Hello and welcome back to the Civic Flame, the podcast where we unravel the US Constitution and examine how it is and is not working in contemporary US politics. IÕm Amber Vayo, law and policy professor at Worcester State University, and constitutional radical? I donÕt know weÕre trying to figure it out, but basically, I believe the Constitution gives us all the rights and binds the government not the people, so maybe radical is the right way to frame it. WeÕll workshop it. I hope everyone had a nice holiday and got some time to relax. If youÕre outside of the US and didnÕt get a Thanksgiving break recently, I hope you got another break because the worldÕs a but heavy right now. Last time we finished up with Article 2: The Executive Branch and talked a bit about the presidency. Once weÕre done going through the articles of the Constitution, weÕll take a deep dive into some of the Executive Branch offices and what theyÕre up to. Today, however, weÕre going to look into the un-elected branch of the US government: Article 3, the US Supreme Court. Unlike Articles 1 and 2, which came about after the failure of the US first Constitution the Articles of Confederation, the Articles of Confederation did not have a court system. So, Article 3 of the US Constitution is a first draft. Also, while Article 1 (Congress) is in ten sections and Article 2 (the president) is in 4 sections, Article 3 is only in 3 sections. LetÕs take a look at whatÕs going on in those judicial chambers! (transition) Article 3 of the US Constitution starts with section 1 that says, ÒThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.Ó What does this mean? Well, we start with one Supreme Court that the Constitution requires. Interestingly, immediately we get to the inferior courts that Congress gets to establish. This is an interesting check (as in checks and balances) of the un-elected Supreme Court. Remember that the federal court system is broken up into a three-part hierarchy. There are 94 federal district courts spread throughout the US with at least one in each state, the district of Columbia, Puerto Rico, and the three territories U.S. Virgin Islands, Guam, and the Northern Mariana Island. Then there are appeals courts. There are 12 of these throughout the US, and a 13th court which is the U.S. Court of Appeals for the Federal Circuit, which has nationwide jurisdiction over specific cases. Each level of court deals with something different. The district court is kind of like what you see on the courtroom dramas. They try the facts of the case, present evidence, lawyers, usually have juries and so forth. The appeals level actually tries the process. It doesnÕt matter there if youÕre guilty/not guilty. It matters if everything was handled correctly. Things like, was the evidence admitted properly, was the jury instructed without bias, was the defendant appropriately informed of their rights, etc. Finally, the Supreme Court tries the law itself. Was the law compatible with the Constitution? So, this sets up a bunch of stuff. The lower courts, however, are still in some ways at the whims of Congress, though it takes a lot for Congress to change any of that stuff. Right now, they have no inclination to do so because thanks to the radical intellectual movement the Federalist Society a majority of federal judges are republicans. And remember, federal judges are appointed (as opposed to elected) and they are there for life, or as section one continues, ÒThe Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.Ó So, for people who say they want to have term limits on the Supreme Court, youÕd have to go here and make a Constitutional amendment. Likewise, remember that articles 1 and 2 have qualifications causes. To be a member of the House, you have to be 25 years old and live in your state, to be a Senator you have to be 30 years old, and to be president you have to be 35 years old and born in the United States. Well, thereÕs none for Article 3. My students ask me a lot if you have to be a lawyer to be on the Supreme Court, and technically no. Remember that the US Constitution predates law school as we know it. So, there are pretty much no requirements to be on the Supreme Court, and IÕll leave that there for you to write your own jokes. Section two sets up jurisdiction. Remember, juris basically means law and diction basically means speak. So, jurisdiction is Òwhere does the law speakÓ or in this case, Òwhat law speaks in this place.Ó Section two attempts to clarify that ÒThe judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;--to all Cases affecting Ambassadors, other public Ministers and Consuls;--to all Cases of admiralty and maritime Jurisdiction;--to Controversies to which the United States shall be a Party; The next part of it talks about questions between states and citizens and is changed by the 11th Amendment, so weÕll get back to that later. Then it clarifies where and when these cases can come up. ÒIn all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.Ó That basically means the cases can start in the Supreme Court and they donÕt have to go through any processes to get there. Then it says, ÒIn all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.Ó Meaning that those cases and be ruled on by the Supreme Court, but they have to start somewhere else and go through lower-level courts. It's also important here to remember that the Supreme Court typically has what we call as Òdiscretionary docketÓ meaning that they can usually decide what cases they want to take. If the court has appellate jurisdiction, that means you go through your district and appeals courts but then you have to apply for something called a Òwrit of certiorariÓ and hope the supreme court Ògrants certÓ meaning they say yes and grant you the writ, which means they take your case. They have a lot of discretion here and can basically do what they want and not have to tell us about. Finally, section 2 ends with ÒThe Trial of all Crimes, except in Cases of Impeachment; shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.ÓÓ This place reminds us that the Supreme Court is the Supreme Court of THE UNITED STATES, meaning they can actually overrule state court decisions if there is a federal question. So, all states have the same three structure with the district->appeals-> supreme courts. There are some differences, like the district courts at the state level are called trials courts, and not all states have appeals courts, and some state supreme courts are called superior courts. But aside from the minor naming and technical things, you typically have the same level and same process. If you commit a crime you start in the trial court where they bring evidence and call witnesses and have a jury and all that, just like the federal level district courts. If that doesnÕt work out, you can try to go through the appeals process and hope there has been some kind of procedural issues like the judge was bias or the jury was infiltrated or the evidence wasnÕt admitted properly. If you get the appeal but it doesnÕt work for you, you can go to the state supreme or superior court. How this can get to the Supreme Court is that you try to prove there is actually a federal issue. If thereÕs no federal issue, the Supreme Court can kick rocks. But if thereÕs a federal issue, they can get involved. An infamous issue here is the 2000 case Bush v Gore. This was a question of the recount of the Bush/Gore election in Florida. The Florida Supreme Court had weighed in already, but a federalist society judge, one John G. Roberts, convinced the Bush campaign to go to the Supreme Court, which was stacked with republican judges. Those judges decided to weigh in, claiming that there was a federal issue in terms of equal protection, and they stopped the recount in favor of George W. Bush. Who then nominated John G. Roberts to the US Supreme Court and he is currently the Chief Justice. I want to be clear that I donÕt think stopping the recount actually changed the results of the 2000 election. But it is important to see how much meddling happened. Between that and the fact that a president who did not win the popular vote was a) president during the most consequential terrorist attack in world history and his response fundamentally altered (for the worse) the Untied States and the international order, and b) he was able to put two judges on the Supreme Court left a bad taste in peopleÕs mouths. WeÕll talk a lot about Supreme Court legitimacy next week when we do something we donÕt usually do and do a week thatÕs not strictly about the Constitution before we get back on the Constitution. In the meantime, we look at the last section of Article 3. Section 3, ÒTreason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.Ó This is an interesting thing because we have some real questions about what it means to levy war against the United States. Does war have to be officially declared? Does it have to be war between nation states? That sounds silly, but since so much of war today deals with non-state actors like terrorist groups or lone-wolf or ideological warriors, it becomes a really concerning question. The end of Article 3 is ÒThe Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.Ó Remember before we talked about bills of attainder meaning that you can say some people or groups donÕt get the benefit of the rule of law. Corruption of blood means that you can punish someoneÕs family for what their relatives do. For example, if your mom commits treason, corruption of blood would say that you can also be punished or discriminated against for it. One thing to see here thatÕs really interesting is that Article 3 talks about legal things, including process itself and what the Courts canÕt talk about, and there really is just not a lot of rules about what the supreme court and its judges can do. So, what weÕre going to do next time is talk about the Supreme Court nominating process, the power of judicial review, and judicial interpretation or how judges think about and decide about the law! (transition) This was a wild ride through Article 3, the shortest branch of our federal government. Next week, weÕll talk about how that works in practice. Until then, follow us on Blue Sky, Substack, and Instagram at Dr Fun Sponge. Share widely, and remind me to do something with our YouTube page! In the meantime, follow the National Constitution Center or the Brenan Center on social media so you can get some great judicial information in your news feeds. Until next time, take care out there and keep the civic flame burning bright. (outro) The Civic Flame is a dr fun sponge production, with writer and creator Amber Vayo and sound producer Matthew Munyon.