiciary. And that's been our goal. I think the framers of the Constitution achieved that for the federal judges. The federal courts by and large, have been staffed by very well-qualified judges.
Narrator: A fair and impartial judiciary is achieved through a fair system for choosing judges. The justices that preside on the U.S. Supreme Court are appointed by the President and then confirmed by the people's representatives in Congress after public hearings. Justice O'Connor explains that in a country as diverse as the United States, you can find many different methods of government. Justice O'Connor: We have 50 states. And the great bulk of litigation occurs not in the federal courts, but in the state courts. Now the states have very different ways of selecting state judges. Some states actually elect their judges in partisan, popular elections. I don't think there's another country in the world that does that. And it surprises people in other countries that we would select any judges that way. I personally do not think that partisan election of judges is a good way to select judges. I think they need to be appointed based on their qualifications and on merit. I think its fine to have a retention election, where you put the judge's name on the ballot and you decide whether to keep that judge — yes or no — that's fine. But the idea of having judges run and raise large sums of money is a terrible way to select judges. And so, that is a problem with our system, and I certainly don't recommend partisan election of judges to any country that is trying to figure out how to select their judges. Narrator: Although it may not get very much attention, the American justice system is perhaps the most important part of the American government. It represents the foundation of the American dream — that people can improve the quality of their lives through hard work and creativity. The court system guarantees the dream through intellectual property protections, financial regulations and other guarantees for individuals' rights. In the end, it is in all citizens' interests to support the legal system and follow its provisions. The certainty afforded by a sound legal system means plans for the future can be made with confidence.
