The ratification of the United States Constitution established the Supreme Court in 1789. Its powers are detailed in Article Three of the Constitution. The Supreme Court is the only court specifically established by the Constitution, and all the others were created by Congress. Congress is also responsible for conferring the title "justice" upon the associate justices, who have been known to scold lawyers for instead using the term "judge" which is the term used by the Constitution.
The Court first convened on February 2, 1790, by which time five of its six initial positions had been filled. The sixth member (James Iredell) joined on May 12, 1790. Because the full Court had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two). However, Congress has always allowed less than the Court's full membership to make decisions, starting with a quorum of four judges in 1789.
Under Chief Justices Jay, Rutledge, and Ellsworth (1789–1801), the Court heard few cases; its first decision was West v. Barnes (1791), a case involving a procedural issue. The Court lacked a home of its own and had little prestige, a situation not helped by the highest-profile case of the era, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.
The Marshall Court also ended the practice of each justice issuing his opinion seriatim, a remnant of British tradition, and instead issuing a single majority opinion. Also during Marshall's tenure, although beyond the Court's control, the impeachment and acquittal of Justice Samuel Chase in 1804–1805 helped cement the principle of judicial independence.
Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.
In 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine, where it has since remained.
President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to pack the Court with justices who would support Roosevelt's New Deal. The plan, usually called the "Court-packing Plan", failed in Congress. Nevertheless, the Court's balance began to shift within months when Justice van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice.
The President of the United States appoints justices "by and with the advice and consent of the Senate." Most presidents nominate candidates who broadly share their ideological views, although a justice's decisions may end up being contrary to a president's expectations. Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.
In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955. Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork in 1987.
Nevertheless, not every nominee has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, a nominee may be filibustered once debate has begun in the full Senate. No nomination for associate justice has ever been filibustered, but President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968. A president may also withdraw a nominee's name before the actual confirmation vote occurs, typically because it is clear that the Senate will reject them, most recently Harriet Miers in 2006.
Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the new justice can take office. The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.
Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees justices as playing a more political role than in the past.
When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (at most, less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and six associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.
No president since Dwight D. Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts. In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the Court should only be made in "unusual circumstances." Such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.
The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign or retire. Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805). Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they did not reach a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.
Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations, such as the eleven years between Stephen Breyer's nomination in 1994 to succeed Harry Blackmun and the nomination of John Roberts in 2005 to fill the seat of Sandra Day O'Connor (though Roberts' nomination was withdrawn and resubmitted for the role of Chief Justice after Rehnquist died).
Despite the variability, all but four Presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died early in his term, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became President after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the Court. Jimmy Carter is the only President to complete at least one term in office without making a nomination to the Court during his presidency.
The Court currently has six male and three female justices. One justice is African American, one is Latino, and two are Italian-Americans; six justices are Roman Catholics, and three are Jewish. The average age is 68 years, 1 month, and every current justice has an Ivy League background. Four justices are from the state of New York, two from New Jersey, two from California, and one from Georgia.
In the 19th century, every justice was a male of European descent, almost always Protestant and of Northern European descent, and concerns about diversity focused on geography, to represent all regions of the country, rather than ethnic, religious, or gender diversity.Thurgood Marshall became the first African American Justice in 1967, and Sandra Day O'Connor became the first female Justice in 1981. O'Connor, whose appointment fulfilled Ronald Reagan's campaign promise to place a woman on the Court, was later joined by Ruth Bader Ginsburg, appointed by Bill Clinton in 1993. Marshall was succeeded by Clarence Thomas in 1991, who is the second African American to serve on the Supreme Court. In 1986, Antonin Scalia became the first Italian-American to serve on the Court. After O'Connor had in 2006 been succeeded by Samuel Alito, Ginsburg was in 2009 joined by Sonia Sotomayor, the first Latino justice, and in 2010 by Elena Kagan, so that there were three female justices.
There are currently three living retired justices of the Supreme Court of the United States: John Paul Stevens, Sandra Day O'Connor, and David Souter. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the Chief Justice, on request of the Chief Judge of the lower court and with the consent of the retired Justice. In recent years, Justice O'Connor has sat with several Courts of Appeals around the country, and Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court.
The status of a retired Justice is analogous to that of a Circuit or District Judge who has taken senior status, and eligibility of a Supreme Court Justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.
Justices sometimes strategically plan their decisions to leave the bench, with personal, institutional, and partisan factors playing a role. The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a compatible president holding office to ensure that a like-minded successor would be appointed.
Many of the internal operations of the Court are organized by the seniority of the justices; the Chief Justice is considered the most senior member of the Court, regardless of the length of his or her service. The Associate Justices are then ranked by the length of their service.
During Court sessions, the justices sit according to seniority, with the Chief Justice in the center, and the Associate Justices on alternating sides, with the most senior Associate Justice on the Chief Justice's immediate right, and the most junior Associate Justice seated on the left farthest away from the Chief Justice. Therefore, the current court sits as follows from left to right, from the perspective of those facing the Court: Sotomayor, Breyer, Thomas, Scalia (most senior Associate Justice), Roberts (Chief Justice), Kennedy, Ginsburg, Alito, and Kagan (most junior Associate Justice). In the official yearly Court photograph, justices are arranged similarly, with the five most senior members sitting in the front row in the same order as they would sit during Court sessions (Thomas, Scalia, Roberts, Kennedy, Ginsburg), and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions (Sotomayor, Breyer, Alito, Kagan).
In the justices' private conferences, the current practice is for them to speak and vote in order of seniority from the Chief Justice first to the most junior Associate Justice last. The most junior Associate Justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving coffee, and transmitting the orders of the Court to the court's clerk. Justice Joseph Story served the longest as the junior justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows close behind, with 4,199 days when Samuel Alito joined the court on January 31, 2006.
For the years 2009 through 2012, associate justices were paid $213,900 and the chief justice $223,500.Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the normal formula for federal employees, but a justice's pension will never be less than their salary at time of retirement. (The same procedure applies to judges of other federal courts.)
While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, generally refer to legal outlook rather than a political or legislative one.
As of the October 2012 term, the Court consists of five justices appointed by Republican presidents and four appointed by Democratic presidents. It is popularly accepted that Chief Justice Roberts and justices Scalia, Thomas, and Alito (appointed by Republican presidents) comprise the Court's conservative wing. Justices Ginsburg, Breyer, Sotomayor, and Kagan (appointed by Democratic presidents) comprise the Court's liberal wing. Justice Kennedy (appointed by President Reagan) is generally considered "a conservative who has occasionally voted with liberals", and is often the swing vote that determines the outcome of close cases.
Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions." He points out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defy the popular conception of the ideological lines of the Court. Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) are an illustration that the conservative justices have not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacks merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.
According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5–4 vote, with an average of 70% of those split opinions decided by a Court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the Court has divided along ideological lines, which represents about 44% of all the 5–4 decisions.
In the October 2010 term, the Court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the Court reverses a lower court without arguments and without issuing an opinion on the case). Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9–0 or 8–0), and 16 decisions were made by a 5–4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term). However, in fourteen of the sixteen 5–4 decisions, the Court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5–4 decisions, the highest cohesion rate of that bloc in the Roberts court.
In the October 2011 term, the Court decided 75 cases. Of these, 33 (about 44%) were decided unanimously, and 15 (about 20%, the same percentage as in the previous term) were decided by a vote of 5–4. Of the latter 15, the Court divided along the perceived ideological lines 10 times, with Justice Kennedy siding with the conservative justices (Roberts, Scalia, Thomas, and Alito) five times, and with the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) five times.
In the October 2012 term, the Court decided 78 cases. Five of them were decided in unsigned opinions. 38 out of the 78 decisions (representing 49% of the decisions) were unanimous in judgement, with 24 decisions being completely unanimous (a single opinion with every justice that participated joined). This was the largest percentage of unanimous decisions that the Court had in ten years, since the October 2002 term (when 51% of the decisions handed down were unanimous). The Court split 5-4 in 23 cases (29% of the total); of these, 16 broke down along the traditionally perceived ideological lines, with Chief Justice Roberts and Justices Scalia, Thomas, and Alito on one side, Justices Ginsburg, Breyer, Sotomayor and Kagan on the other, and Justice Kennedy holding the balance. Of these 16 cases, Justice Kennedy sided with the conservatives on 10 cases, and with the liberals on 6. Three cases were decided by an interesting alignment of justices, with Chief Justice Roberts joined by Justices Kennedy, Thomas, Breyer and Alito in the majority, with Justices Scalia, Ginsburg, Sotomayor, and Kagan in the minority. The greatest agreement between justices was between Ginsburg and Kagan, who agreed on 72 of the 75 cases in which both voted; the lowest agreement between justices was between Ginsburg and Alito, who agreed only on 45 out of 77 cases in which they both participated. Justice Kennedy was in the majority of 5-4 decisions on 20 out of the 24 cases, and in 71 of the 78 cases of the term, in line with his position as the "swing-vote" of the Court.
The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City. When Philadelphia became the capital, the Court met briefly in Independence Hall before settling in Old City Hall from 1791 until 1800. After the government moved to Washington, D.C., the Court occupied various spaces in the United States Capitol building until 1935, when it moved into its own purpose-built home. The four-story building was designed by Cass Gilbert in a classical style sympathetic to the surrounding buildings of the Capitol and Library of Congress, and is clad in marble. The building includes the courtroom, justices' chambers, an extensive law library, various meeting spaces, and auxiliary services including a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own police force separate from the Capitol Police.
Located across the street from the United States Capitol at One First Street NE and Maryland Avenue, the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays. Visitors may not tour the actual courtroom unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film. When the Court is not in session, lectures about the courtroom are held hourly from 9:30 am to 3:30 pm and reservations are not necessary. When the Court is in session the public may attend oral arguments, which are held twice each morning (and sometimes afternoons) on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available. The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. From mid-May until the end of June, the court releases orders and opinions beginning at 10 am, and these 15 to 30-minute sessions are open to the public on a similar basis. Supreme Court Police are available to answer questions.
Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review.
The 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; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The jurisdiction of the federal courts was further limited by the Eleventh Amendment to the United States Constitution, which forbade federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (see Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to regulate the court's appellate jurisdiction. The federal courts may hear cases only if one or more of the following conditions are met:
If there is diversity of citizenship (meaning, the parties are citizens of different states or countries, including foreign states), and the amount of damages exceeds $75,000.
If the case presents a federal question, meaning that it involves a claim or issue "arising under the Constitution, laws, or treaties of the United States", assuming that the question is not constitutionally committed to another branch of government.
If the United States federal government (including the Post Office) is a party in the case.
Exercise of this power can become controversial (see jurisdiction stripping). For example, 28 U.S.C.§ 2241(e)(1), as amended by the Detainee Treatment Act, provides that "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."
The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Court has only appellate jurisdiction. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.
The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases.
Since Article Three of the United States Constitution stipulates that federal courts may only entertain "cases" or "controversies", the Supreme Court avoids deciding cases that are moot and does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard, 416 U.S.312 (1974), the Court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the Court on his claim would not be able to redress any injury he had suffered. The mootness exception is not absolute. If an issue is "capable of repetition yet evading review", the Court will address it even though the party before the Court would not himself be made whole by a favorable result. In Roe v. Wade, 410 U.S.113 (1973), and other abortion cases, the Court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer than the typical human gestation period to appeal a case through the lower courts to the Supreme Court.
Justices as Circuit Justices
The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "Circuit Justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time.
Under the Judiciary Act of 1789, each Justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many Justices, who cited the difficulty of travel. Moreover, several individuals opposed it because a Justice could not be expected to be impartial in an appeal if he had previously decided the same case while riding circuit. Circuit riding was abolished in 1891.
Today, the Circuit Justice for each circuit is responsible for dealing with certain types of applications that, under the Court's rules, may be addressed by a single Justice. These include applications for emergency stays (including stays of execution in death-penalty cases) and injunctions pursuant to the All Writs Act arising from cases within that circuit, as well as routine requests such as requests for extensions of time. In the past, Circuit Justices also sometimes ruled on motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal. Ordinarily, a Justice will resolve such an application by simply endorsing it "Granted" or "Denied" or entering a standard form of order. However, the Justice may elect to write an opinion—referred to as an in-chambers opinion—in such matters if he or she wishes.
A Circuit Justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A Circuit Justice sitting with the Court of Appeals has seniority over the Chief Judge of the circuit.
The Chief Justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each Associate Justice is assigned to one or two judicial circuits.
As of September 28, 2010, the allotment of the justices among the circuits is:
Four of the current Justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Breyer (First Circuit), Justice Alito (Third Circuit), and Justice Kennedy (Ninth Circuit).
A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of approximately two weeks known as "sittings" and "recesses." Justices hear cases and deliver rulings during sittings; they discuss cases and write opinions during recesses.
Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as "cert". The Court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case". The Court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law. The party that appealed to the Court is the petitioner and the non-mover is the respondent. All case names before the Court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.
There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford, parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact. Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.
The common shorthand name for cases is typically the first party (the petitioner). For example, Brown v. Board of Education is referred to simply as Brown, and Roe v. Wade as Roe. The exception to this rule is when the name of a state, or the United States, or some government entity, is the first listed party. In that instance, the name of the second party is the shorthand name. For example, Iowa v. Tovar is referred to simply as Tovar, and Gonzales v. Raich is referred to simply as Raich, because the first party, Alberto Gonzales, was sued in his official capacity as the United States Attorney General.
A cert petition is voted on at a session of the court called a conference. A conference is a private meeting of the nine Justices by themselves; the public and the Justices' clerks are excluded. If four Justices vote to grant the petition, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.
The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:
Resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution
Correcting an egregious departure from the accepted and usual course of judicial proceedings
Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the Court.
When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split". If the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the final ruling in the case.
To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool." Currently, all justices except for Justice Alito participate in the cert pool.
When the Court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae, or "friends of the court", may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the Court may choose to give more time, though this is rare), and during that time, the Justices may interrupt the advocate and ask questions. The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.
The Supreme Court bar
In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys. The rest join for a one-time fee of $200, earning the court about $750,000 annually. The lawyers mostly apply for the trophy of a certificate for their office, an addition for their resume, and access to better seating if they wish to attend an oral argument.
At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions, circulate among the Justices until the Court is prepared to announce the judgment in a particular case.
It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought directly to the Supreme Court by direct appeal from a United States District Court, the Chief Justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there. This has only occurred once in U.S. history, in the case of United States v. Alcoa.
The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, several opinions are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports—or a competing version published by another commercial legal publisher—to allow those who read their pleadings and other briefs to find the cases quickly and easily.
As of March 2012[ref][dead link], there are 566 volumes of U.S. Reports. Lawyers use an abbreviated format to cite cases, in the form vvv U.S. ppp (yyyy). The number before the "U.S." refers to the volume number, and the number after the U.S. refers to the page within that volume. The number in parentheses is the year in which the case was decided. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973) and it means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For hot-from-the-press judgments, the volume and page numbers are replaced with "___". As of March 2012[update], the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012. This figure does not reflect the number of cases the Court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle, where Meredith v. Jefferson County Board of Education was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which comprise a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.
Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter, published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals, and other legal media, case citations generally contain the cites from each of the three reporters; for example, the citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Com'n, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition.
Institutional powers and constraints
The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of this Court to overturn laws and executive actions it deems unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances. This power allows judges to have the last word on allocation of authority among the three branches of the federal government, which grants them the ability to set bounds to their own authority, as well as to their immunity from outside checks and balances.
The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"; however, this alleged quotation has been disputed. Some state governments in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon, however, ultimately complied with the Supreme Court's ruling.
Some argue that the Supreme Court is "the most separated and least checked of all branches of government." Justices are not required to stand for election by virtue of their tenure "during good behavior", and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v. Georgia (1793); the Thirteenth and Fourteenth Amendments in effect overturned Dred Scott v. Sandford (1857); the Sixteenth Amendment reversed Pollock v. Farmers' Loan and Trust Co. (1895); and the Twenty-sixth Amendment overturned some portions of Oregon v. Mitchell (1970). However, when the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter act, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.
In addition, the other two branches can restrain the Court through other mechanisms. Congress can increase the number of justices, giving the President power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The Court sanctioned such congressional action in the Reconstruction case ex parte McCardle (1869), though it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871).
Each Supreme Court justice hires several law clerks to review petitions for writ of certiorari, research them, prepare bench memorandums, and draft opinions. Associate justices are allowed four clerks. The chief justice is allowed five clerks, but Chief Justice Rehnquist hired only three per year, and Chief Justice Roberts usually hires only four. Generally, law clerks serve a term of one to two years.
The first female clerk was Lucile Lomen, hired in 1944 by Justice William O. Douglas. The first African-American, William T. Coleman, Jr., was hired in 1948 by Justice Felix Frankfurter. A disproportionately large number of law clerks have obtained law degrees from elite law schools, especially Harvard, Yale, the University of Chicago, Columbia, and Stanford. From 1882 to 1940, 62% of law clerks were graduates of Harvard Law School. Those chosen to be Supreme Court law clerks usually have graduated in the top of their law school class and were often an editor of the law review or a participant in moot court. In recent times,[when?] clerking previously for a judge in a federal circuit court has been a prerequisite to clerking for a Supreme Court justice.
Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s", according to a study published in 2009 by the law review of Vanderbilt University Law School. "As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts", former federal court of appeals judge J. Michael Luttig said.David J. Garrow, professor of history at the University of Cambridge, stated that the Court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives", Professor Garrow said. "Each side is putting forward only ideological purists."
According to the Vanderbilt Law Review study, this politicized hiring trend reinforces the impression that the Supreme Court is "a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law."
A poll conducted in June 2012 by The New York Times and CBS News showed that just 44 percent of Americans approve of the job the Supreme Court is doing. Three-quarters said the justices' decisions are sometimes influenced by their political or personal views.
Federal versus state power: There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison and Alexander Hamilton argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, others argue that expansive federal power is good and consistent with the Framers' wishes. The Tenth Amendment to the United States Constitution explicitly grants "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005. Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Justice Alito said congressional authority under the Commerce Clause is "quite broad." Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the Court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be "laboratories" of democracy. One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."
Judicial interference in political disputes: Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals. Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called political questions.
Failing to protect individual rights: Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal;Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights. A student criticized a 1988 ruling that allowed school officials "to block publication of a student article in the high school newspaper." Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver's licenses, especially poor and minority voters", according to one report. Senator Al Franken criticized the Court for "eroding individual rights." However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.
Supreme Court has too much power: This criticism is related to complaints about judicial activism. George Will wrote that the Court has an "increasingly central role in American governance." It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009. A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch. Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis".Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."
Courts are poor check on executive power: British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to wend their way through the system, their ability to restrain the other two branches is severely weakened.
Not choosing enough cases to review: Senator Arlen Specter said the Court should "decide more cases". On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court hears now is smaller today than when he first joined the Supreme Court, he also stated that he has not changed his standards for deciding whether to review a case, nor does he believe his colleagues have changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.
Secretive proceedings: The Court has been criticized for keeping its deliberations hidden from public view. Its inner workings are difficult for reporters to cover, like a closed "cartel", only revealing itself through "public events and printed releases, with nothing about its inner workings", according to a review of Jeffrey Toobin's expose The Nine: Inside the Secret World of the Supreme Court. The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives."Larry Sabato complains about the Court's "insularity." A Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised. In recent years, many justices have appeared on television, written books, and made public statements to journalists. In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Lyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution, with only the justices' private conferences being inaccessible to others. In October 2010, the Court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they take place.
Lifetime tenure: Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day."Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." Proposals to solve these problems include term limits for justices, as proposed by Levinson and Sabato as well as a mandatory retirement age proposed by Richard Epstein. However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."
^Garrett Epps (October 24, 2004). "Don't Do It, Justices". The Washington Post. Retrieved 2009-10-31. "The court's prestige has been hard-won. In the early 1800s, Chief Justice John Marshall made the court respected"
^Jeffrey Rosen (book review of "Packing the Court" by James MacGregor Burns) (July 5, 2009). "Black Robe Politics". Washington Post. Retrieved 2009-10-31. "From the beginning, Burns continues, the Court has established its "supremacy" over the president and Congress because of Chief Justice John Marshall's "brilliant political coup" in Marbury v. Madison (1803): asserting a power to strike down unconstitutional laws."
^"The People's Vote: 100 Documents that Shaped America – Marbury v. Madison (1803)". US News & World Report. 1803. Retrieved 2009-10-31. "With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of "checks and balances" created to prevent any one branch of the Federal Government from becoming too powerful...A Law repugnant to the Constitution is void."
^Cliff Sloan and David McKean (February 21, 2009). "Why Marbury V. Madison Still Matters". Newsweek. Retrieved 2009-10-31. "More than 200 years after the high court ruled, the decision in that landmark case continues to resonate."
^"The Constitution In Law: Its Phases Construed by the Federal Supreme Court" (PDF). New York Times. February 27, 1893. Retrieved 2009-10-31. "The decision ... in Martin vs. Hunter's Lessee is the authority on which lawyers and Judges have rested the doctrine that where there is in question, in the highest court of a State, and decided adversely to the validity of a State statute... such claim is reviewable by the Supreme Court ..."
^Justices Ginsburg, Stevens, Souter, Breyer (December 13, 2000). "Dissenting opinions in Bush v. Gore". USA Today. Retrieved 2009-10-31. "Rarely has this Court rejected outright an interpretation of state law by a state high court ... The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816)."
^ ab"The Supreme Quiz". Washington Post. October 2, 2000. Retrieved 2009-10-31. "According to the Oxford Companion to the Supreme Court of the United States, Marshall's most important innovation was to persuade the other justices to stop seriatim opinions – each issuing one – so that the court could speak in a single voice. Since the mid-1940s, however, there's been a significant increase in individual "concurring" and "dissenting" opinions."[dead link]
^Slater, Dan (April 18, 2008). "Justice Stevens on the Death Penalty: A Promise of Fairness Unfulfilled". Wall Street Journal. Retrieved 2009-10-31. "The first Chief Justice, John Marshall set out to do away with seriatim opinions–a practice originating in England in which each appellate judge writes an opinion in ruling on a single case. (You may have read old tort cases in law school with such opinions). Marshall sought to do away with this practice to help build the Court into a coequal branch."
^Suddath, Claire (Dec. 19, 2008). "A Brief History Of Impeachment". Time Magazine. Retrieved 2009-10-31. "Congress tried the process again in 1804, when it voted to impeach Supreme Court Justice Samuel Chase on charges of bad conduct. As a judge, Chase was overzealous and notoriously unfair ... But Chase never committed a crime — he was just incredibly bad at his job. The Senate acquitted him on every count."Check date values in: |date= (help)
^Linda Greenhouse (April 10, 1996). "Rehnquist Joins Fray on Rulings, Defending Judicial Independence". New York Times. Retrieved 2009-10-31. "the 1805 Senate trial of Justice Samuel Chase, who had been impeached by the House of Representatives ... This decision by the Senate was enormously important in securing the kind of judicial independence contemplated by Article III" of the Constitution, Chief Justice Rehnquist said"
^Sherrilyn A. Ifill (May 27, 2009). "Sotomayor's Great Legal Mind Long Ago Defeated Race, Gender Nonsense". US News & World Report. Retrieved 2009-10-31. "But his decision in Dred Scott v. Sandford doomed thousands of black slaves and freedmen to a stateless existence within the United States until the passage of the 14th Amendment. Justice Taney's coldly self-fulfilling statement in Dred Scott, that blacks had "no rights which the white man [was] bound to respect", has ensured his place in history—not as a brilliant jurist, but as among the most insensitive"
^Irons, Peter; Howard Zinn (wrote foreword) (2006). A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution. United States: Penguin Books. pp. 176, 177. ISBN0-14-303738-2. "The rhetorical battle that followed the Dred Scott decision, as we know, later erupted into the gunfire and bloodshed of the Civil War (p.176)... his opinion (Taney's) touched off an explosive reaction on both sides of the slavery issue... (p.177)"Cite uses deprecated parameters (help)
^"Liberty of Contract?". Exploring Constitutional Conflicts. October 31, 2009. Retrieved 2009-10-31. "The term "substantive due process" is often used to describe the approach first used in Lochner—the finding of liberties not explicitly protected by the text of the Constitution to be impliedly protected by the liberty clause of the Fourteenth Amendment. In the 1960s, long after the Court repudiated its Lochner line of cases, substantive due process became the basis for protecting personal rights such as the right of privacy, the right to maintain intimate family relationships."
^Bodenhamer, David J.; James W. Ely (1993). The Bill of Rights in modern America. Bloomington, Indiana: Indiana University Press. p. 245. ISBN978-0-253-35159-3. "... of what eventually became the 'incorporation doctrine,' by which various federal Bill of Rights guarantees were held to be implicit in the Fourteenth Amendment due process or equal protection."Cite uses deprecated parameters (help)
^Edward Douglass White. "Opinion for the Court, Arver v. U.S. 245 U.S. 366". "Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement."
^Bernard H. Siegan (1987). The Supreme Court's Constitution. Transaction Publishers. p. 146. ISBN978-0-88738-671-8. Retrieved 2009-10-31. "In the 1923 case of Adkins v. Children's Hospital, the court invalidated a classification based on gender as inconsistent with the substantive due process requirements of the fifth amendment. At issue was congressional legislation providing for the fixing of minimum wages for women and minors in the District of Columbia. (p.146)"
^Seth Lipsky (October 22, 2009). "All the News That's Fit to Subsidize". Wall Street Journal. Retrieved 2009-10-31. "He was a farmer in Ohio ... during the 1930s, when subsidies were brought in for farmers. With subsidies came restrictions on how much wheat one could grow—even, Filburn learned in a landmark Supreme Court case, Wickard v. Filburn (1942), wheat grown on his modest farm."
^Adam Cohen (December 14, 2004). "What's New in the Legal World? A Growing Campaign to Undo the New Deal". New York Times. Retrieved 2009-10-31. "Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest. Supporters of states' rights have always blamed Wickard ... for paving the way for strong federal action..."
^United Press International (September 25, 1971). "Justice Black Dies at 85; Served on Court 34 Years". New York Times. Retrieved 2009-10-31. "Justice Black developed his controversial theory, first stated in a lengthy, scholarly dissent in 1947, that the due process clause applied the first eight amendments of the Bill of Rights to the states."
^"100 Documents that Shaped America Brown v. Board of Education (1954)". US News & World Report. May 17, 1954. Retrieved 2009-10-31. "On May 17, 1954, U.S. Supreme Court Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th amendment and was therefore unconstitutional. This historic decision marked the end of the "separate but equal" ... and served as a catalyst for the expanding civil rights movement..."
^"Essay: In defense of privacy". Time. July 15, 1966. Retrieved 2009-10-31. "The biggest legal milestone in this field was last year's Supreme Court decision in Griswold v. Connecticut, which overthrew the state's law against the use of contraceptives as an invasion of marital privacy, and for the first time declared the "right of privacy" to be derived from the Constitution itself."
^Nancy Gibbs (Dec. 9, 1991). "America's Holy War". Time. Retrieved 2009-10-31. "In the landmark 1962 case Engel v. Vitale, the high court threw out a brief nondenominational prayer composed by state officials that was recommended for use in New York State schools. "It is no part of the business of government", ruled the court, "to compose official prayers for any group of the American people to recite.""Check date values in: |date= (help)
^William R. Mattox Jr., Katrina Trinko (August 17, 2009). "Teach the Bible? Of course.". USA Today. Retrieved 2009-10-31. "Public schools need not proselytize — indeed, must not — in teaching students about the Good Book ... In Abington School District v. Schempp, decided in 1963, the Supreme Court stated that "study of the Bible or of religion, when presented objectively as part of a secular program of education", was permissible under the First Amendment."[dead link]
^"The Law: The Retroactivity Riddle". Time Magazine. June 18, 1965. Retrieved 2009-10-31. "Last week, in a 7 to 2 decision, the court refused for the first time to give retroactive effect to a great Bill of Rights decision—Mapp v. Ohio (1961)."
^"The Supreme Court: Now Comes the Sixth Amendment". Time. April 16, 1965. Retrieved 2009-10-31. "Sixth Amendment's right to counsel (Gideon v. Wainwright in 1963). ... the court said flatly in 1904: 'The Sixth Amendment does not apply to proceedings in state criminal courts." But in the light of Gideon ... ruled Black, statements 'generally declaring that the Sixth Amendment does not apply to states can no longer be regarded as law.'"
^"Guilt and Mr. Meese". New York Times. January 31, 1987. Retrieved 2009-10-31. "1966 Miranda v. Arizona decision. That's the famous decision that made confessions inadmissible as evidence unless an accused person has been warned by police of the right to silence and to a lawyer, and waived it."
^Karen O'Connor (January 22, 2009). "Roe v. Wade: On Anniversary, Abortion Is out of the Spotlight". US News & World Report. Retrieved 2009-10-31. "The shocker, however, came in 1973, when the Court, by a vote of 7 to 2, relied on Griswold's basic underpinnings to rule that a Texas law prohibiting abortions in most situations was unconstitutional, invalidating the laws of most states. Relying on a woman's right to privacy..."
^"Bakke Wins, Quotas Lose". Time. July 10, 1978. Retrieved 2009-10-31. "Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of 'affirmative action'..."
^"Time to Rethink Buckley v. Valeo". New York Times. November 12, 1998. Retrieved 2009-10-31. "...Buckley v. Valeo. The nation's political system has suffered ever since from that decision, which held that mandatory limits on campaign spending unconstitutionally limit free speech. The decision did much to promote the explosive growth of campaign contributions from special interests and to enhance the advantage incumbents enjoy over underfunded challengers."
^ abStaff writer (June 29, 1972). "Supreme Court Justice Rehnquist's Key Decisions". Washington Post. Retrieved 2009-10-31. "Furman v. Georgia ... Rehnquist dissents from the Supreme Court conclusion that many state laws on capital punishment are capricious and arbitrary and therefore unconstitutional."
^"A Supreme Revelation". Wall Street Journal. April 19, 2008. Retrieved 2009-10-31. "Thirty-two years ago, Justice John Paul Stevens sided with the majority in a famous "never mind" ruling by the Supreme Court. Gregg v. Georgia, in 1976, overturned Furman v. Georgia, which had declared the death penalty unconstitutional only four years earlier."
^Linda Greenhouse (January 8, 2009). "The Chief Justice on the Spot". New York Times. Retrieved 2009-10-31. "The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments."
^Linda Greenhouse (September 4, 2005). "William H. Rehnquist, Chief Justice of Supreme Court, Is Dead at 80". New York Times. Retrieved 2009-10-31. "United States v. Lopez in 1995 raised the stakes in the debate over federal authority even higher. The decision declared unconstitutional a Federal law, the Gun Free School Zones Act of 1990, that made it a federal crime to carry a gun within 1,000 feet of a school."
^Linda Greenhouse (June 12, 2005). "The Rehnquist Court and Its Imperiled States' Rights Legacy". New York Times. Retrieved 2009-10-31. "Intrastate activity that was not essentially economic was beyond Congress's reach under the Commerce Clause, Chief Justice Rehnquist wrote for the 5-to-4 majority in United States v. Morrison."
^Linda Greenhouse (March 22, 2005). "Inmates Who Follow Satanism and Wicca Find Unlikely Ally". New York Times. Retrieved 2009-10-31. "His (Rehnquist's) reference was to a landmark 1997 decision, City of Boerne v. Flores, in which the court ruled that the predecessor to the current law, the Religious Freedom Restoration Act, exceeded Congress's authority and was unconstitutional as applied to the states."
^Vikram David Amar (July 27, 2005). "Casing John Roberts". New York Times. Retrieved 2009-10-31. "SEMINOLE TRIBE v. FLORIDA (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result."
^Linda Greenhouse (April 1, 1999). "Justices Seem Ready to Tilt More Toward States in Federalism". New York Times. Retrieved 2009-10-31. "The argument in this case, Alden v. Maine, No. 98-436, proceeded on several levels simultaneously. On the surface ... On a deeper level, the argument was a continuation of the Court's struggle over an even more basic issue: the Government's substantive authority over the states."
^Michael A. Lindenberger (Michael A. Lindenberger). "The Court's Gay Rights Legacy". Time Magazine. Retrieved 2009-10-31. "The decision in the Lawrence v. Texas case overturned convictions against two Houston men, whom police had arrested after busting into their home and finding them engaged in sex. And for the first time in their lives, thousands of gay men and women who lived in states where sodomy had been illegal were free to be gay without being criminals."Check date values in: |date= (help)
^Justice Sotomayor (July 16, 2009). "Retire the 'Ginsburg rule' – The 'Roe' recital". USA Today. Retrieved 2009-10-31. "The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court."[dead link]
^Gary Kamiya (July 4, 2001). "Against the Law". Salon.com. Retrieved 2012-11-21. "...the remedy was far more harmful than the problem. By stopping the recount, the high court clearly denied many thousands of voters who cast legal votes, as defined by established Florida law, their constitutional right to have their votes counted. ... It cannot be a legitimate use of law to disenfranchise legal voters when recourse is available. ..."
^Charles Krauthammer (Dec. 18, 2000). "The Winner in Bush v. Gore?". Time Magazine. Retrieved 2009-10-31. "Re-enter the Rehnquist court. Amid the chaos, somebody had to play Daddy. ... the Supreme Court eschewed subtlety this time and bluntly stopped the Florida Supreme Court in its tracks—and stayed its willfulness. By , mind you, ..."Check date values in: |date= (help)
^Charles Babington and Peter Baker (September 30, 2005). "Roberts Confirmed as 17th Chief Justice". Washington Post. Retrieved 2009-11-01. "John Glover Roberts Jr. was sworn in yesterday as the 17th chief justice of the United States, enabling President Bush to put his stamp on the Supreme Court for decades to come, even as he prepares to name a second nominee to the nine-member court."
^Linda Greenhouse (July 1, 2007). "In Steps Big and Small, Supreme Court Moved Right". New York Times. Retrieved 2009-11-01. "It was the Supreme Court that conservatives had long yearned for and that liberals feared ... This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small."
^Robert Barnes (October 1, 2009). "Justices to Decide if State Gun Laws Violate Rights". Washington Post. Retrieved 2009-11-01. "The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5 to 4 opinion in District of Columbia v. Heller..."
^Linda Greenhouse (April 18, 2008). "Justice Stevens Renounces Capital Punishment". New York Times. Retrieved 2009-11-01. "His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic."
^Linda Greenhouse (June 26, 2008). "Supreme Court Rejects Death Penalty for Child Rape". New York Times. Retrieved 2009-11-01. "The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday ... The 5-to-4 decision overturned death penalty laws in Louisiana and five other states."
^See, e.g., Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), which concerned the recess appointment of William Pryor. Concurring in denial of certiorari, Justice Stevens observed that the case involved "the first such appointment of an Article III judge in nearly a half century" 544 U.S. 942 (2005) (Stevens, J., concurring in denial of cert) (internal quotation marks deleted).
^ abFisher, Louis (September 5, 2001). "Recess Appointments of Federal Judges" (PDF). CRSN Report for Congress. Congressional Research Service (The Library of Congress). RL31112: 16–18. Retrieved 2010-08-06. "Resolved, That it is the sense of the Senate that the making of recess appointments to the Supreme Court of the United States may not be wholly consistent with the best interests of the Supreme Court, the nominee who may be involved, the litigants before the Court, nor indeed the people of the United States, and that such appointments, therefore, should not be made except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court's business."
^The resolution passed by a vote of 48 to 37, mainly along party lines; Democrats supported the resolution 48–4, and Republicans opposed it 33–0.
^Greenhouse, Linda (September 9, 2010). "An Invisible Chief Justice". The New York Times. Retrieved 2010-09-09. "Had [O'Connor] anticipated that the chief justice would not serve out the next Supreme Court term, she told me after his death, she would have delayed her own retirement for a year rather than burden the court with two simultaneous vacancies. [...] Her reason for leaving was that her husband, suffering from Alzheimer's disease, needed her care at home."
^Ward, Artemus (2003). Deciding to Leave: The Politics of Retirement from the United States Supreme Court. SUNY Press. p. 358. ISBN978-0-7914-5651-4. "One byproduct of the increased [retirement benefit] provisions [in 1954], however has been a dramatic rise in the number of justices engaging in succession politics by trying to time their departures to coincide with a compatible president. The most recent departures have been partisan, some more blatantly than others, and have bolstered arguments to reform the process. A second byproduct has been an increase in justices staying on the Court past their ability to adequately contribute. p. 9"
^See for example Sandra Day O'Connor:How the first woman on the Supreme Court became its most influential justice, by Joan Biskupic, Harper Collins, 2005, p. 105. Also Rookie on the Bench: The Role of the Junior Justice by Clare Cushman, Journal of Supreme Court History 32 no. 3 (2008), pp. 282–296.
^Lane, Charles (31 January 2006). "Kennedy Seen as The Next Justice In Court's Middle". Washington Post. "If, as many expect, Alito forms a four-vote conservative bloc with Chief Justice John G. Roberts Jr. and Justices Antonin Scalia and Clarence Thomas, that would leave Justice Anthony M. Kennedy – a conservative who has occasionally voted with liberals on gay rights, the death penalty and abortion – as the court's least predictable member."
^Among the examples mentioned by Goldstein for the 2009 term were:
Dolan v. United States, which interpreted judges' prerogatives broadly, typically a "conservative" result. The majority consisted of the five junior Justices: Thomas, Ginsburg, Breyer, Alito, and Sotomayor.
Magwood v. Patterson, which expanded habeas corpus petitions, a "liberal" result, in an opinion by Thomas, joined by Stevens, Scalia, Breyer, and Sotomayor.
Shady Grove Orthopedic Associates v. Allstate Insurance Co., which yielded a pro-plaintiff result in an opinion by Scalia joined by Roberts, Stevens, Thomas, and Sotomayor.
Goldstein notes that in the 2009 term, the justice most consistently pro-government was Alito, and not the commonly perceived "arch-conservatives" Scalia and Thomas.
^Pat Buchanan (July 6, 2005). "The judges war: an issue of power". Townhall.com. Retrieved 2009-10-23. "The Brown decision of 1954, desegregating the schools of 17 states and the District of Columbia, awakened the nation to the court's new claim to power."
^Abraham Lincoln (March 4, 1861). "First Inaugural Address". National Center. Retrieved 2009-10-23. "At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."
^Irons, Peter. A People's History of the Supreme Court. London: Penguin, 1999. ISBN 0-670-87006-4
^Adam Liptak (January 31, 2009). "To Nudge, Shift or Shove the Supreme Court Left". New York Times. Retrieved 2009-10-23. "Every judge who's been appointed to the court since Lewis Powell...in 1971...has been more conservative than his or her predecessor"
^Mark I. Sutherland; Dave Meyer, William J. Federer, Alan Keyes, Ed Meese, Phyllis Schlafly, Howard Phillips, Alan E. Sears, Ben DuPre, Rev. Rick Scarborough, David C. Gibbs III, Mathew D. Staver, Don Feder, Herbert W. Titus (2005). Judicial Tyranny: The New Kings of America. St. Louis, Missouri: Amerisearch Inc. p. 242. ISBN0-9753455-6-7.Cite uses deprecated parameters (help)
^Alexander Hamilton (aka Publius) (1789). "Federalist No. 28". Independent Journal. Retrieved 2009-10-24. "Power being almost always the rival of power; the General Government will at all times stand ready to check the usurpations of the state government; and these will have the same disposition toward the General Government."
^James Madison (January 25, 1788). "The Federalist". Independent Journal (44 (quote: 8th para)). Retrieved 2009-10-27. "seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion."
^James Madison (February 16, 1788). "The Federalist No. 56 (quote: 6th para)". Independent Journal. Retrieved 2009-10-27. "In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act."
^Alexander Hamilton (December 14, 1787). "The Federalist No. 22 (quote: 4th para)". New York Packet. Retrieved 2009-10-27. "The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy."
^Madison (January 22, 1788). "Federalist Papers". New York Packet. Retrieved 2009-10-27. "The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits."
^Akhil Reed Amar (1998). "The Bill of Rights – Creation and Reconstruction". New York Times: Books. Retrieved 2009-10-24. "many lawyers embrace a tradition that views state governments as the quintessential threat to individual and minority rights, and federal officials—especially federal courts—as the special guardians of those rights."
^Scott Gold (June 14, 2005). "Justices Swat Down Texans' Effort to Weaken Species Protection Law". Los Angeles Times. Retrieved 2012-03-24. "Purcell filed a $60-million lawsuit against the U.S. government in 1999, arguing that cave bugs could not be regulated through the commerce clause because they had no commercial value and did not cross state lines. 'I'm disappointed,' Purcell said."
^FDCH e-Media (January 10, 2006). "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court". Washington Post. Retrieved 2009-10-30. "I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place – Samuel Alito"
^Jacob C. Hornberger (October 30, 2009). "Freedom and the Fourteenth Amendment". The Future of Freedom Foundation. Retrieved 2009-10-30. "Fourteenth Amendment. Some argue that it is detrimental to the cause of freedom because it expands the power of the federal government. Others contend that the amendment expands the ambit of individual liberty. I fall among those who believe that the Fourteenth Amendment has been a positive force for freedom."
^CQ Transcriptions (Senator Kohl) (July 14, 2009). "Key Excerpt: Sotomayor on Bush v. Gore". Washington Post. Retrieved 2009-10-23. "Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute""
^Adam Cohen (Opinion section) (March 21, 2004). "Justice Rehnquist Writes on Hayes vs. Tilden, With His Mind on Bush v. Gore". New York Times. Retrieved 2009-10-23. "The Bush v. Gore majority, made up of Mr. Rehnquist and his fellow conservatives, interpreted the equal protection clause in a sweeping way they had not before, and have not since. And they stated that the interpretation was 'limited to the present circumstances,' words that suggest a raw exercise of power, not legal analysis."[dead link]
^David Margolick (September 23, 2007). "Meet the Supremes". New York Times. Retrieved 2009-10-23. "Beat reporters and academics initially denounced the court's involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted."
^David G. Savage (July 13, 2008). "Supreme Court finds history is a matter of opinions". Los Angeles Times. Retrieved 2009-10-30. "This suggests that the right of habeas corpus was not limited to English subjects ... protects people who are captured ... at Guantanamo ... Wrong, Justice Antonin Scalia wrote in dissent. He said English history showed that the writ of habeas corpus was limited to sovereign English territory"
^James Vicini (April 24, 2008). "Justice Scalia defends Bush v. Gore ruling". Reuters. Retrieved 2009-10-23. "The nine-member Supreme Court conducts its deliberations in secret and the justices traditionally won't discuss pending cases in public"
^See also Arthur D. Hellman, "Reining in the Supreme Court: Are Term Limits the Answer?", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 291.
^Richard Epstein, "Mandatory Retirement for Supreme Court Justices", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 415.
^Alexander Hamilton (June 14, 1788). "The Federalist No. 78". Independent Journal. Retrieved 2009-10-28. "and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."
Encyclopedia of the Supreme Court of the United States, 5 vols., Detroit [etc.] : Macmillan Reference USA, 2008