Prof. Noah A. Rosenblum of the New York University School of Law, at a briefing hosted by the New York Foreign Press Center, breaks down the complex American judiciary. United States Bureau Chief OLUKOREDE YISHAU reports.
U.S. court system
There is no such thing as the single U.S. court system. There are several court systems, plural, and they intersect at various points. The critical distinction to keep in mind is that between state courts and federal courts. Federal courts are courts whose authority ultimately flows from the government in Washington, D.C. They trace their legal existence back to the United States Constitution and to laws passed by the Congress. So for example, the United States Supreme Court, which is often described in the newspapers, is a federal court. It sits in Washington, D.C. It is created by Article 3 of the United States Constitution. The Supreme Court is the court of last resort in the entire federal system.
State and federal courts
State courts, on the other hand, trace their authority to the government of the state of which they are a part – not the United States Constitution, but to that state’s constitution. So, for those of you who are in the room with me right now, we are in New York State, right? The highest state court in New York is not the United States Supreme Court – that’s a federal court – the highest New York State court is the New York Court of Appeals. That court sits in Albany, and it is – it traces its existence to the New York State Constitution. Weirdly, in New York, there is a court known as the Supreme Court, but the New York Supreme Court is not the highest court for New York. In fact, it’s one of the lowest courts. It’s the general trial court. It’s the court of general jurisdiction.
Okay, so key point, right – state courts and federal courts are different. They have different rules, they have different powers, they trace their authority to different sources, they have different judges, and they are part of different systems.
But state courts and federal courts are not completely isolated. As I said a minute ago, they intersect at various points. So, this gets us into the complicated question of how the two systems relate to each other. In fact, they have a bunch of overlap, which can make things very confusing. As a threshold matter, state courts and federal courts have overlapping jurisdictions. Nearly every square foot of U.S. territory falls in the jurisdiction of both the state court system and the federal court system. So here, in this building, we are in the jurisdiction both of the Southern District of New York, which is a federal court, and the New York County Supreme Court, which is a state court.
Also state courts and federal courts can apply the other system’s law. The exact circumstances in which they do this are complicated, but state courts can apply federal law, and they do it all the time, and federal courts can apply state law, and they do that all the time, too.
However, this is not true of every legal issue. There are some legal issues that are exclusively creatures of federal law and some issues that are exclusively creatures of state law, and there are some cases in which you have to be in a federal forum. So, for example, if you’re a business that declares bankruptcy, you have to go to federal bankruptcy court. There is no state bankruptcy court. There is no state bankruptcy law, only federal law. Same thing with immigration law or matters of military justice, right? If those are the legal issues you’re dealing with, you must be in a federal forum.
On the flipside, federal courts are courts of limited jurisdiction. Basically, the way you should think about it is that in general – your default place is going to be a state court. You need a special reason to go to a federal court; you need a special hook to be in a federal court. If you don’t have the hook, your only option is to go to a state court. State courts, by contrast with federal courts, are courts of general jurisdiction.
So as a result of this, of the fact that state courts are courts of general jurisdiction and you need a special hook to be in a federal court, the vast majority of cases are heard in state courts, not federal courts. So, there’s something like 300,000 civil cases filed last year in the federal court system in 2022, according to the Federal Judicial Center. By contrast, there were more than 700,000 cases in – civil cases filed in New York State alone, according to the Court Statistics Project.
Number of state courts
The state court numbers are hard to track down for a variety of reasons… There were more than two times as many cases, civil cases, filed in New York State Court alone – just New York State, more than two times as many civil cases – than in the entire federal system. And that discrepancy is even greater when it comes to criminal cases, because federal criminal law is much smaller and more limited as compared to state criminal law.
Circle back to what I said a minute ago, about the fact that you need a special hook to get into federal court, right. Your default forum is going to be a state court, unless you have a special reason to be in federal court, which means that as a legal matter you can’t be in federal court unless Congress has passed a special law authorizing you to be in federal court, but the United States Constitution limits the kinds of matters that Congress can legislate on. Moreover, federal courts have interpreted the Constitution to put additional limits on what it is that federal courts can do, regardless of what it is that Congress might say.
Advisory opinion
Federal courts are not allowed to issue what are called advisory opinions, interpreting a law before it goes into effect. But state courts, on the other hand, might be allowed to do that. You have to go state by state to figure that out.
As a general matter, federal courts will hear cases about matters that cross state lines or that affect the whole country, but not much more than that. State courts will hear almost everything else, so most criminal law will be state court, although some big drug cases that involve crimes that cross state lines will be in federal court. Similarly, most tort claims, like defamation, will be heard by state court, although in very unusual circumstances you might be able to bring your case into federal court.
Okay, two last things to keep in mind on this score. First, since each court can apply the other’s law, the forum often matters less for the law than for the things like personnel and procedure that the choice of forum get you. So suppose that your defamation case is being heard in state court. Because each court gets to apply the other court’s law, just because you’re in a state court doesn’t mean federal law doesn’t apply. You don’t lose your federal constitutional rights just because your defamation case is being heard by a New York State court. Because federal law is supreme, state courts have to follow federal law, even if there’s a conflict between that state’s law and the federal law, okay.
And the second thing to keep in mind is that you can often pull a case from one forum to another forum. In particular, if a case involves a federal issue, than even if you begin the case in state court or even if the case is heard in the state court system, you might be able to pull it into a federal court, maybe right at the beginning if the real issue is a federal legal issue, or at the very end of the hearing by an appeal to a federal court to get the federal legal issue heard.
How the systems are organised
Each court system is different, but they all have the same general structure. So in general, the U.S. court systems have some kind of a trial court, and then you have at least one appeal as of right to an appellate court, and then maybe you get another appeal or maybe not. And in the final instance, if there’s a federal issue, you can get that case taken to the U.S. Supreme Court.
Okay, that’s a little bit abstract. Let’s make it more concrete. So here in New York, like I said, the lowest general trial court is known weirdly as the New York Supreme Court. So, if you commit a felony to a serious crime or if you’re one big business and you’re suing another big business, that’s where your case is going to start, in New York Supreme Court. And if you’re here in the room with me, the New York Supreme Court that we would go to is the Supreme Court for New York County down at 50 Center Street, downtown.
Now you should know that there are some other trial courts below New York Supreme Court in New York State that are special for certain small issues, like a small civil case for example, like a small claims case or something like that. But basically, your court of general jurisdiction is New York Supreme.
All right, from New York Supreme you have one appeal as of right to the appellate division. For historic reasons, in New York State, the appellate division court is technically known as the Appellate Division of the Supreme Court, which is a little confusing, but whatever; welcome to New York. The appellate division in New York State is divided into four different geographic departments. Each department covers a different part of the state. Here in New York County, your appeal goes to the first department. And whereas at New York Supreme your case was heard by a single judge, at the appellate department – or excuse me, at the First Department of the Appellate Division, your case is going to be heard by a panel of five judges who are drawn from all the judges who sit on the First Department Appellate Division.
After that court hears your case, you’re probably done. But you can try to appeal to the highest court in the state, the New York Court of Appeals. That court has seven judges, they sit in Albany, New York, the chief judge is Rowan Wilson. But in New York, our highest court has what’s called a discretionary docket.
They don’t have to hear every case that you try to appeal to them; you have to ask them for permission, and they have to decide whether or not to hear your case. But not every state has a discretionary court of last resort. That’s just true for New York State.
Whether the New York Court of Appeals takes your case or not, that’s the end of the line for your case unless there was a matter of federal law embedded somewhere in your case. If there was, then you can try to get your case appealed to the United States Supreme Court, but they will probably say no. The United States Supreme Court also has a discretionary docket, and they only hear something like 70 cases a year, and they’re not supposed to hear cases that have already been decided on independent and adequate state grounds. In practice, in the last few years the United States Supreme Court has taken barely any cases out of the state court system. They mostly take their cases from the federal court system.
So, like the state court system, the federal system starts with the general trial courts. Those courts are called district courts, and as I mentioned a little while ago, the lowest district court is known as the Southern District of New York, here in New York City, where we are right now in this building. Just as with the state court system, there are some courts below the district courts that work in partnership with it, like magistrate judges and bankruptcy courts, but we can talk more about those later if you’re interested.
Just as in the state system, in the federal system you have one appeal as of right. Those appeals go from the district courts to the United States Circuit Court of Appeals. And just as with the New York State system, the circuit courts of appeals are divided geographically across the whole country, for the most part. There are 12 geographic circuits. There is one special circuit known as the federal circuit, which doesn’t have geographic jurisdiction, it has thematic jurisdiction. So, the federal circuit takes, for example, all intellectual property cases, all patent cases. Those go on appeal to the federal circuit.
Okay. And just as in the state system, at the appellate level your case is heard by a panel of judges. First it goes to a panel of three judges, and then if you don’t like the answer you can try to get it heard by the rest of the judges on that circuit court in a process known as en banc review. Here in New York State, in New York City, you would go from the Southern District of New York to the Second Circuit Court of Appeals, and you could then try to get en banc review from the second circuit.
Okay. Finally, you can petition the Supreme Court to hear your case if you’re already within the federal system. Since you’re already in the federal system, that means there is definitely some kind of a federal hook, so you probably don’t have to worry about whether the Supreme Court has jurisdiction to take your case. Like I said, they will probably say no because they only hear 70 cases a year.
Two systems
The reason we have two systems in the United States is because we don’t think of ourselves as having a single sovereign. There are two sovereigns. And if we think about different kinds of especially criminal legal matters, what we’re dealing with in a philosophical way is an offense against the sovereign. The ultimate sovereign is the people, but when you commit a crime, you may have violated federal law, in which case you committed a crime against the United States, but you may have also violated state law, in which case you committed a crime against the state.
And so, each of those sovereigns has an independent interest in seeing its law enforced. So, if you have committed a single act but the act offends two different sovereigns, then there are two different wrongs that trace back to the same act.
And if you want to think about it conceptually, right – if I commit fraud, so this is – would be civil as opposed to criminal, but if I commit fraud against you in a single act, I may nevertheless have violated many of your interests and caused many different wrongs at the same time. And so you might want to vindicate those different wrongs even if they all trace back to a single transaction.
So that’s sort of like the quick answer about why the system allows this. It gets more nuanced and complicated because there are questions about when jeopardy attaches, and there are disagreements among law professors over whether this kind of subsequent prosecution for the same act should be allowed or not. But what I’ve just given you is the kind of philosophical explanation and the underlying legal explanation for why we allow it.
The last thing you asked about is a little bit different, though, which is about how sentencing works, and in the United States sentencing and guilt are separate from each other. So, the sentencing phase of a trial follows upon the guilt phase of a trial, and there are different considerations that attach. So, you can have concurrent sentences, but you can also stack them and have cumulative sentences, and that question is independent from the question of the double jeopardy – like the prosecution in two different court systems. So even in a single court system, a judge could decide that you need to serve your sentences concurrently or cumulatively even if that’s just a state sentence.
Training and selection of judges
The selection of judges in the federal system and state system is radically different, and the question of training is also really different. It’s hard to speak about the state system as a whole because there is no state system, right, there are 51 – at least – different state judge systems, the 50 states plus the District of Columbia. Territorial judges are a whole separate issue; military judges are a whole separate issue. Territorial and military judges are technically federal, but okay. And D.C. judges are complicated because the District of Columbia is a federal territory, but it’s organized sort of like a state system.
Each of the state judicial systems has a different way of going about selecting its judges. As you alluded to, the vast majority of state court judges are elected. So, we can say that as a general matter state judges are often elected, but how the elections work are really different state by state. In some states the judges run for election across the whole state. I can’t remember if any states have partisan judicial elections where you run as a Democrat or Republican, but in a lot of cases even if its nonpartisan people know that you are sort of connected to a party.
In New York state, even though you get to vote for your state judges, the judges are selected by the parties before the election, and that party selection happens through judicial delegates who you vote for at a different election, and then the delegates come together to select the judges. So you don’t get to vote for somebody who has campaigned across the state the same way that you vote for governor, so even there the election is actually – looks a little bit different. And in New York State, not all of the judges are elected. The supreme court judges are elected. The appellate division judges are selected by the governor from the elected judges at supreme court, and the judges on the highest court, the New York Court of Appeals, are selected by the governor from a short list produced by an independent nominating commission whose members are made up of gubernatorial and state legislature appointees. Right, so it can get really complicated really quickly.
Federal selection procedure
The federal selection procedure though, that’s very different and we all know about that because it’s in the Constitution. The President nominates an individual who then must be confirmed by the Senate, and that’s true for judges to the district courts, to the circuit courts of appeals, and to the United States Supreme Court. There are lots of other considerations that go into that. So for example, there are all kinds of informal procedures that allow states – that allow senators to block the nomination of judges to the district court, more complicated for the appeals court, not allowed at the Supreme Court level. The Senate has changed its rules around the filibuster to make it impossible to filibuster Supreme Court nominees, but I think you can still filibuster district judges, although actually I can’t remember that. Somebody who’s a real law professor should double-check that one.
But none of that is in the Constitution, right? Those are all just norms about how the Senate rules operate. Same thing with the blue slip process. So that’s like a whole separate thing to talk about. But as a general – oh, and then the last thing is that federal judges have life tenure. So once they’re on the bench, they are in that position as long as they’re not impeached until they decide to resign or until they die. Their salary cannot be diminished while they’re in office, and no mandatory retirement. Whereas state systems each do their own thing.
Term limits
Many state judges have term limits. So if you’re on the New York Court of Appeals, you’re there for a 14-year term, not for the rest of your life. If you’re on New York Supreme Court, I think it’s a 10-year term. Meanwhile, many states have mandatory retirement. So in New York, when you hit 70 years old, regardless of how many years you have left in your term, you have to retire, although you can ask for a special dispensation.
So very different, very different in the kinds of personnel that end up operating those systems, right? If you’re – if you’ve got life tenure and if you want to entrench your ideology in the judiciary, you nominate really young judges with the expectation that they will be there for many decades. And indeed, it’s routine in the federal system to see people serve for 20 years, 30 years. Whereas in the state system, if you’ve got mandatory retirement at 70 and you serve a 10- or 14-year term, yeah, sure you can nominate somebody who’s 60 years old. You don’t get any – if you’re trying to entrench your political party in charge, there’s no benefit to nominating a 30-year-old. They’ll still do the same 10-year term. So big differences there.
There’s a sociological difference too, but I’ve already gone on too long on that question, so I want to say something brief about the other two points. So is there overlap? Some, but not as much as you might think. And that’s a bit about the sociological point. In general, state judiciaries are perceived to be less prestigious than the federal judiciary.
National legal elites
In general, national legal elites in the United States tend to be nominated to federal positions, and in general, you see fewer national legal elites within the state system. That’s not universally true. So the chief judge of the New York Court of Appeals Rowan Wilson is by any description a national legal elite. He graduated I think from Harvard Law School, he was a partner at Cravath, which is one of the most storied firms in American legal history, and he clerked for federal judges, which makes him look very much like the kinds of judges that you would see in the federal system. Similarly, the judge that I was a law clerk for, Judge Rivera, was a law clerk to Sonia Sotomayor, who is now a Justice on the United States Supreme Court. So very much like the federal system.
But historically – and again, in people’s perception, I think this is bad. I’m not endorsing this. I’m just describing it. And I’ll just reiterate that I’m not an employee and I certainly don’t represent the position of the United States on this one. You’re just getting Professor Noah Rosenblum’s hot takes. But I think the – and like I said before, I think this is terrible. I think our state judiciaries are critical and they don’t get the respect that they deserve. But there’s a perception that they are less prestigious than the federal judiciary.
So there are lots of cases of state judges who are then nominated by the President to the federal judiciary and leave the state court system to become federal judges. Judge Ed Wesley was a judge on the New York Court of Appeals, the highest state court judge, and he was picked I think by President George H.W. Bush, although maybe it was W. Bush, to become a judge on the Second Circuit. I think President Donald Trump similarly nominated a judge from the Texas Supreme Court to become a Fifth Circuit federal judge. So that happens.
The reverse happens less frequently – that a federal judge leaves the federal bench to become a state court judge, although there are some interesting examples. So Judge Caitlin Halligan, who is now a judge on the New York Court of Appeals, had been nominated to be a D.C. Circuit judge, was not confirmed, and then became a judge on the New York Court of Appeals. Similarly, I think in California, Judge Goodwin Liu had been nominated to a federal judgeship, was not confirmed, and then became a judge on the California Supreme Court.
Election of judges
We have an incredibly powerful and partisan judiciary in the United States at the federal level even though our judges are not elected. So you said to me, Noah, hey, doesn’t the election of judges contribute to creating a partisan judiciary? And I push back and say, actually, when you have nomination by president and confirmation by senate, you can have an incredibly partisan judiciary. So it’s not obvious that election is the reason why the United States judiciary is so different from judiciaries in other countries.
I think a better explanation is in most other countries the way you become a judge – and I’m speaking to foreign journalists so you guys know this better than me – is through a separate professionalized training process. So I think in Germany, for example, the way that you become a lawyer is different from the way you become a judge. But in the United States we have a single, unified bar. So the way you become a judge is the same way you become a regular lawyer. And then in order to become a judge having been a lawyer, you have to participate in this partisan political process, right – nomination by president, confirmation by senate. And there’s a whole informal process that has been around since the 19th century in which state – in which senators, who are often connected to their political parties within their home states, vet and select the nominees for those offices. So whether you have election or nomination, if the selection of judges happens through a political process, and if you give a lot of political power to judges, you’ll have a really partisan judiciary.
In the 19th century, the judiciary was if anything even more partisan than it is today. So federal judges routinely weren’t just members of political parties; they actually ran presidential campaigns. So Judge David Davis, who became a Supreme Court justice, he got there because he was Lincoln’s campaign manager when President Lincoln was running for office, right? Where else in the world do you become a Supreme Court justice having been a campaign manager? Similarly, there was a prominent 19th century district judge who had been Stephen Douglas, the Democratic candidate’s right-hand guy, and he did that while he was also a federal judge. And there was nothing wrong about that. People were very open about how once they become judges, they would remain in partisan political activity.
District attorneys
District attorneys are separate because they are elected, right? And they are elected as part, in most states, of a political process. But again, you have to go state by state. So district attorneys are often elected, but in some states the attorney general is elected, and in other states the attorney general is appointed.
In the federal system, the U.S. attorneys are appointed, and there’s much – there’s a much longer tradition there of nonpartisanship. So the federal Department of Justice, probably since the very beginning but certainly since the late 19th century, has been very professionalized along administrative lines in a way that’s very different from many of the state systems. In general – there are exceptions obviously – but it is not uncommon in the United States for people to run for district attorney as part of their political rise to then want to become governor, right, or do some other partisan political position. That’s much less frequent in the Department of Justice and especially for the lawyers right below the United States attorney, the career civil servants in the DOJ.
