How Do Cabinets Function in Presidential and Parliamentary Regimes? Learning Outcomes By the end of this section, you will be able to: Describe the scope and selection of cabinet members. Explain how cabinets function within their political environment. Discuss the relationships between cabinets, the public, and legislatures in presidential and parliamentary regimes. Analyze the personalization of chief executives and how that impacts cabinet governance. Presidents and prime ministers are surrounded by individuals who provide them with information and advice that informs their decisions. The most visible of those groups are their cabinets . A cabinet’s functions in a presidential regime can be significantly different from those of a cabinet in a parliamentary regime. In presidential regimes especially, both the quality of a cabinet and its impact on presidential decision-making varies significantly from one president to the next. Within parliamentary regimes, however, there is more consistency across governments in terms of cabinet members’ expertise and the expectation that cabinet members will have substantive input into executive decision-making. The Scope of Executive Cabinets In the United States, the president’s cabinet is comprised of the vice president and the heads of the 15 executive departments. The leaders of each department, with the exception of the Department of Justice, are called secretaries. The scope of their power, however, is much more related to their role within the bureaucracy than it is to their role as advisors to the president. Indeed, President Barack Obama didn’t hold his first full cabinet meeting until three months into his presidency, and President Trump was six months into his presidency when he met his cabinet for the first time. Cabinet meetings take place more for optics than as meetings to formulate policy. That is not to suggest cabinet members do not influence the president. On an individual level, they may have tremendous access and influence. But the access and influence they enjoy is due to the personal relationship they have with the president and not necessarily due to the inherent power in the cabinet position they hold. As mentioned earlier in the chapter, individual actors matter. In parliamentary regimes, members of the cabinet are also ministers or members of the parliament. Typically, though not always, they belong to the same party as the prime minister. In these systems, cabinet members play a significant role in the government and in the formation of public policy. Prime ministers must consult their cabinet members regarding any proposed course of action. Within this framework, the prime minister is “first among equals.” The Selection of Cabinet Members Regardless of the system, political events always play a role in the selection of cabinet members. Presidents and prime ministers must be aware of the politics of the day. Prime ministers choose their cabinet ministers from the government. Cabinet ministers are expected to have the necessary expertise in the area they head. In presidential regimes, appointments are political and highly visible. In these systems, it is common for appointees to come from both inside and outside the political arena. provides a comparison across the three most recent US presidents. Data are taken from Kathryn Dunn Tenpas, “Tracking President Joe Biden’s Cabinet and Appointees: Diversity and Pace of Senate-Confirmed Positions,” Brookings, November 2021, https://www.brookings.edu/research/tracking-president-joe-bidens-cabinet-and-appointees/. While a majority of appointed individuals possess a government background, other areas are represented. Indeed, Trump’s cabinet is notable for its relatively low inclusion of individuals from the government and high inclusion of those from business. Any appointees who are members of Congress at the time of their appointment must resign their elected position to take the cabinet post. In the United States, members of Congress are constitutionally prohibited from holding other offices (Article I, section 6). Both Barack Obama and Joe Biden pulled the majority of the members of their cabinets from those with experience in government. Donald Trump, a populist, looked outside government for almost half of his cabinet. (data source: Danielle Kurtzleben, “How the Donald Trump Cabinet Stacks Up, in 3 Charts,” NPR , December 28, 2016, https://www.npr.org/2016/12/28/506299885/how-the-donald-trump-cabinet-stacks-up-in-3-charts; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Presidents appear to consider a number of factors when selecting cabinet members, not the least of which can, at times, be political loyalty and ideological similarity. For example, President Donald Trump chose former Texas governor Rick Perry to be his Secretary of the Department of Energy even though, during a 2011 Republican primary debate, Perry indicated he would abolish the department. Other presidents, like George H. W. Bush and George W. Bush, placed greater emphasis on finding cabinet members with relevant experience than on ideological similarity. Presidents Clinton and Obama also emphasized expertise. Their cabinets tilted toward academia, with 24 percent of President Clinton’s cabinet and 23 percent of President Obama’s cabinet holding a PhD. Danielle Kurtzleben, “How the Donald Trump Cabinet Stacks Up, in 3 Charts,” NPR , December 28, 2016, https://www.npr.org/2016/12/28/506299885/how-the-donald-trump-cabinet-stacks-up-in-3-charts. Trump’s apparent criteria for selecting cabinet members represented a departure from established norms, Paul J. Quirk, “Presidential Competence,” in The Presidency and the Political System , 12th ed., ed. Michael Nelson (Thousand Oaks, CA: CQ Press, 2021), 80. Quirk continues: “Many were wealthy businesspeople and campaign contributors. Most appointees had little or no experience relevant to their agencies.” demonstrating how much presidential character and preferences, rather than the institution itself, determine selections. This seems to be considerably less so in parliamentary regimes. The Independence of Cabinet Members In considering the independence of cabinet members, the differences between presidential and parliamentary regimes could not be starker. Cabinets play an important role in both systems, but the formation of the cabinets and their relationships to the executive differ in significant ways. In a presidential regime, and especially in the United States, while cabinets have substantive areas of oversight, they are not included in presidential decision-making. Cabinet meetings are rare and mostly ceremonial. As one scholar put it, in presidential regimes, “it is cumbersome and unproductive to meet with the cabinet as a whole, let alone to rely on its collective judgment.” Lyn Ragsdale, “Studying the Presidency: Why Presidents Need Political Scientists,” in The Presidency and the Political System , 12th ed., ed. Michael Nelson (Thousand Oaks, CA: CQ Press, 2021), 60. Even though cabinet secretaries may play a limited role in presidential decision-making, they are important to the policy-making and policy implementation process. Consider Donald Trump ’s Secretary of Education, Betsy DeVos . During her tenure, she had a significant impact on education policy. Most notably, under her guidance, the Department rewrote Title IX regulations, providing more protections for the accused. In Japan’s parliamentary system, the prime minister is the head of the Cabinet, and the Cabinet is subject to the prime minister’s authority. Prime Minister Yoshihide Suga is pictured here, first row center, surrounded by his cabinet in 2020. (credit: “Commemorative Photo 2” by Prime Minister’s Office of Japan https://www.kantei.go.jp/jp/99_suga/actions/202009/16suganaikaku.html, Government of Japan Standard Terms of Use (Version 2.0)) Within parliamentary regimes, cabinet members do not enjoy the same level of independence, and there is a greater understanding that cabinet ministers’ positions are tied to the fortunes of both the prime minister and the party, which means that cabinet ministers have a vested interest in supporting the prime minister. Additionally, prime ministers can demote or even fire their cabinet ministers. This dynamic helps to reinforce a desire for unity and cooperation. That is not to say cabinet ministers do not have their own scope of authority or are not free to offer contrary opinions. Similar to department secretaries in a presidential regime, cabinet ministers have defined areas of oversight. For example, the position of Foreign Secretary in Great Britain is analogous to the Secretary of State in the United States. These positions deal with foreign or international matters and relationships among countries. How Cabinets Function in Their Political Environments Cabinet function in presidential regimes is idiosyncratic. Because cabinet members are appointed and Senate approval assumed, It is rare for cabinet appointments to fail Senate confirmation. In the last 100 years, less than a handful have failed. cabinets reflect each president rather than the system itself. In other words, the president is largely able to select individual cabinet members and define their roles. Any generalities about cabinet function in the United States are easily undercut by specific examples of how a president did not conform to that generality. In essence, each cabinet is unique. Moreover, various presidents as well as prime ministers have had two cabinets, an official one and an unofficial one (the so-called “ kitchen cabinet ”). The origin of the term can be traced to President Andrew Jackson, who relied upon a small circle of trusted associates that included some official cabinet members as well as friends. Prime ministers have also utilized kitchen cabinets. For example, Australian Prime Minister Kevin Rudd ’s (2007–2010, 2013) kitchen cabinet was also known as the “Gang of Four.” Critics typically view these groups as attempts to bypass traditional institutions and processes. In a parliamentary regime, cabinets are integral to the legislative process, and cabinet ministers have close relationships with their prime ministers. Members of the cabinet are also members of the parliament. While parliamentary cabinets may seem far less idiosyncratic than those in presidential regimes, it would be a mistake to assume that parliamentary cabinets are uniform across prime ministers. Prime ministers’ relationships with their cabinets can vary considerably. For example, Margaret Thatcher was known to have a relatively combative relationship with her cabinet and relied upon a few ministers in making policy decisions. Indeed, in 1981 she fired three cabinet ministers and demoted a fourth over a disagreement on monetary policy. Rita Dallas, “Thatcher Reshuffles Cabinet, Fires Three,” The Washington Post , September 15, 1981, https://www.washingtonpost.com/archive/politics/1981/09/15/thatcher-reshuffles-cabinet-fires-three/802b0eaa-bba4-450f-8b7d-1995a2fc58fa/. By contrast, her successor, John Major , was known for taking a more traditional approach to cabinet government. The Relationship among Cabinets, Legislatures, and the Public In a presidential regime, there is little to no connection between cabinets and legislatures. In parliamentary regimes, the link is presumed to be strong. In attempting to emulate a parliamentary regime, Woodrow Wilson unsuccessfully advocated for a constitutional amendment that would have required presidents to include the leaders of the majority party as cabinet secretaries. Jeffrey K. Tulis, “The Two Constitutional Presidencies,” in The Presidency and the Political System , 12th ed., ed. Michael Nelson (Thousand Oaks: CA, 2021), 15. This was in his writings prior to becoming president and was intended to enhance the power of Congress, especially the House of Representatives. Typically, in either a presidential or a parliamentary regime, cabinet members work largely in the background, but political events may heighten their visibility. This is especially true in a presidential regime, where heads of departments have power apart from the executive. Without a doubt, the most far-reaching plan by a department head was the Marshall Plan . Proposed by Secretary of State George Marshall in 1947, the plan provided aid to rebuild Western Europe after World War II. Cabinets and the Personalization of Chief Executives Some have argued that parliamentary regimes are, for practical purposes, beginning to resemble presidential regimes. Michael Foley, The Rise of the British Presidency (Manchester, UK: Manchester University Press, 1993). There is no doubt that prime ministers today appear to be more presidential and cabinets have become less important. From Margaret Thatcher to Angela Merkel, who has been described as the world’s most powerful woman, prime ministers have asserted themselves, with their parties’ political fortunes riding on their personalities. While observing that traditional cabinets in the United Kingdom have enjoyed a considerable amount of authority within their departments, Australian National University professor Keith Dowding acknowledges that prime ministers have grown in power in relationship to their ministers, arguing there has been “a growing centralisation of policy-making” that benefits the prime minister. Keith Dowding, “The Prime Ministerialisation of the British Prime Minister,” Parliamentary Affairs 66, no. 3 (July 2013): 617–635. Dowding’s argument is interesting because he writes against the idea that prime ministers have become presidential. Dowding argues that, most likely, two things are happening. The first is the growing personalization of the chief executive, which reinforces Neustadt ’s conception of presidential power and suggests the model can be applied to prime ministers. The second is the identification of cabinet officials with the departments they run, thereby viewing them as connected to bureaucracies rather than as political leaders. Within both presidentialism and parliamentarianism, cabinets serve as formal advisors to their chief executives and oversee specific departments. As the head of the department, an individual typically holds the title of secretary. Within parliamentarianism, cabinet secretaries are also members of parliament. In presidentialism, cabinet secretaries typically are not members of the legislature. It is common for secretaries to have a background in government as well as an expertise in the area their department oversees. Nevertheless, in presidentialism this is not always the case, and political loyalty and shared ideology are often considered when presidents make appointments to the cabinet. In parliamentary regimes, cabinets are more commonly integrated into the executive decision-making process, while in presidentialism, cabinet secretaries tend to be more independent and are not always included in presidential decision making. Within both parliamentarianism and presidentialism, it is not unusual for chief executives to form informal groups they turn to for advice. Historically, these informal groups of advisors have been called “kitchen cabinets.” cabinets formal groups of advisors to the chief executive kitchen cabinet an informal group of advisors to a chief executive

Social Sciences


What Are the Purpose and Function of Bureaucracies? Learning Outcomes By the end of this section, you will be able to: Explain the purpose and characteristics of bureaucracies. Differentiate between patronage (politically based appointments) and civil service (merit-based appointments) within bureaucracies. Explain how bureaucracies function within their political framework. Describe the rulemaking process and its importance to policy formation. Analyze how individual actors play a role or have an impact in bureaucratic rule. The Nuclear Regulatory Commission (NRC) meets to discuss decommissioning a nuclear power plant in 2014. (credit: “NRC Discusses Nuclear Power Plant Decommissioning - July 15, 2014” by Nuclear Regulatory Commission/Flickr, CC BY 2.0) Bureaucracies present a challenge to the claim that individual actors matter. The term bureaucracy literally means “rule by desks.” It is an institution that is hierarchical in nature and exists to formulate, enact, and enforce public policy in an efficient and equitable manner. Of all governmental structures, bureaucracies likely have the most negative image. Their functions and operation have been described using terms like “red tape,” “mindless rules,” “impersonal,” and “slow-moving.” Indeed, in the movie Zootopia , DMV workers are portrayed as sloths. Yet, bureaucracies perform important tasks, allowing governments to function effectively and efficiently. The Importance of Bureaucracies Before the 1900s, especially in Europe and the Americas, government employees were small in number, and their impact was minimal. In China, however, bureaucracy has a long history, stretching back to the Qin dynasty (221–207 BCE). Many of the characteristics of modern day bureaucracy were present then. H. G. Creel, “The Beginnings of Bureaucracy in China: The Origin of Nsein,” The Journal of Asian Studies 23, no. 2 (February 1964): 155–156. Today, in all parts of the world, government employees are significant in number, and bureaucracy affects people’s daily lives. For example, bureaucrats in Brazil number over nine million. There are even individuals known as despachantes , or “expediters,” who help individuals navigate the maze of Brazilian bureaucracy. Indeed, in Brazil the government is the largest employer. The public sector is often the largest employer in a country, and it may employ upwards of 25% of all workers. (data source: Worldwide Bureaucracy Indicators, The World Bank; attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) In the United States, the largest private employer is Walmart, with about 2.2 million employees. By contrast, when employment across all levels of government is considered (local, state, and federal), the number of government employees in the US, excluding military personnel, is more than 10 times the number of Walmart employees. As shows, the United States is not unique in having a sizable bureaucracy. The Characteristics of Bureaucracies German sociologist and political economist Max Weber identifies six characteristics of a bureaucracy: Max Weber, N.D. “Bureaucracy,” in Economy and Society , https://archive.law.upenn.edu/institutes/cerl/conferences/ethicsofsecrecy/papers/reading/Weber.pdf . Hierarchy or hierarchical authority Job specialization or division of labor Formalized rules Maintenance of files or records Impersonality Professionalization In addition to the above characteristics, a key bureaucratic concept that emerged with civil service is “neutral competence.” Embracing these characteristics, bureaucracies function to both form and implement policy. Additionally, the characteristics make sure that bureaucracies function efficiently and provide the services that people need. Hierarchy, or hierarchical authority , refers to a chain of command whereby officials and units at the top of a bureaucracy have authority over those in the middle, who in turn control those at the bottom. The primary benefit of a hierarchy is that it speeds action by reducing conflict over the power to make decisions. Division of labor, or job specialization , refers to how responsibilities for all positions are explicitly defined. Within an organization, each position is clearly delineated and distinguished from other positions. Division of labor fosters efficiency because each individual is required to concentrate on a particular job. Often called standard operating procedures (SOP), formalized rules are established regulations within a bureaucracy. These rules explicitly state how an organization conducts its operations. The advantage of formalized rules is that they enable workers to make quick and consistent decisions because those decisions are made on the basis of preestablished guidelines rather than individual deliberation or personal inclination. In a systematized manner, bureaucratic agencies are required to accurately and precisely maintain files or records. Records are archived and made retrievable. These records provide a body of knowledge that can be utilized in informing future policy decisions as well as in providing service to clients of agencies. In dealing with clients, bureaucrats follow the norm of impersonality by treating all individuals fairly, equally, and impartially. This reinforces the system’s legitimacy because there is no favoritism based on perceived economic, political, or social status. Throughout the bureaucracy, an overarching norm is professionalization. Bureaucratic agencies are professional inasmuch as they make hiring and firing decisions based on merit. Related to impersonality and professionalization is the concept of neutral competence . In making decisions and administering policies, bureaucrats are policy experts following set procedures and do not consider personal, political, or professional loyalties in performing their responsibilities. Herbert Kaufman, “Emerging Conflicts in the Doctrines of Public Administration,” The American Political Science Review 50, no. 4 (December 1956): 1057–1073. Kaufman writes: “[Neutral competence is the] ability to do the work of government expertly, and to do it according to explicit, objective standards rather than to personal or party or other obligations and loyalties. The slogan of the neutral competence school became, ‘Take administration out of politics.’” Political and Merit-Based Approaches to Filling the Bureaucracy Not only has the size of the bureaucracy changed considerably over the years, but how one enters government employment has also changed. Within the United States, the process of filling bureaucratic positions has moved away from being extremely political to becoming more of a merit system . In the 1800s, the process was known as the “ spoils system .” Attributed to New York Senator William Marcy , the phrase “to the victor belong the spoils” describes the patronage of the spoils system. This Thomas Nast political cartoon from 1877 criticizes the spoils system associated with President Andrew Jackson. (credit: “In memoriam—our civil service as it was / Th. Nast.” by Nast, Thomas/Library of Congress, Public Domain) Under the patronage system, government jobs were awarded based on political loyalty. One of the reasons individuals would work for a candidate’s election was the hope of obtaining a government position because presidents had the ability to hire and fire individuals at will. President Andrew Jackson believed that this approach would result in a government that was both less corrupt and more democratic. It also suggests that government jobs did not require specialized knowledge and that virtually anyone could do the job. Of course, there were a few problems with this approach, not the least of which was that Jackson was incorrect about both the need for expertise and the hope for a more honest government. In 1881, a disgruntled individual who did not receive the government position he believed he was promised assassinated President James Garfield . In the wake of the president’s assassination, Congress passed the Pendleton Act of 1883, creating the civil service system through which a large percentage of government jobs are filled today. That system bases hiring and promotion decisions on merit rather than on political affiliation. Hiring decisions are now determined by formal competitive examinations. They are based not on “who you know,” but instead on “what you know.” The United States is not unique in adopting formal, competitive examination to fill its bureaucracy. Throughout Western Europe and parts of Asia, formal examination is used to fill civil service positions. Indeed, data demonstrate that some countries exceed the United States in terms of the professionalism of their bureaucracies. France, Germany, the United Kingdom, and the Nordic countries all score slightly higher on a bureaucratic professionalism scale. Marina Nistotskaya, Stefan Dahlberg, Carl Dahlström, Aksel Sundström, Sofia Axelsson, Cem Mert Dalli, and Natalia Alvarado Pachon, The Quality of Government Expert Survey 2020 (Wave III): Report (Gothenberg, SE: University of Gothenburg: The QoG Working Paper Series, 2021:2). Data available at https://www.gu.se/en/quality-government/qog-data/data-downloads/qog-expert-survey. In Germany in particular, bureaucrats are highly respected for their expertise and professionalism. How Bureaucracies Function within the Political Framework Essentially, there are three policy stages: policy formation, policy implementation, and policy enforcement. It would be natural to view the policy formation stage as belonging only to legislative bodies, with bureaucracies charged with the tasks of implementing and enforcing policies, and to be sure, bureaucracies do carry out those responsibilities. But it would be a mistake to assume bureaucracies do not form policy. The relationship between executives and bureaucracies is a complicated one. In a hierarchical and command sense, bureaucracies typically fall under the authority of the executive branch. On the one hand, one could think of the president as the CEO of a large corporation with many departments that, on paper, report to them. On the other hand, Congress creates bureaucracies themselves through legislative action. As such, bureaucracies have more than one parent, with the legislative branch being the creator and the executive branch being the administrator. Nevertheless, bureaucracies tend to take on a life of their own and are likely to decide for themselves how best to proceed. In this sense, they have been viewed as the “prodigal child” because they are perceived to have rejected both parents and have decided what is best for themselves. Lawrence C. Dodd and Richard L. Schott, Congress and the Administrative State (New York: John Wiley & Sons, 1979), 2. The authors write: “The administrative state is, however, in many respects a prodigal child. Although born of congressional intent, it has taken on a life of its own and has matured to a point where its muscle and brawn can be turned against its creator.” As Truman noted: “I thought I was president, but when it comes to these bureaucrats, I can’t do a damn thing.” Lyn Ragsdale, “Studying the Presidency: Why Presidents Need Political Scientists,” in The Presidency and the Political System , 12th ed., ed. Michael Nelson (Thousand Oaks, CA: CQ Press, 2021), 61. Ragsdale continues: “In many ways, presidents are satellites of the executive branch. They and their administrations do not share in the values of the various departments and agencies, they operate under different timetables, and they do not know or serve as advocates for clients of the bureaucracy, whether farmers, welfare mothers, or some other group.” While bureaucracies function within set procedures and guidelines, they also have relationships with other political actors. In particular, they interact with interest groups and legislatures to form and implement policy. A traditional approach to describing the relationship is the iron triangle . The iron triangle represents the interdependent and cooperative relationships among members of Congress, interest groups, and bureaucrats. (attribution: Copyright Rice University, OpenStax, under CC BY NC-SA 4.0 license) Iron triangles have the following characteristics: (1) the actors have specialized knowledge, (2) the actors work in cooperation with one another rather than in opposition, and (3) they are very stable over time. As noted in the graphic, each actor receives benefits from the other actors, which contributes to a desire to maintain the status quo. Iron triangles have been justly criticized for being fairly closed to outsiders and new information, for working in relative obscurity, and for being undemocratic. Additionally, iron triangles form around a shared interest and protecting that interest, rather than around addressing an issue. In other words, membership is defined by possessing that interest. The classic example revolves around agriculture. Members of the agriculture triangle include the USDA (bureaucracy), the House Committee on Agriculture (Congress), and the American Farm Bureau (interest group). When determining policy, discussion centers on the best course of action to protect their shared interest. Of course, that is not the only way to view these relationships. An alternative concept is issue networks . While not denying the reality of iron triangles, the idea of issue networks recognizes that all public policy will not neatly fit into that schema. In fact, issue networks are more common today because of the multitude and complexity of public policy issues that confront a modern society. And each year seems to bring new public policy issues that could not have been anticipated. This means the concept of the iron triangle is inadequate to explain the public policy process today. Similar to iron triangles, actors in issue networks have specialized knowledge. But unlike iron triangles, issue networks are open to input from a variety of sources (such as members of the media) and are likely to include individuals with opposite viewpoints. Moreover, issue networks tend to be temporary and to form around the issue rather than around a shared interest. Bureaucracies and the Rulemaking Process When legislatures pass legislation, they often do so in broad strokes, with the process of filling in the details delegated to administrative agencies. At times, legislation may be vague. Through their rulemaking authority, agencies issue regulations following set procedures that include opportunity for public input. In the United States, the process is fairly straightforward and systematized. Once the president signs legislation into law, that law is assigned to an administrative agency. Agencies then propose rules providing specificity to the legislation. The proposed rules appear in the Federal Register , which is the “official journal of the United States Government” and is “published every Federal working day.” “The Federal Register ,” National Archives, https://www.archives.gov/federal-register/the-federal-register. See . This page from the Federal Register illustrates the process of announcing proposed rules. (credit: “The Federal Register” by The U.S. National Archives and Records Administration, Public Domain) To illustrate how bureaucracies fill in the details, consider the Federal Alcohol Administration Act (FAA Act). In part, the FAA Act protects consumers against deception and ensures “that labels provide the consumer with adequate information as to the identity and quality of the product.” 76 Fed. Reg. 66625 (Oct. 27, 2011), 27 C.F.R. 4. In 2011, the Alcohol and Tobacco Tax and Trade Bureau proposed new regulations to add “a number of new names to the list of grape variety names approved for use in designating American wines.” Ibid. The announcement included instructions for where to submit comments (online, by mail, or in person) as well as the time frame for comment submission. After the comment period, final rules were promulgated. In requesting a new name be adopted, petitioners were required to demonstrate that (1) the new grape variety is accepted, (2) the name of the variety is valid, (3) the variety is used in wine making, and (4) the variety is grown and used in the United States. Ibid. Demonstrating that not all changes are substantive, the new rule corrected a misspelling in the previous regulations: Agawam had been misspelled as Agwam. Once proposed rules are published, the public has between 30 and 60 days to comment. Agencies are required to consider them and to respond to significant comments. Jason W. Yackee and Susan Webb Yackee. “A Bias toward Business? Assessing Interest Group Influence on the Bureaucracy,” The Journal of Politics 68, no. 1 (February 2006): 128–139. A significant comment is one made by more than one individual or group. Even so, agencies are not obligated to implement any suggestions made during the comment period. This provides a wonderful opportunity for participatory democracy in which citizens can potentially have a direct impact on public policy. It must be emphasized that this is not a perfunctory process. While policies are generally not changed wholesale, policies do get tweaked or modified. The key questions are who participates and who influences. Generally, business groups comment at much higher rates than individuals and are the most influential groups. Ibid.; Susan Webb Yackee, “The Politics of Rulemaking,” Annual Review of Political Science 22 (2019): 37–55. The process demonstrates that individual actors play a role, even if that role needs be funneled through group activity. The Relationship between the Bureaucracy and the Public Besides involvement in the comment period, the public interacts with the bureaucracy in a number of different ways. One commonly overlooked example of this interaction is the “street level” bureaucrat. Enforcement is an important part of the policy process. While regulations may be specific in their nature, they still need to be applied and enforced in the field. Think of the speed limit on a road people regularly drive. If it’s an interstate highway, away from cities, the speed limit might be 70. But on any given day, the actual speed limit varies depending on the state police patrolling that day. Some days, a police officer might decide that anything under 80 mph is not worthy of receiving a ticket. The next day, that may not be true. It is the police officer, as a street-level bureaucrat, who determines the policy each day. Arkansas Department of Transportation Inspector Who Failed to Report I-40 Bridge Damage Fired As the situation described in this news report suggests, the rules and procedures governing the bureaucracy are often in place for good reason. A routine bridge inspection of the Hernando de Soto Bridge in Memphis, Tennessee, in 2021 dramatically illustrated the potential power of individual bureaucrats. In the course of that inspection, an engineer discovered a nearly severed beam that could have resulted in catastrophic failure. Immediately, the engineer called 911 and had the bridge shut down until further inspection and necessary repairs could be made. Rick Rojas, “‘Get People Off’: Shutdown Ordered for Cracked Bridge in Memphis,” The New York Times, May 13, 2021, https://www.nytimes.com/2021/05/13/us/mississippi-bridge-crack-memphis.html. The individual who had previously inspected the bridge was soon fired “because he wasn’t following proper protocol.” Azi Paybarah, “Inspector Who Twice Missed Crack in Bridge is Fired, Arkansas Officials Say,” The New York Times , May 17, 2021, https://www.nytimes.com/2021/05/17/us/memphis-i40-bridge-crack-inspector-fired.html. Again, within a system as standardized and structured as a bureaucracy, the individual actor matters a great deal. In this case, it is not an exaggeration to suggest that the engineer who discovered the crack saved lives. This example also illustrates that rules and protocols are essential even if they are often frustrating (as, for instance, when you wait for your financial aid to be finalized or as you stand in line to get your driver’s license renewed). Since the 1800s, bureaucracies have grown in both scope and number and now affect the daily lives of all citizens. In many countries, government bureaucracy is the country’s number one employer. Bureaucracies share a number of characteristics such as hierarchical authority, job specialization, formalized rules, impersonality, professionalization, and the maintenance of files or records. Today, the recruitment and retention of employees are usually based on merit, as most countries have adopted a civil service system emphasizing competence and rejecting selection or promotion based on partisanship. In the 1800s, however, it was not unusual for countries to follow a “spoils” system in which positions were awarded based on partisan loyalty. Even though the public tends to have a negative view of bureaucrats, these bureaucrats perform essential functions, ensuring governments run smoothly and that citizens are kept safe. Suggested Readings Cheibub, José Antonio, Zachary Elkins, and Tom Ginsburg. “Beyond Presidentialism and Parliamentarianism.” British Journal of Political Science 44, no. 3 (July 2014): 515–544. Goodsell, Charles T. The New Case for Bureaucracy . Washington, DC: Sage/CQ Press, 2015. Howell, William G., and Terry M. Moe. Presidents, Populism, and the Crisis of Democracy . Chicago: The University of Chicago Press, 2020. Lijphart, Arend, ed. Parliamentary versus Presidential Government . New York: Oxford University Press, 1992. Mayhew, David. Divided We Govern . 2nd ed. New Haven, CT: Yale University Press, 2005. Neustadt, Richard. Presidential Power and the Modern Presidents: The Politics of Leadership from Roosevelt to Reagan . Rev. ed. New York: The Free Press, 1991. Samuels, David. “Executive-Legislative Relations.” In Oxford Handbook of Comparative Politics , edited by Charles Boix and Susan Stokes. New York: Oxford University Press, 2006. Schmitter, Philippe, and Terry L. Karl. “What Democracy Is . . . and Is Not.” Journal of Democracy 2 (1991): 75–88. Yackee, Susan Webb. “The Politics of Rulemaking.” Annual Review of Political Science 22, (2019): 37–55. bureaucracy an institution that is hierarchal in nature and exists to formulate, enact, and enforce public policy in an efficient and equitable manner formalized rules established regulations within a bureaucracy, often called standard operating procedures (SOP) hierarchical authority the chain of command that exists within a bureaucracy; officials at the top have authority over those in the middle, who have authority over those at the bottom impersonality within bureaucracies, treating individuals fairly, equally, and impartially iron triangle the relationship among bureaucratic agencies, interest groups, and Congress that works to fashion public policy; focuses on the shared interest the members have and protecting that interest issue networks relationships among varied actors—policy experts, bureaucrats, and media—that form to address an issue and affect public policy; unlike iron triangles that form around a shared interest, issue networks form around an issue and attempt to address the issue through public policy job specialization the explicit definition of job responsibilities within bureaucratic organizations; also referred to as division of labor merit system the hiring and promotion of individuals based upon formal, competitive examination neutral competence the idea that bureaucrats are policy experts who follow set procedures and do not consider personal, political, or professional loyalties in performing their responsibilities patronage the hiring and promotion of individuals based upon political loyalty spoils system primarily used in the 1800s, this system filled government positions based on party loyalty; see patronage

Social Sciences


Introduction Lady Justice is traditionally shown wearing a blindfold to indicate impartiality, holding scales to weigh the evidence of guilt against the presumption of innocence, and wielding a sword as a symbol of power. (credit: “Golden Lady Justice, Bruges, Belgium” by Emmanuel Huybrechts/Flickr, CC BY 2.0) On May 25, 2020, Minneapolis police officers stopped George Floyd , a Black man, for allegedly using counterfeit money. During his arrest, one of the officers, Derek Chauvin , knelt on Mr. Floyd’s neck for more than nine minutes while the other officers looked on, leading to Mr. Floyd’s death. Several people witnessed the event, including one person who recorded it on her phone, and these witnesses immediately spoke out against the officers’ actions. The death of Mr. Floyd prompted demonstrations protesting police conduct to spread across the United States and worldwide, with protestors demanding immediate action against the officers. Evan Hill et al., “How George Floyd Was Killed in Police Custody,” New York Times , updated November 1, 2021, https://www.nytimes.com/2020/05/31/us/george-floyd-investigation.html; Yamiche Alcindor and Amna Nawaz, “What We Know about George Floyd’s Death in Minneapolis Police Custody,” PBS News Hour, NewsHour Productions, updated May 29, 2020, https://www.pbs.org/newshour/nation/what-we-know-about-george-floyds-death-in-minneapolis-police-custody; Nicholas Bogel-Burroughs, “Prosecutors Say Derek Chauvin Knelt on George Floyd for 9 Minutes 29 Seconds, Longer Than Initially Reported,” New York Times , March 30, 2021, https://www.nytimes.com/2021/03/30/us/derek-chauvin-george-floyd-kneel-9-minutes-29-seconds.html. However, it was the Minnesota judicial system that would determine the legality of the officers’ conduct and whether and how they would be punished. Like all others in the United States, this judicial system must follow a constitutionally ordained process in every case, no matter how people may feel about the parties involved. Following these constitutionally required procedures, Minnesota law enforcement investigated George Floyd’s arrest and death, and prosecutors with the Minnesota state attorney general’s office prosecuted Chauvin for three crimes: third-degree murder, second-degree murder, and second-degree manslaughter. News sources reported on the pretrial process, and the trial was carried live on television. Shaila Dewan, “What Are the Charges against Derek Chauvin?,” New York Times , April 19, 2021, https://www.nytimes.com/2021/04/20/us/derek-chauvin-charges.html; Tim Arango, “Derek Chauvin Faces Three Charges. Here’s How His Sentencing Could Unfold,” New York Times , updated April 26, 2021, https://www.nytimes.com/2021/04/20/us/chauvin-sentence-murder.html; Matt Sepic, “Televised Chauvin Trial due to Pandemic Yields Wide Access—and Concern,” NPR, March 29, 2021, https://www.npr.org/sections/trial-over-killing-of-george-floyd/2021/03/29/982234571/televised-chauvin-trial-due-to-pandemic-yields-wide-access-and-concern. Throughout the trial process, viewers saw the order, procedures, and vocabulary of the United States judicial system at work. Many people have less personal, everyday experience with the courts than they have with the legislative and executive branches of government. The court system uses a specialized vocabulary that can be intimidating until you learn it, but understanding a country’s court system is central to understanding how that country’s government and society work. This chapter will discuss court systems and their processes to help you understand the operations of judicial systems and their purpose in society.

Social Sciences


What Is the Judiciary? Learning Outcomes By the end of this section, you will be able to: Distinguish between rule of law and rule by law. Identify the responsibilities of a judicial system. Compare and contrast the different methods states and countries use to select judicial officers. Discuss major criticisms of each method of judicial selection. In Chapter 4: Civil Liberties , you learned that law is a body of rules of conduct, with binding legal force and effect, that is prescribed, recognized, and enforced by a controlling authority. In the world today, that authority is usually the government of a particular area. However, multiple levels of government may have authority in a given place. The power of a governmental body to exercise the highest authority in an area is called sovereignty . If a government has sovereignty over a particular region, that government can create and impose rules on people within the region. Chapter 4: Civil Liberties also introduced the rule of law , the principle that the government is beholden to its laws, not to any individual or group. Throughout history, many individuals and small groups have become dictators with the sole power to create laws and punish people as they wished, thus employing rule by law . There are still some dictators in the world today, as in North Korea . Dictatorships are oppressive, and dictatorial regimes are prone to corruption. By following the rule of law, robust democracies try to avoid these injustices. Court Shorts: Rule of Law In this brief video, United States judges who preside over different types and levels of courts discuss the meaning of the rule of law and the role it plays in our everyday lives. Recall the four principles of the rule of law: Accountability: The government and private actors are accountable under the law. No one is above the law. Just laws: The laws are clear, publicized, stable, and applied evenly, and they protect fundamental rights, including the security of persons and property and certain core human rights. Open government: The processes by which the laws are enacted, administered, and enforced are accessible, fair, and efficient. Accessible and impartial dispute resolution: Justice is delivered in a timely manner by competent, ethical, independent, and neutral decision-makers who have adequate resources and reflect the communities they serve. These principles demonstrate that the government and the people are in a social contract , a voluntary agreement whereby the people consent to abide by specific rules while living in the territory and the government consents to limit itself to acting in accordance with certain standards. This creates a symbiotic relationship between the government and the people, rather than a system based on fear and oppression. In each democratic country, a constitution sets up the framework for government operations that adhere to these four principles. The constitution formalizes how the country’s government will wield authority and implement powers under that authority. The constitution may be written or unwritten, in one document or several, and titled constitution or basic laws . Whatever its form or title, a constitution establishes the basic government structure for the government’s sovereign territory. It usually creates branches with differing powers that have the ability to check each other in the exercise of those powers. One of the branches that carries out the rule of law in a country is the judicial branch. The judicial system or judicial branch is the court system that interprets, defends, and applies the law in the government’s name. It is the mechanism for peacefully resolving disputes between individuals. Sometimes people refer to this branch of government as the judiciary, but that can be confusing because the judiciary also refers to the people who work in the judicial branch. Therefore, this chapter will consistently refer to the branch of government as the judicial branch and the people who work in that branch as the judiciary. The judicial branch serves different purposes in different political systems. For example, in a political system that prioritizes civil rights and liberties, the judiciary working within the judicial branch checks government action and protects individual rights and liberties. In a system in which there is a separation of powers between the branches of government, the judiciary has judicial independence . In these systems, often the courts can perform a judicial review to check government actions. In judicial review , a judge interprets and implements the constitution to ensure that the other branches of government do not violate what it says. Judicial review will be explored later in this chapter. In contrast, some political systems rely on adherence to strict religious or political standards, creating authoritarian law regimes. In these systems, the judicial branch and the judiciary help impose the government’s approved viewpoint on the citizens through rule by law . In these systems, the judiciary has little independence. The judicial system acts as a source of government control over individual citizens. Peter H. Solomon, “Law and Courts in Authoritarian States,” in International Encyclopedia of the Social & Behavioral Sciences , ed. James D. Wright, 2nd ed. (Amsterdam: Elsevier, 2015), 427–434. Tom Ginsburg and Tamir Moustafa identify five primary functions of courts in these authoritarian rule-by-law regimes: To establish social control and sideline political opponents To bolster a regime’s claim to legal legitimacy To strengthen administrative compliance within the state’s own bureaucratic machinery and solve coordination problems among competing factions within the regime To facilitate trade and investment To implement controversial policies so as to allow political distance from core elements of the regime Tom Ginsburg and Tamir Moustafa, “Introduction: The Functions of Courts in Authoritarian Politics,” in Rule by Law: The Politics of Courts in Authoritarian Regimes , ed. Tom Ginsburg and Tamir Moustafa (Cambridge: Cambridge University Press), 1–22, https://doi.org/10.1017/CBO9780511814822.001. Justice Handed Over to Dictatorship from the Film Judgment at Nuremberg The 1961 film Judgment at Nuremberg portrays the military tribunal at which four German judges who served while the Nazis were in power face charges of crimes against humanity. In this clip, the former minister of justice explains changes in the judiciary under the dictatorship of the Third Reich. In rule-by-law authoritarian regimes, the government suppresses opposition and imposes a specific viewpoint on any part of the government or the population to the extent that human rights violations occur. Mansoureh Galestan, “A Glance at Iran’s Human Rights Violations in 2020,” National Council of Resistance of Iran, January 1, 2021, https://www.ncr-iran.org/en/news/a-glance-at-irans-human-rights-violations-in-2020/. Iran and North Korea are examples of rule-by-law authoritarian regimes. The dictatorial leader of North Korea is selected to a lifetime appointment on a state-approved ballot where only one candidate is listed. This leader has control over the judiciary, and all must adhere to the leader’s will or face retribution. “North Korea: Systematic Repression,” Human Rights Watch, January 14, 2020, https://www.hrw.org/news/2020/01/14/north-korea-systematic-repression. Other countries have come to have an authoritarian-populist judiciary . This means that, through changes instituted by one ruling person or political party, they have transitioned from a rule-of-law system to a rule-by-law authoritarian subsystem. In Turkey, longtime president Recep Tayyip Erdoğan and his ruling party replaced the governmental system in 2017 and have enacted laws to keep themselves in power. Changes in 2007, 2010, and 2017 gave Erdoğan and his ruling party the ability to appoint and dismiss prosecutors and judges, thus calling into question the independence of the judiciary. Carlotta Gall, “Erdoğan’s Purges Leave Turkey’s Justice System Reeling,” New York Times , June 21, 2019, https://www.nytimes.com/2019/06/21/world/asia/erdogan-turkey-courts-judiciary-justice.html. A European Commission report in 2020 found that the continued centralization of power in the president was blurring the lines of separation of powers in the branches of government such that few checks and balances remain: “Under these conditions, the serious backsliding of the respect for democratic standards, the rule of law, and fundamental freedoms continued.” “Key Findings of the 2020 Report on Turkey,” European Commission, October 6, 2020, https://ec.europa.eu/commission/presscorner/detail/en/COUNTRY_20_1791. The report identified significant issues with the Turkish judicial system and its slide into rule by law, not the rule of law: “Turkey’s judicial system is at an early stage of preparation and serious backsliding continued during the reporting period. Concerns remained, in particular over the systemic lack of independence of the judiciary. The president announced the Judicial Reform Strategy for 2019–2023 in May 2019. However, it falls short of addressing key shortcomings regarding the independence of the judiciary. No measures were announced to remedy the concerns identified by the Council of Europe’s Venice Commission and in the European Commission’s annual country reports. There are concerns that dismissals in the absence of respect for due procedures caused self-censorship and intimidation within the judiciary. No measures were taken to change the structure of, and process for, the selection of members of the Council of Judges and Prosecutors to strengthen its independence. Concerns regarding the lack of objective, merit-based, uniform and pre-established criteria for recruiting and promoting judges and prosecutors persisted. No changes were made to the institution of criminal judges of peace so that concerns regarding their jurisdiction and practice remained.” Ibid. One can thus see the difference between the rule of law and rule by law. Each judicial system can be assessed on the basis of how well it meets the rule-of-law criteria for protecting the rights of the people from government overreach, manipulation, and the rise of dictatorships. How the Judicial Branch Differs from the Other Branches of Government Judicial branches differ from the executive and legislative branches because, unlike in those branches, the judicial system restricts how the courts may act and how the people may express their opinions to the courts. A good description of this restriction appears in Federalist no. 78, wherein Alexander Hamilton wrote about the judicial branch as it is described in the US Constitution: “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but also holds the sword of the community. The legislature not only commands the purse, but also prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.” Alexander Hamilton, Federalist , no. 78, in The Federalist Papers , The Avalon Project, Lillian Goldman Law Library, 2008, https://avalon.law.yale.edu/18th_century/fed78.asp. In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. An example helps illustrate the differences between the branches and their powers. In the United States, a president alarmed at the number of gun shootings occurring in the country can create a commission to review the problem and make recommendations to Congress to enact new laws. The president (the executive) can implement some of these recommendations by executive order , a particular type of binding law that only the chief executive can create. The people can express their views on the subject to the president at any time. Congress (the legislature) may also be alarmed about the number of gun killings. They can open an investigation and create a statute to limit some access to guns. Again, the people can express their views on this subject to Congress at any time. In both examples, government officials decide what they want to investigate and what actions they want to take, and the people can freely voice their opinions on the subject. Courts, however, cannot take action on their own in the ways the executive and legislative branches can, and people cannot express their opinion in court unless they meet particular criteria. A court can only take action if it has jurisdiction over a specific case. Jurisdiction is the written authority, stated in a constitution or a statute, that authorizes a court to hear a case. Jurisdiction includes both the geographical region and the topics of the court’s authority. Critical Thinking and the Courts The judges at the International Military Tribunal at Nuremberg critically examine evidence and testimony. (credit: “View from Above of the Judges’ Bench at the International Military Tribunal in Nuremberg” by United States Holocaust Memorial Museum, courtesy of National Archives and Records Administration, College Park, Public Domain) Every functioning government must have a functioning judicial system. As you study the different forms of judicial systems, how they operate, and elements such as the standards of evidence across different judicial systems, as well as different types of law, you are sharpening your critical thinking skills. Being able to understand and explain why someone is found innocent of a particular crime, for example, requires the ability to analyze, evaluate, and synthesize various pieces of information coming from the defense attorney, the prosecutor, the facts of the case, and the components of the law in question. This is the core of critical thinking, and it is a fundamental skill that is utilized in virtually any career. Critical thinking skills are highly valued, and they take work and practice to develop. Studying topics such as courts and judiciary systems is a good way not only to prepare for a career within the legal world—as an attorney, for example—but also to hone general critical thinking skills that are invaluable regardless of what direction your professional path in life takes. Selecting Judicial Officers There are as many ways to select judicial officers as there are countries in the world. The particulars of the selection process vary widely by country. The selection process can also differ for different levels or types of courts within a country. All of the selection processes can be sorted into four broad categories: Appointment for life Appointment for a specified number of years Election Hybrid, or a combination of these methods (e.g., appointment followed by retention election) Lifetime Appointments The US Constitution establishes a Supreme Court of the United States (SCOTUS) and authorizes Congress to create other Article III courts . “Court Role and Structure,” United States Courts, Administrative Office of the US Courts, accessed December 21, 2021, https://www.uscourts.gov/about-federal-courts/court-role-and-structure. The judges for these courts are nominated by the president and confirmed by the US Senate. These Article III judges serve for life, as long as they remain on “good behavior.” There is no mandatory retirement age. These courts have the power of judicial review and, once appointed, are independent of the other branches of government. Congress can change any court’s jurisdiction except SCOTUS’s original jurisdiction . Still, neither Congress nor the president can fire a judge nor stop the judge’s salary if they disagree with a decision the judge makes. Thus, the judiciary in the United States has some measure of independence, but judges are often subject to political pressure during the appointment process. Article III courts include the United States Supreme Court, US circuit courts of appeals , and US district courts . There is only one SCOTUS, but there are 13 circuit courts of appeals and about 100 district courts. All have multiple judges, so the power to appoint judges is a substantial one. Moreover, because these judges are appointed for life, a president can influence the interpretation of the law and the Constitution well beyond that president’s term of office. As noted by legal scholar Alexander Bickel , “You shoot an arrow into a far distant future when you appoint a [US federal] justice, and not the man himself can tell you what he will think about some of the problems that he will face.” William G. Ross, “Roberts Day 4: A Ritual of Democracy,” edited by Jeremiah Lee, JURIST, September 16, 2005, https://www.jurist.org/commentary/2005/09/roberts-day-4-ritual-of-democracy/. Women on High Courts around the World While gender representation on high court benches across the globe skews toward men, studies suggest that the rate of women on judiciaries in countries around the world rose by about 29 percent between 2011 and 2019. Research suggests that a high court judge’s gender may be a better predictor of how they will decide a case than their political leanings and that the gender composition of a court can influence how individual judges view a case. Oliver Martin, “Justice Can Only Be Done When We Have Equal Representation in the Judiciary,” King’s College London, August 29, 2019, https://www.kcl.ac.uk/news/justice-can-only-be-done-when-we-have-equal-representation-in-the-judiciary. Ethiopia’s First Female Supreme Court Chief Justice: Meaza Ashenafi In this clip, Meaza Ashenafi, the first ever female Chief Justice on Ethiopia's Supreme Court, talks about how she worked to define sexual harassment and violence against women in the Amharic language, the official language of Ethiopia. She goes on to discuss the importance of the impartiality of the courts and the role courts play in serving their communities. The lifetime appointment of judges outside the United States is rare. Even in countries that say they appoint certain judges to lifetime terms, these judges are held to a mandatory retirement age. Supreme Court of the United Kingdom, “Appointments of Justices,” The Supreme Court, Crown, April 2016, https://www.supremecourt.uk/about/appointments-of-justices.html. For example, in the United Kingdom, Supreme Court justices are not subject to term limits , but they must retire by age 70. There are proposals pending to increase this to 75. See Ministry of Justice and Robert Buckland, “Judicial Retirement Age to Rise to 75,” GOV.UK, March 9, 2021, https://www.gov.uk/government/news/judicial-retirement-age-to-rise-to-75. Additionally, in the United Kingdom, there are minimum requirements for nomination, and a nominating commission reviews applicants. Finally, this type of appointment applies only to a particular court, not to all courts in a broad category, as in the United States. In Belgium, the monarch appoints constitutional court judges from a list of candidates submitted by Parliament. Ivan-Serge Brouhns, “Legal Systems in Belgium: Overview,” Practical Law, Thomson Reuters, March 1, 2019, no. 12, https://uk.practicallaw.thomsonreuters.com/w-019-2986. As in the UK, these judges are appointed for life with mandatory retirement at age 70. The monarch selects judges for the supreme court, the Court of Cassation, from candidates submitted by the High Council of Justice, an independent 44-member body consisting of both judicial and nonjudicial members. Like constitutional court judges, Court of Cassation judges are appointed for life with a mandatory retirement age of 70. “Belgium,” The World Factbook 2016–17 (Washington, DC: Central Intelligence Agency, 2016), 78, https://www.google.com/books/edition/The_World_Factbook_2016_17/HfywxU2EnFwC. Recent discussions in the United States have debated instating a mandatory retirement age or setting a term limit for Article III judges. Presidential Commission on the Supreme Court of the United States, Final Report , December 2021, https://www.whitehouse.gov/wp-content/uploads/2021/12/SCOTUS-Report-Final-12.8.21-1.pdf. Appointment for a Term of Years There is a second type of US federal judge: those appointed for a term of years. Congress, in creating these courts, specifies the qualifications of the judge and the term of service. Williams v. United States, 289 U.S. 553 (1933), http://cdn.loc.gov/service/ll/usrep/usrep289/usrep289553/usrep289553.pdf. Potential judges apply for the office as one would apply for any other job. A hiring committee selects the judge. Several US states also appoint some of their judges for a term of years. The process for an appointment varies by state. “Judicial Selection in the States,” Ballotpedia, accessed May 25, 2021, https://ballotpedia.org/Judicial_selection_in_the_states. Many countries appoint some of their judges for a term of years, though the processes by which they do so differ. Elliot W. Bulmer, Judicial Appointments , 2nd ed. (Stockholm: International IDEA, 2017), https://www.idea.int/sites/default/files/publications/judicial-appointments-primer.pdf. For example, in Albania, the president alone makes some nine-year appointments. “Albania,” The World Factbook , Central Intelligence Agency, last updated December 14, 2021, https://www.cia.gov/the-world-factbook/countries/albania/#government. On the other hand, the Chinese legislature, the People’s National Congress, appoints the chief justice of their national supreme court for a limit of two consecutive five-year terms. “China,” The World Factbook , Central Intelligence Agency, last updated December 14, 2021, https://www.cia.gov/the-world-factbook/countries/china/#government. To be considered for most judicial appointments in France, an attorney must pass a series of entrance examinations. Nicole Atwill, “The French National School for the Judiciary,” In Custodia Legis: Law Librarians of Congress (blog), Library of Congress, January 26, 2011, https://blogs.loc.gov/law/2011/01/the-french-national-school-for-the-judiciary/. They must then attend special classes and pass a series of difficult examinations to be eligible for an appointment as a judge. The Ministry of Justice oversees this process without any executive input. Appointment by Election A few US states use a rare process, election, to select some judges. In a 1988 speech, Hans Linde , a former justice of the Oregon Supreme Court, said “To the rest of the world, American adherence to judicial elections is as incomprehensible as our rejection of the metric system.” Debra Cassens Weiss, “Most Countries Don’t Hold Judicial Elections,” ABA Journal , May 27, 2008, https://www.abajournal.com/news/article/most_countries_dont_hold_judicial_elections. When judges are directly elected, the judiciary is an agent of the government with limited independence. The voters use their votes to pass judgment on judicial decisions in the same way that they use their votes to weigh in on the actions of the executive and legislative branches. Thus, one of the criticisms of judicial elections is that they incentivize judges to make politically popular decisions that are not necessarily correct interpretations of the law. Different US states employ different types of judicial elections. A candidate’s political party is listed on the ballot in partisan elections , while the candidate’s political affiliation is not listed in nonpartisan elections . Many states have moved away from direct elections and toward retention elections. In a retention election , a judge is appointed for a term of years, and at the end of that term, an election is held to determine if the judge should be retained for another term or replaced. “Judicial Selection in the States,” National Center for State Courts, accessed May 25, 2021, http://www.judicialselection.us/judicial_selection/index.cfm. Texas is one of the few states that still holds partisan elections for almost all judgeships in the state. “Judicial Selection in the States: Texas,” National Center for State Courts, accessed May 25, 2021, http://judicialselection.us/judicial_selection/index.cfm?state=tx. As a result, candidates run for office just like all other elected officials. They align with a political party, receive the majority vote in the party’s primary election, and campaign showing their affiliation to the party. Most other states have moved away from this selection style because of issues with partisanship, such as the appearance of impropriety when someone makes a large campaign contribution before appearing before the court and the instability of a process that selects candidates based on political popularity rather than legal expertise. Texas Commission on Judicial Selection and Public Policy Research Institute, Texas Commission on Judicial Selection: Final Report (College Station, TX: Public Policy Research Institute, December 2020), https://www.txcourts.gov/media/1450219/201230_tcjs-final-report_compressed.pdf. Texas has been the object of scrutiny for allegations of favoritism to campaign donors and political party influence on judges. “Justice for Sale,” Frontline, PBS, November 1999, https://www.pbs.org/wgbh/pages/frontline/shows/justice/; Emma Platoff, “Despite committee’s recommendation, ending Texas’ partisan judicial elections looks unlikely,” The Texas Tribune , December 31, 2020, https://www.texastribune.org/2020/12/31/texas-judicial-elections-partisan/. As a result, there is pressure from a number of corners, including former and current judges, to change this system. Federalist Society, “The Merits of Electing Our Judges 3-7-08,” April 19, 2011, video, 1:00:57, https://www.youtube.com/watch?v=M_xrxOmHU5Q. About 13 states still hold nonpartisan elections for some of their judgeships. These states assert that this enables people to have a say in the judiciary while removing political partisanship from the selection process. Matthew J. Streb, ed., Running for Judge: The Rising Political, Financial, and Legal Stakes of Judicial Elections (New York: New York University Press, 2007). Former Chief Justice of the Texas Supreme Court Wallace Jefferson on Electing Judges in Texas In this clip, former Chief Justice of the Texas Supreme Court Wallace Jefferson weighs in on how he believes the state of Texas should select judges. Switzerland also holds judicial elections in which the Federal Assembly, their legislative branch, elects judges to six-year terms. “Switzerland,” The World Factbook , Central Intelligence Agency, last updated December 2, 2021, https://www.cia.gov/the-world-factbook/countries/switzerland/#government; Aubrey Diem et al., “Switzerland,” Britannica, Encyclopædia Britannica, last updated December 19, 2021, https://www.britannica.com/place/Switzerland/Government-and-society. A few other countries also hold some judicial elections. Hybrid or Mixed Selection Many countries have a hybrid system , with a mix of appointments for term and appointments for life depending on the type of court. “Judicial Branch,” The World Factbook , Central Intelligence Agency, accessed December 21, 2021, https://www.cia.gov/the-world-factbook/field/judicial-branch/. A couple of countries and a few US states have both appointments and elections. One common hybrid selection system used in several countries is an appointment with review after one term. In Japan, the chief justice of the Supreme Court is designated by the Cabinet and appointed by the monarch, while associate justices are appointed by the Cabinet and confirmed by the monarch. All justices are subject to a popular referendum at the first general election after their appointment and every 10 years thereafter. “Japan,” The World Factbook , Central Intelligence Agency, last updated December 14, 2021, https://www.cia.gov/the-world-factbook/countries/japan/#government. Several US states use a hybrid system known as retention or the Missouri Plan . This system has gained popularity in the United States over the last 50 years. “Retention Election,” Ballotpedia, accessed May 25, 2021, https://ballotpedia.org/Retention_election. In a retention system, the executive initially appoints a judge, with legislative approval, similar to the federal appointment process. The appointed person serves for a term of years. After this initial term, if a judge wants to remain in office, they must run in a retention election. There is no opposing candidate in a retention election; people vote on whether to keep or replace the judge. The judge runs on their record, and their party affiliation typically is not listed on the ballot. A retained judge remains in office for another term. In some states, there is a limit to the number of retention terms a judge may serve. If the judge is not retained, then the process starts again with new nominees and appointments. This style appeals to many Americans because it limits campaigning and political party influence over the judiciary while allowing the people some say over the judicial officers. The judicial system or judiciary is the court system for a particular area. Rule-of-law systems make all accountable to the law and attempt to remain politically neutral and to exercise justice as fairness. Rules of procedure limit what the judicial branch can do. In rule-by-law systems, a person or group uses the courts to reinforce their power and worldview in an authoritarian regime. Sometimes countries change from rule of law to rule by law due to a strengthening of one person’s or one party’s political power. In rule-of-law systems, the judicial branch depends on the other branches and the population’s respect for the rule of law to carry out its decisions. In rule-by-law systems, the courts work with the military or police to enforce compliance with their rulings. Judicial selection processes fall into four broad categories: appointment for life, appointment for a specified number of years, election, and hybrid, or a combination of these methods (e.g., appointment followed by retention election). authoritarian-populist judiciary a system that has transitioned from a rule-of-law system to a rule-by-law authoritarian subsystem through changes instituted by one ruling person or political party hybrid system in government, a mixture of any two or more types of legal or judicial selection systems judicial branch the system of courts that interprets, defends, and applies the law in the name of the government; also called judicial system judicial independence the concept that the judicial branch is independent of undue influence or pressure from other branches of government, partisanship, or other interests and that it is free to interpret cases using certain principles or laws, such as the nation’s constitution, without fear of reprisal judicial review a process in which the judicial branch reviews actions by the other branches of government to ensure that they are following the country’s constitution and its principles judicial system the system of courts that interprets, defends, and applies the law in the name of the government; also called judicial branch judiciary the people who work in the judicial branch of a government; also used as a synonym for judicial branch jurisdiction the authority, in the form of a written constitution or a statute, that authorizes a court to hear a case; includes both the geographical region and the topics of the court’s authority rule by law describes political systems in which the judicial branch and the judiciary help impose the government’s approved viewpoint on the citizens; the judiciary has little independence and acts as a source of government control over individual citizens rule of law the principle that the government is one of law, not of any individual or group social contract a voluntary agreement whereby the people consent to abide by specific rules while living in a territory and the government of that territory consents to limit itself to acting in accordance with certain standards sovereignty the power of a governmental body to exercise authority by creating and imposing rules on people within the area it controls

Social Sciences


How Does the Judiciary Take Action? Learning Outcomes By the end of this section, you will be able to: Discuss the way the judiciary works with other branches of government. Analyze the power of the judiciary to act. Analyze the constraints on judicial action. A court cannot implement its decisions; the other branches have to turn the court’s decisions into written statutes or orders. You cannot go to court to challenge a law just because you disagree with it. You can complain to the legislature or speak out in public, but if it’s a law the government enforces—a criminal law —you must wait until you are charged with violating that law to complain about it to a court. If a statute gives you the right to make a claim against another person, neither you nor the person you are claiming against can challenge the law until one of you has filed a lawsuit against the other in court. Once a charge or a claim is brought before the court, the people directly affected by the application of the law now have standing , or a direct injury from the effect of the law, to complain about the law before the court in a court case. A court case is a specific dispute about the law and its effect on the parties, or the people directly affected. The court can only consider specific questions brought by the parties, and these are called issues . The court can only determine if the facts—that is, the evidence —meet the criteria specified in the written law and answer the questions the parties have raised. Let’s look at a couple of examples. Each of these concepts will be explored in more detail later in this chapter. Suppose the government enacts a law prohibiting someone from protesting outside a city hall and makes a violation of that law punishable as a crime. A person may not like this restriction and can complain to the legislature, seeking to change the law. However, the person cannot complain in court at this time. If a person does protest outside city hall and is arrested by the police for violating the anti-protest law, and if the government charges that person by filing a criminal case, then that person can challenge their arrest and the law in court. The government will try to prove that the person should be punished because their actions violate the law as written. In certain systems, a person can also complain that the law is an infringement on their right to free speech and protest and can seek judicial review of the law to have it declared unconstitutional and ultimately struck. Another example is a civil case, in which two private parties seek the court’s assistance in deciding a dispute. For example, say you are driving down the road, and another car hits yours. Both parties in the accident feel the other driver is at fault and should be responsible for the expenses of having both vehicles repaired. You can try to resolve the problem between yourselves; however, if you want a court to assist you in deciding the issue, there must be a statute, or a written law enacted by the legislature, that allows you to file a case in court against each other. The court can only apply the law as written to the facts—the evidence of what happened—in making a decision binding on the two of you. If there is no law on the books relevant to your dispute, the court cannot help you. Implementation and Impact of Judicial Decisions Judicial implementation is the process by which a court’s decision, or judgment , is put into practice and enforced. However, in almost all countries, the courts rely on the executive branch to implement their decisions. A court can issue a judgment, or legal order, but it does not have the power to compel government personnel to carry out or enforce its orders. The executive branch, which carries out daily government operations, is the branch tasked with implementing judgments. Thus, unless other parts of the government recognize the force of the court’s decision, the court is powerless to put its orders into practice. The implementation of desegregation orders in the United States in the 1950s and 1960s is an excellent example of the executive enforcing the court’s judgment. In these cases, the federal government, including the president, vigorously enforced the Supreme Court’s orders for school desegregation, calling out National Guard troops to escort students to school. “This Day in History: September 24,” Britannica, Encyclopædia Britannica, accessed May 25, 2021, https://www.britannica.com/on-this-day/September-24. The court’s most significant power to enforce its decision lies in the people’s acceptance of the rule of law. Suppose the people do not respect the judicial system or its authority. In that case, the executive branch must physically enforce the judiciary’s orders, which may cause a public backlash against the government. Again, the court’s desegregation order in the Brown v. Board of Education (1954) decision serves as an example. Even years after the decision was issued, many states and school districts refused to follow the order. This resulted in further litigation and the interventions of Presidents John F. Kennedy and Lyndon B. Johnson to enforce the court’s decision. Local politicians and the American public continued to put obstacles in the way of integration for many years. Public resistance can almost always defeat court-ordered action unless the executive and legislative branches back up the court’s decision. By order of the state governor, the Arkansas National Guard prevented nine Black students from entering Central High School in Little Rock, Arkansas, on September 4, 1957. (credit: “Arkansas National Guard at Little Rock Central High School, Little Rock Central High School National Historic Site, 1957” by US National Park Service, Public Domain) On September 4, 1957, the governor of Arkansas ordered the Arkansas National Guard to prevent nine Black students from entering Central High School in Little Rock, Arkansas, in defiance of the Supreme Court ruling in Brown v. Board of Education . Elizabeth Jacoway, Turn Away Thy Son: Little Rock, the Crisis That Shocked the Nation (Fayetteville: University of Arkansas Press, 2008), 127–133. Eventually, on September 24, President Dwight D. Eisenhower sent in nearly 1,000 US Army troops to ensure order and enforce the desegregation order from the court. Eisenhower signed EO 10730 on September 24, “authorizing the Army to subdue a mob.” The order resulted in 856 soldiers from the 101st Airborne Division being dispatched to Arkansas. Another 99 soldiers arrived the next day. See Jacoway, Turn Away , 178–179; Elizabeth Jacoway, “Daisy Lee Gatson Bates (1913?–1999): The Quest for Justice,” in Arkansas Women: Their Lives and Times , ed. Cherisse Jones-Branch and Gary T. Edwards (Athens: University of Georgia Press, 2018), 209. At other times, presidents and state governors have refused to obey court orders. These refusals have resulted in many disputes and, at times, nullification of the court’s decisions. Because the courts cannot implement their own decisions, when a government refuses to obey a court order or statute, that government effectively nullifies the court’s decision and the law. A typical example of nullification in the United States today is the federal reaction to individual states legalizing the use of marijuana. Federal law prohibits all growing, selling, and possession of marijuana throughout the United States, and SCOTUS has affirmed this complete prohibition over a state’s attempt to legalize medical marijuana. Gonzales v. Raich, 545 U.S. 352 (2005), https://www.law.cornell.edu/supct/html/03-1454.ZS.html. However, even with the federal law and SCOTUS decision, many states are legalizing the sale and use of marijuana. The federal government and courts could enforce the federal law against these states; however, they have chosen not to do so. Instead, the federal government allows state governments to regulate marijuana growth and use within their states, focusing instead on interstate and international drug trafficking. Thus, the federal government itself is actively engaging in the nullification of the law. Whether or not you support this action regarding marijuana, think about the possibility of nullification in other contexts, such as federal laws prohibiting racial and sex discrimination. What if a state decided to nullify these laws within its borders? Would you support nullification in this example? Nullification damages the rule of law; if states and individuals decide independently that they do not have to obey a law, without following the processes designed to ensure that no one is above the law, then the rule of law itself is weakened. Many argue that a better way to change a law one does not like is to urge the legislature to change it while still respecting the system of government and the rule of law. The legislative branch can counter a court decision by changing a law the people do not like. The legislative branch can enact a new law that changes the one on which a court based its decision, or it can even propose amendments to the Constitution to achieve the desired result. Take the example of the federal income tax. “Amdt16.1 Sixteenth Amendment: Historical Background,” Constitution Annotated, Congress.gov, accessed December 21, 2021, https://constitution.congress.gov/browse/essay/amdt16-1/ALDE_00000999/. The Supreme Court initially held that Congress’s statutory enactment of a federal income tax was unconstitutional. In reaction, Congress proposed an amendment to the Constitution to permit a federal income tax, and the states approved the amendment. This action succeeded in making the federal income tax constitutional and defeating the court ruling, all within the framework of the system, all while respecting the rule of law . Ellen Terrell, “Income Tax Day,” Research Guides, Library of Congress, last updated December 2020, https://guides.loc.gov/this-month-in-business-history/april/tax-day. Major court decisions may also influence social reform. People can look to court decisions as steps toward desired social reforms and use them to gain public support or change the law incrementally. Again, the Brown v. Board of Education decision provides a practical example. Before Brown , a series of court decisions held that different types of segregation in education were unconstitutional. These decisions narrowed the court’s holding that “separate but equal” accommodations were acceptable in the area of education. By the time Brown was decided, the law was primed to abandon segregated education entirely. However, some parts of society were not acting on the reform and challenged the laws for many years, leading to discussions about the judicial branch’s role in making public policy. Can Courts Make Public Policy? There is no one answer to the question of whether and how courts make public policy. Courts do not openly make public policy, as they only answer questions presented to them in a specific case by interpreting written laws. They cannot look at global events and decide to take action as the legislative and executive branches can. However, by the impact of their decisions, courts can impact law and society, thus nudging social and political policies in a particular direction. Once again, consider the Brown decision. In Brown , the Supreme Court held that in K–12 education, separate is inherently unequal, and ordered the integration of K–12 public schools. That was as far as the Brown decision went, as that was the only question before the court. However, the decision influenced many people to begin questioning segregation in other areas of society, and public officials started to question their role in enforcing segregation laws. This social influence of judicial decisions is often seen as a beacon of hope by those seeking more comprehensive changes in society. It can bring attention to an issue that may have been at the margins of the majority’s conscience. After Brown , the nascent civil rights movement gained momentum. This momentum led to Congress enacting the Civil Rights Act of 1964 and the Voting Rights Act of 1965. States also enacted civil and voting rights laws, and numerous individuals openly challenged segregation laws by breaking them and fighting against their constitutionality in court. This extrajudicial influence is not a direct path. There are debates about how much impact judicial decisions have on social movements. There was already a civil rights movement long before Brown , but without the activists who filed the Brown lawsuit, there would have been no decision to invigorate it. Whatever the effect of the court’s decision on the momentum of the civil rights movement, it is clear that a significant court decision that is perceived as a policy-making decision impacts society by bringing the issue to the attention of more people and causing many to think about the issue in a new way. Thus, courts can make policy for society through their decisions when interpreting laws and the Constitution. Pamela C. Corely, Artemus Ward, and Wendy L. Martinek, “Implementation and Impact,” in American Judicial Process: Myth and Reality in Law and Courts (New York: Routledge, 2015), 429–452. A court case is a specific dispute about the law and its effect on the parties, or the people directly affected. The court can only consider specific questions brought by the parties, which are called issues. The court can only determine if the facts, or evidence, meet the criteria specified in the written law and answer the questions the parties have raised. Judicial implementation is the process by which a court’s decision, or judgment, is put into practice and enforced. The court must rely on other branches of government, usually primarily the executive branch, to turn its decisions into written statutes or orders. Courts do not openly make public policy, as they only answer questions presented to them in a specific case by interpreting written laws. Unlike the legislative and executive branches, they cannot look at global events and decide to take action. However, court decisions can impact law and society, nudging social and political policies in a particular direction. court case a specific dispute about a law brought before a court; for a court to act, parties with standing who allege specific issues based on written laws must file a case criminal law a system of laws establishing minimum conduct of the individual and permitting the government to punish any person who violates such laws evidence the materials or statements a court can consider as the proof necessary for any alleged matter in a case issues the questions to be answered in a court case; a court cannot decide anything other than the issues raised by the parties judgment the binding decision in a court case, issued as a legal document nullification the willful refusal to obey or enforce a court order or statute standing the status necessary for an individual or group to complain about a law before the court, created by a direct injury to that individual or group as a result of government action

Social Sciences