Supreme Court of the United States

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The Supreme Court of the United States (SCOTUS) is the highest judicial body in the United States and leads the judicial branch of the United States federal government.

The court consists of nine Justices: the Chief Justice of the United States and eight Associate Justices. The Justices are nominated by the President and confirmed with the "advice and consent" of the Senate. As federal judges, the Justices serve during "good behavior", meaning they essentially serve for life and can be removed only by resignation, or by impeachment and subsequent conviction.

The Supreme Court is the only court established by the United States Constitution (in Article III); all other federal courts are created by Congress:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The Supreme Court holds both original and appellate jurisdiction, with its appellate jurisdiction accounting for most of the Court's caseload. The court's original jurisdiction is narrowly focused, as defined in Article III, Section 2 ("In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction"). The court's appellate jurisdiction encompasses "all cases" within the scope of Article III, but is subject to limitation by acts of Congress under the Exceptions Clause in Article III and by the discretion of the Court.

The Supreme Court meets in Washington, D.C., in the United States Supreme Court building. The Court is sometimes referred to by the abbreviations SCOTUS (Supreme Court of the United States) and USSC (United States Supreme Court). The Court's yearly terms usually start on the first Monday in October and finish sometime during the following June or July. Each term consists of alternating two week intervals. During the first interval, the court is in session ('sitting') and hears cases, and during the second interval, the court is recessed to consider and write opinions on cases it has heard.

Contents

[edit] History

Main article: History of the Supreme Court of the United States

The history of the Supreme Court is frequently described in terms of the Chief Justices who have presided over it.

Initially, during the tenures of Chief Justices Jay, Rutledge, and Ellsworth (1789–1801), the Court lacked a home of its own and any real prestige.

That changed during the Marshall Court (1801–1835), which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison), and made a number of important rulings which gave shape and substance to the constitutional balance of power between the federal government (referred to at the time as the "general" government) and the states. In Martin v. Hunter's Lessee, the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts. Both Marbury and Martin confirmed that the Supreme Court was the body entrusted with maintaining the consistent and orderly development of federal law.

The Marshall Court ended the practice of each judge issuing his opinion seriatim, a remnant of British tradition, and instead one majority opinion of the Court was issued. The Marshall Court also saw Congress impeach a sitting Justice, Samuel Chase, who was acquitted. This impeachment was one piece of the power struggle between the Jeffersonians and the Federalists after the election of 1800 and the subsequent change in power. The failure to remove Chase is thought to signal the recognition by Congress of judicial independence.

The Taney Court (1836–1864) made a number of important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. However, it is primarily remembered for its ruling in Dred Scott v. Sandford, the case which may have helped precipitate the Civil War. In the years following the Civil War, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution, and developed the doctrine of substantive due process (Lochner v. New York; Adair v. United States).

Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children's Hospital), and the Court held that the Fourteenth Amentment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.

During the Hughes, Stone, and Vinson Courts (1930–1953), the court gained its own accommodation and radically changed its interpretation of the Constitution in order to facilitate the New Deal (West Coast Hotel Co. v. Parrish), giving an expansive reading to the powers of the Federal Government.

The Warren Court (1953–1969) made a number of alternately celebrated and controversial rulings expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process. It held that:

  1. segregation was unconstitutional (Brown v. Board of Education);
  2. the Constitution protects a general right to privacy (Griswold v. Connecticut);
  3. schools cannot have official prayer (Engel v. Vitale), or mandatory Bible readings (Abington School District v. Schempp);
  4. many guarantees of the Bill of Rights apply to the states (e.g., Mapp v. Ohio, Miranda v. Arizona);
  5. an equal protection clause was contained in the Fifth Amendment (Bolling v. Sharpe); and
  6. the Constitution grants the right of retaining a court appointed attorney for those too indigent to pay for one (Gideon v. Wainwright).

The Burger Court (1969–1986) ruled that abortion was a constitutional right (Roe v. Wade), reached muddled and controversial rulings on affirmative action (Regents of the University of California v. Bakke) and campaign finance regulation (Buckley v. Valeo), and held that the death penalty was unconstitutional (Furman v. Georgia) and then later that it was not unconstitutional (Gregg v. Georgia).

The Rehnquist Court (1986–2005) narrowed the focus of the private right of action, the right of labor unions to picket (Lechmere Inc. v. NLRB) and of Roe v. Wade (Planned Parenthood v. Casey) but dramatically circumscribed the ability of states to regulate abortion (Stenberg v. Carhart), gave sweeping meaning to ERISA pre-emption (Shaw v. Delta Air Lines, Inc.; Egelhoff v. Egelhoff), thereby denying plaintiffs access to state court with the consequence of limiting compensation for torts like harm to medical patients covered by employer plans to very circumscribed remedies (Aetna Health Inc. v. Davila; CIGNA Healthcare of Texas Inc. v. Calad) and began an instauration of federalism, limiting the scope of Congressional power under the Commerce Clause (United States v. Lopez; United States v. Morrison).

The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John Roberts on September 29, 2005, and is the currently presiding court.

[edit] Composition

[edit] Size of the court

The Justices of the Supreme Court of the United States as of 2007. Top row (left to right): Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg, and Samuel A. Alito. Bottom row (left to right): Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, and David H. Souter.
The Justices of the Supreme Court of the United States as of 2007. Top row (left to right): Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg, and Samuel A. Alito. Bottom row (left to right): Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, and David H. Souter.

The United States Constitution does not specify the size of the Supreme Court; instead, Congress has the power to fix the number of Justices. Originally, the total number of Justices was set at six by the Judiciary Act of 1789. As the country grew geographically, the number of Justices steadily increased to correspond with the growing number of judicial circuits. The court was expanded to seven members in 1807, nine in 1837 and ten in 1863. In 1866, however, Congress wished to deny President Andrew Johnson any Supreme Court appointments, and therefore passed the Judicial Circuits Act, which provided that the next three Justices to retire would not be replaced; thus, the size of the Court would eventually reach seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. By the Circuit Judges Act of 1869, the number of Justices was again set at nine (the Chief Justice and eight Associate Justices), where it has remained ever since. President Franklin D. Roosevelt attempted to expand the Court (see Judiciary Reorganization Bill of 1937); his plan would have allowed the President to appoint one new, additional justice for every justice who reached the age of seventy but did not retire from the bench, until the Court reached a maximum size of fifteen justices. Ostensibly, this was to ease the burdens of the docket on the elderly judges, but it was widely believed that the President's actual purpose was to add Justices who would favor his New Deal policies, which had been regularly ruled unconstitutional by the Court. This plan, referred to often as the Court Packing Plan, failed in Congress. The Court, however, moved from its opposition to Roosevelt's New Deal programs, rendering the President's effort moot. In any case, Roosevelt's long tenure in the White House allowed him to appoint eight Justices to the Supreme Court and promote one Associate Justice to Chief Justice.

[edit] Nomination, confirmation and tenure of Justices

Article II of the Constitution provides the power to appoint Justices belongs to the President, acting with the "advice and consent" of the Senate. As a general rule, Presidents nominate individuals who broadly share their ideological views. However, nominees whose views are perceived as extreme may be blocked by the Senate (see List of Failed Nominations to the Supreme Court of the United States). In many cases, a Justice's decisions may be contrary to what the nominating President anticipated. A famous instance was Chief Justice Earl Warren; President Eisenhower expected him to be a conservative judge, but his decisions are arguably among the most liberal in the Court's history. Eisenhower later called the appointment "the biggest damn fool mistake I ever made."[1] Because the Constitution does not set forth any qualifications for service as a Justice, the President may nominate anyone to serve. However, that person must receive the confirmation of the Senate, meaning that a majority of that body must find that person to be a suitable candidate for a lifetime appointment on the nation's highest court. In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on how that nominee's track record compares with the group's political orientation. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. At the close of confirmation hearings, the Committee membership vote on whether or not the nominee is qualified to be confirmed before the entire Senate. If the Committee votes to recommend that the nomination be confirmed, it proceeds to the full Senate. Alternatively, if a majority of the membership disapprove of the nomination but still believe it should be considered by the full Senate, they can advance the nomination with an adverse report.

The practice of the nominee being questioned by the Committee is relatively recent. The first nominee to testify before the Committee was Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Committee was Felix Frankfurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him. The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.[2]

If the committee reports out the nomination, the whole Senate considers it; a simple majority vote is required to confirm or to reject a nominee. Rejections are relatively uncommon; the Senate has explicitly rejected only twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork. In 1991, Clarence Thomas's nomination was hampered by allegations of sexual harassment by a former colleague, but the Senate eventually confirmed him by a slim majority vote of 52-48.

Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate thereby preventing a final vote on the nominee. It is also possible for the President to withdraw a nominee's name at any time before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed. Most recently, President George W. Bush granted a request by Harriet Miers to withdraw her 2005 nomination even before a committee hearing had been scheduled, citing Miers's concerns about Senate requests during her confirmation process for access to internal Executive Branch documents resulting from her position as White House Counsel. Prior to that, President Ronald Reagan in 1987 withdrew the name of Douglas H. Ginsburg soon after the announcement of his nomination because of allegations of marijuana use.

While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.

Until the 1980s, the approval process of Justices was frequently quick. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration through the current administration of George W. Bush, however, the process took much longer. Some speculate this is because of the increasingly political role Justices are said to play. [1]

When the Senate is in recess, the President may make a temporary appointment without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years). To continue to serve thereafter and be compensated for his or her service, the nominee must be confirmed by the Senate. Of the two Chief Justices and six Associate Justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed for a full term. No president since Dwight Eisenhower has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts.

The Constitution provides that Justices "shall hold their Offices during good Behavior" (unless appointed during a Senate recess). The term "good behavior" is interpreted to mean that the Justice may serve for the remainder of his or her life. However, Justices may resign, retire, or be removed by impeachment and conviction by congressional vote. Because Justices have life tenure, it is impossible to predict when a vacancy will next occur. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Powell and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other due to health problems and died shortly thereafter. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the death of Chief Justice Rehnquist in 2005.

[edit] Other functions

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, however, encountered opposition from many Justices, who complained about the difficulty of travel. Moreover, several individuals opposed it on the grounds that 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 duties of a "Circuit Justice" are generally limited to receiving and deciding requests for stays in cases coming from the circuit or circuits to which the Justice is assigned, and other clerical tasks such as addressing certain requests for extensions of time. A Circuit Justice may, but in practice almost never does, sit as a judge of that circuit; when he or she does, however, a Circuit Justice has seniority over the Chief Judge of that circuit.

The Chief Justice is traditionally assigned to the District of Columbia Circuit, the Federal Circuit and the Fourth Circuit, which includes Maryland and Virginia, the states surrounding the District of Columbia. Each Associate Justice is assigned to one or two judicial circuits.

After Associate Justice Alito's appointment, circuits were assigned as follows[2]:

The circuit assignments frequently, but do not always and need not, reflect the geographic regions where the assigned Justices served as judges or practitioners before joining the Supreme Court. Four of the current Justices are assigned to circuits on which they once sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Souter (First Circuit), Justice Stevens (Seventh Circuit), and Justice Kennedy (Ninth Circuit). Furthermore, Justices Thomas and Ginsburg are assigned to the circuits that include their home states (the Eleventh and Second Circuits, respectively).

[edit] Current membership

The current Justices of the United States Supreme Court, in order of seniority, are:

Name Photo Date of birth Age Home state Appt. by Conf. vote First day Prior positions
John Roberts (Chief Justice) Roberts January 27, 1955 52 Maryland G.W. Bush 78-22 September 29, 2005 Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice (1993–2003); Principal Deputy Solicitor General (1989–1993); Private practice (1986–1989); Associate Counsel to the President (1982–1986); Special Assistant to the Attorney General (1981–1982)
John Paul Stevens Steven April 20, 1920 86 Illinois Ford 98-0 December 19, 1975 Circuit Judge, Court of Appeals for the Seventh Circuit (1970–1975); Private practice (1948–1970); Lecturer, University of Chicago Law School (1950–1954); Lecturer, Northwestern University School of Law (1954–1958)
Antonin Scalia Scalia March 11, 1936 71 Virginia Reagan 98-0 September 26, 1986 Circuit Judge, Court of Appeals for the D.C. Circuit (1982–1986); Professor, University of Chicago Law School (1977–1982); Assistant Attorney General (1974–1977); Professor, University of Virginia School of Law (1967–1974)
Anthony Kennedy Kennedy July 23, 1936 70 California Reagan 97-0 February 18, 1988 Circuit Judge, Court of Appeals for the Ninth Circuit (1975–1988); Professor, McGeorge School of Law, University of the Pacific (1965–1988); Private practice (1963–1975)
David Souter Souter September 17, 1939 67 New Hampshire G.H.W. Bush 90-9 October 9, 1990 Circuit Judge, Court of Appeals for the First Circuit (1990–1990); Associate Justice, New Hampshire Supreme Court (1983–1990); Associate Justice, New Hampshire Superior Court (1978–1983); Attorney General of New Hampshire (1976–1978); Deputy Attorney General of New Hampshire (1971–1976); Assistant Attorney General of New Hampshire (1968–1971); Private practice (1966–1968).
Clarence Thomas Thomas June 23, 1948 58 Georgia G.H.W. Bush 52-48 October 23, 1991 Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991); Chairman, Equal Employment Opportunity Commission (1982–1990); Legislative Assistant for Missouri Senator John Danforth (1979–1981); employed by Monsanto Inc. (1977– 1979); Assistant Attorney General of Missouri under State Attorney General John Danforth (1974–1977)
Ruth Bader Ginsburg Ginsburg March 15, 1933 74 New York Clinton 97-3 August 10, 1993 Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993); General Counsel, American Civil Liberties Union (1973–1980); Professor, Columbia Law School (1972–1980); Professor, Rutgers University School of Law (1963–1972)
Stephen Breyer Breyer August 15, 1938 68 Mass. Clinton 87-9 August 3, 1994 Chief Judge, Court of Appeals for the First Circuit (1990–1994); Circuit Judge, Court of Appeals for the First Circuit (1980–1990); Professor, Harvard Law School (1967–1980)
Samuel Alito Alito April 1, 1950 57 New Jersey G.W. Bush 58-42 January 31, 2006 Circuit Judge, Court of Appeals for the Third Circuit (1990–2006); Professor, Seton Hall University School of Law (1999–2004); U.S. Attorney for the District of New Jersey (1987–1990); Deputy Assistant Attorney General (1985–1987); Assistant to the Solicitor General (1981–1985); Assistant U.S. Attorney for the District of New Jersey (1977–1981)

As of 2006, the average age of the U.S. Supreme Court justices is 66 years. See also Demographics of the Supreme Court of the United States.

[edit] Retired justices

Research suggests that justices are often strategic in their decisions to leave the bench with personal, institutional, and partisan factors playing a role. The fear of mental decline and death often precludes justices from stepping 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, if at all possible, justices seek to depart under favorable presidents and Senates to ensure that a like-minded successor will be appointed.

Currently, there is only one retired Justice of the Supreme Court, Sandra Day O'Connor, who announced her intent to retire in 2005 and was replaced by Samuel Alito in 2006.

[edit] Seniority and seating

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 when looking at the bench from the perspective of a lawyer arguing before the Court: Breyer, Thomas, Kennedy, Stevens (most senior Associate Justice), Roberts (Chief Justice), Scalia, Souter, Ginsburg and Alito (most junior Associate Justice).

[edit] Political leanings

Seven of the current justices of the court were appointed by Republican Presidents, while two were nominated by a Democrat. While no justice has a stated political affiliation nor backs a specific party, it is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court's conservative wing. Justices Stevens, Souter, Ginsburg and Breyer are generally thought of as the Court's liberal wing. Justice Kennedy is considered to be a moderate conservative, and the justice who is most likely to be the swing vote that determines the outcome of certain close cases.

[edit] Quarters

U.S. Supreme Court building.
U.S. Supreme Court building.
Main article: United States Supreme Court building

The Supreme Court occupied various spaces in the United States Capitol until 1935, when it moved into its own purpose-built home at One First Street Northeast, Washington, DC. The four-story building was designed in a classical style sympathetic to the surrounding buildings of the Capitol complex and Library of Congress by architect Cass Gilbert, and is clad in marble quarried chiefly in Vermont. The building includes space for the Courtroom, Justices' chambers, an extensive law library, various meeting spaces, and auxiliary services such as workshop, stores, cafeteria and 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.

[edit] Jurisdiction

Main article: Procedures of the Supreme Court of the United States

Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:

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, which forbade the 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, the Eleventh Amendment is not deemed to apply if a state consents to be sued (see Sovereign immunity). Moreover, the Supreme Court has ruled that Congress may abrogate the states' immunity from lawsuits in certain circumstances. In addition to constitutional constraints, the jurisdiction of the federal courts is also limited by various federal laws. For example, the federal courts may consider "Controversies ... between Citizens of different states only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts.

Further information: diversity jurisdiction

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 Supreme Court has only appellate jurisdiction. The Supreme Court 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 a variety of devices that permit so-called "collateral review" of state cases.

Because, under Article III, federal courts may only entertain "cases" or "controversies", the 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 herself 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 to appeal a case through the lower courts to the Supreme Court than the typical human gestation period.

[edit] How a case moves through the Court

The vast majority of 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".[3] 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 statuory or constitutional law.[4] The party that lost in the lower court is called the petitioner, and the party that prevailed is called 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.

The common shorthand name for cases is typically the first party -- for example, Brown v. Board of Education is referred to simply as "Brown", and Roe v. Wade is referred to simply as "Roe". The exception to this rule is when the name of a state, or the United States, or some governmental 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, is the U.S. 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 is not permitted to attend, and neither are the Justices' law clerks. If four Justices vote to grant the petition, then 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 certiorari only for "compelling reasons." Such reasons include, without limitation, to resolve a conflict in the interpretation of a federal law or a provision of the federal constitution, to correct an egregious departure from the accepted and usual course of judicial proceedings, to resolve 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, the Court employs an internal case management tool known as the "cert pool". Out of the more than 7,000 petitions the Court receives each year, it will ask for briefing and hear oral argument in 100 or fewer. To assist the Justices in deciding how to vote at the conference, one law clerk from one of the chambers will prepare a memorandum summarizing the history of the case and making a recommendation about whether the Court should, consistent with its guidelines for doing so, grant the cert petition and order further briefing. Of the current Members of the Court, all but Justice Stevens participate in the cert pool. The advantage to the cert pool is that all the Justices can shoulder the burden of the Court's principal responsibility -- ensuring the consistent development of federal law. However, there are two main drawbacks. First, the people doing the scrutiny are not the Justices themselves but their law clerks, relatively young lawyers whose only legal experience typically consists of one previous year of clerking for another appellate judge. Second, because eight of the nine Justices participate in the pool, only two views of the case -- the view of a Stevens clerk and the view of a clerk from the pool -- are before the Justices at the conference.

When the Court grants a cert petition, the case is set for oral argument. At this point, both parties file briefs on the merits of the case, as distinct from reasons the parties may urge for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has half an hour to present its argument, and during that time the Justices can and do interrupt the advocate and ask questions of their own. The petitioner goes first, 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.

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.

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, a number of 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 may cite this set of reporters -- 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.

At present there are 545 volumes of U.S. Reports. Lawyers use an abbreviated format to cite cases, in the form xxx U.S. xxx (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, if a lawyer wanted to cite Roe v. Wade, decided in 1973, and which appears on page 113 of volume 410 of U.S. Reports, he would write 410 U.S. 113 (1973).

[edit] Checks and balances

The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of the Supreme 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 writes: "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.

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 quotation is likely apocryphal. State militia 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 Richard 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.

The Constitution provides that the salary of a Justice may not be diminished during his or her continuance in office. This clause was intended to prevent Congress from punishing Justices for their decisions by reducing their emoluments. Together with the provision that Justices hold office for good behavior, this clause helps guarantee judicial independence. However, as seen above, the President's practice of appointing justices with similar real, perceived or expected ideology can be seen to compromise judicial independence.

[edit] Quotes about arguing before the Supreme Court

  • "I had never before argued a Supreme Court case on my own. Since arguments in that court are thirty minutes in length per side, and since most of the time consumed in argument is taken up with responses to questions of the Court, Dean [Ringel] and I devoted most of our preparation to three overlapping issues, ones that have consumed my attention in every later Supreme Court argument as well. The first was jurisprudential in nature. What rule of law were we urging the Court to adopt? How would it apply in any future case? What would be its impact on First Amendment legal doctrine?" --Floyd Abrams, discussing his argument before the Court in Landmark Communications v. Virginia.[5]

[edit] See also

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[edit] References

  1. ^ Todd S., Purdum. "Presidents, Picking Justices, Can Have Backfires", Courts in Transition: Nominees and History, New York Times, July 5, 2005, p. A4. Retrieved on April 24, 2006.
  2. ^ United States Senate. "Nominations"
  3. ^ 28 U.S.C. § 1254
  4. ^ 28 U.S.C. § 1257
  5. ^ Quoted in the book by Floyd Abrams, Speaking Freely (2005), p. 65.

[edit] Suggested reading

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