Guest Essayist: Joerg Knipprath
Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men


Under the Constitution, the only required court is the U.S. Supreme Court. The creation of lower federal courts has always been entirely at the discretion of Congress. Even if federal courts have jurisdiction, they can only hear cases specified in Article III, Section 2, of the Constitution. They are “limited jurisdiction” courts. However, the Constitution does anticipate the existence of state courts, which, in addition to their duties under state law, would perform the functions of federal jurisdiction if Congress chose not to establish lower federal courts. Even today, state courts can hear cases that involve federal jurisdiction, such as claims that arise under federal statutes or the U.S. Constitution, unless Congress has expressly made hearing that type of case exclusive in the federal courts. Congress has done that in regard to claims where the United States is a party, for example.

State courts, therefore, form the backbone of the American judicial system. Most laws are state or local laws, and most cases, civil and criminal, are heard in state courts. There may be state courts of limited jurisdiction, such as the Small Claims Court, but there is at least one level of “general jurisdiction” trial courts. In California, this court is called the Superior Court, organized by county. In other states, this may be called county court, district court or circuit court. In New York, this is called, rather bizarrely, the Supreme Court. These general jurisdiction courts may have separate departments, such as the probate division or the family law division. There may also be entirely separate specialized courts, such as juvenile courts or, in Delaware, the Chancery Court for business law cases.

In addition, many states have an intermediate appellate court system analogous to the federal circuit courts. These are typically organized by larger geographical areas. They, too, vary in names. In California, this is called the Court of Appeal for the 1st [etc.] District. In some states, this may be called the Appellate Department of the [insert name of general jurisdiction trial court]. All states have a final court of appeal. Usually, this is called [the state’s] supreme court. In New York, it is called the Court of Appeals, since, as noted above, New York calls its general trial court the supreme court.

In many states, as well as in the federal system, the role of intermediate appellate courts and the supreme court differ. Intermediate courts exist substantially to correct errors of law made by trial courts, so there is generally a right to appeal cases from the lower court. Supreme courts, on the other hand, are “courts of law, not of error,” where protecting litigants from the errors of trial courts is merely incidental to resolving significant legal issues for the broader public good. Thus, supreme courts are usually given great discretion by the legislature as to which cases they will review. The U.S. Supreme Court, for example, hears almost no cases on appeal. Rather, review is exercised by granting a writ of certiorari that orders the lower court to certify the record of the case to the Supreme Court for review. Many states follow the same approach. In California, only death penalty cases have mandatory appeal. Everything else is within the state supreme court’s discretion.

Federal judges are appointed by the President, with confirmation by a majority vote of Senators. With some exceptions for specialized, administrative law-type judges, such as the Tax Court, they serve during “good behavior,” i.e. potentially for life, subject to impeachment for constitutionally defined causes. At the state level, selection procedures for judges are so varied as to be incapable of complete description in a brief essay. A general overview must suffice. At the beginning of the country, a common model was to have legislative bodies appoint judges. Thus, the Virginia’s constitution of 1776 declared, “The two Houses of Assembly shall, by joint ballot, appoint judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty…[to] continue in office during good behavior.” This “popular control” was, at least in part a response to the distrust that many Revolutionary War-era Americans had towards the king’s appointed judges as officers of the Crown. Virginia is one of two states that retain legislative appointment in some form.

By the 1780s, a reaction had set in against legislative dominance under the first wave of state constitutions. Many states revised their constitutions over the next couple of decades. The new mode of selection of judges often replicated the U.S. Constitution. Thus, the Massachusetts constitution of 1780 stated that “All judicial officers…shall be nominated by the Governour, by and with the advice and consent of the Council [a body of nine members chosen by the two houses of the legislature jointly with a mostly advisory role to the governor]….” On the other hand, while judges in Massachusetts ostensibly served during good behavior, “the Governour, with consent of the Council, may remove them upon the address of both houses of the Legislature.” This easy removal maintained indirect popular control over the judiciary without having to resort to accusations of bad conduct needed for impeachment. Today, three states, not including Massachusetts, select appellate courts by gubernatorial appointment with legislative confirmation.

One odd characteristic of that Massachusetts constitution was that it permitted the legislative chambers, as well as the governor, to compel the Supreme Judicial Court to render formal opinions on “important questions of law, and upon solemn occasions.” This provision still applies in Massachusetts and a dozen other states. It calls upon that court to issue an “advisory opinion” even in the absence of a concrete dispute. This approach is used in various foreign systems, as well, typically those that follow the German model of having one specialized constitutional court that exercises judicial review. It is rejected under the U.S. Constitution for federal courts and in most state constitutions, which require that the judicial power only functions in concrete “cases or controversies” brought by a plaintiff who has suffered an actual injury and, thus, has standing to sue.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at:

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1 reply
  1. Publius Senex Dassault
    Publius Senex Dassault says:

    Thank you. Very interesting essay. I found the final discussion about “advisory opinions” to be especially interesting.

    In one sense I can see the advantage and desire to ascertain a potential law’s constitutionality before it becomes law. Simply its expedient and efficient.

    On the other hand I wonder how focused a constitutional court really can be when considering the hypothetical. I know that my degree of interest and ability to focus is markedly different when sitting in a class on how use certain advanced Excel capabilities versus when I am actually trying to use Excel to accomplish a task at hand. I thing that judges, no matter how well intended, will suffer the same foible. I also think that real life cases heightens the thoughts, arguments, injuries, and consequences to be considered.

    I was purchasing director for almost 20 years. No matter who hard we tried to consider what might happen, I was amazed to see that life can create situations that really do exceed our imaginations. E.g., in the early 2000s we evaluated the possibility and impact of natural gas prices increasing dramatically. We concluded that based on 20-30 years of history that it a was possible to see prices increasing perhaps 50% from $2.00 to $3.00 per mm BTU. Within just a few years we saw monthly prices spike to $18-$20 per mm BTU during a few major hurricanes. Why did we grossly miss the potential? Human beings are hard wired to anchor perceptions and projections on what we know. We are very poor at anticipating black swans, whether they are 9/11 attacks, receiving 30 inches of rain in 10 hours in 2016 [we thought we saw it all when we received 22 inches in 2 days in 2002], or whether marriage could be anything but what was true for 6000 years, between a man and a woman.

    For these reasons I think that constitutional advisory courts may look good on the surface, but I doubt can adequately consider the real world impacts of a new law.



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