Understanding U.S. Court Systems: Three Theoretical Perspectives

Introduction

Understanding the court system in the United States—or courts and court systems in general—is a far more complex task than might be perceived at first glance. Courts are often thought of by the general public, incorrectly according to many if not most scholars on the subject, as simple bodies that determine one party to be correct in their interpretation and/or application of the law, and the other party incorrect (Shapiro 1986, pp. 1). This model is applied to many individuals' thinking about criminal and civil cases in the United States and probably abroad as well, leading to gross misinterpretations regarding the courts and their mechanisms of operation. Other theories and models have been proposed and published as explanations for how the court system works, both specifically in the United States and generally in cultures around the world. This paper examines three such theories, highlighting similarities and differences in the authors' approaches to explaining court behaviors and functions.

Martin Shapiro takes one of the broader perspectives in his book Courts: A Comparative and Political Analysis, attempting to explain the fundamental nature of courts and their development throughout human history. Charles Smith takes a more narrow view of the United States' court system and its hierarchical nature, revealing similar political considerations to those proposed by Shapiro. In an even more narrowed focus, Charles Smith pairs with Oleg Smirnov in a political examination of the Supreme Court itself, examining its workings and proclivities as independent from the larger court system.

Theoretical Overviews

Shapiro, through his examination of court systems and court-like activities in a variety of historical and contemporary cultures, asserts that courts are seen most simply as a means of conflict resolution through appeal to a third party. This requires the consent of both parties to the conflict in terms of selecting the third party and the norms by which a judgment will be rendered, thus making each party to the conflict also a party in selecting the methods and means of judgment—and making the judgment more binding through this process of mutual selection. As societies grew (or grow) more complex, Shapiro continues, laws and specifically designated public officials replaced consent, leading to fundamental instabilities in modern courts that require mediative decisions in order to retain balance.

In his article "The U.S. Supreme Court as Agent: Rethinking Court Hierarchy," Charles Smith argues that viewing the Supreme Court as the principal actor of the federal court system and the lower courts as its agents is actually backwards. He takes the view that courts are indeed responsive, but that this responsiveness works from the bottom up, with the decisions of lower courts rarely being reviewed, let alone reconsidered and overturned. The power that the Supreme Court has to review and overturn decisions is automatically considered by the lower courts, with no decision being rendered with the expectation that it will be reviewed—rendering the review process largely moot for the vast majority of cases. The cases are essentially "pre-reviewed" based on the lower courts' perception of the Supreme Court's preferences and prior judicial interpretation, which Smith suggests is not the best operational stance for the lower courts.

In his joint article with Oleg Smirnov, "Drift, Draft, or Drag: How the Supremes React to New Members," Smith takes an even closer look at the Supreme Court and the history of its political (or interpretive) makeup. Specifically, these authors find that the Court counter-balances changes to its ideological makeup—brought about by the addition of new members—through changes in the overall interpretive stances of opposing justices. The addition of more liberal justices results in conservative justices becoming more conservative, and the addition of conservative justices leads to more liberal thinking on the part of liberal justices. This view sees the Supreme Court, and courts in general, as an essentially political body—much like any other political body at work in the federal government or at other levels of government within any given society, whether past or present.

Conclusion

A fully accepted explanation of the court system has yet to be achieved in the literature, and is certainly beyond the scope of this paper. The agreement that exists between the disparate arguments presented above, however, suggests that these authors are formulating a new trend in judicial theory that could soon replace the inadequate and oversimplified view many hold of the courts. This understanding will doubtless continue to be refined for decades, if not centuries.