Supreme Court of the United States

Supreme Court of the United States Established 1789 Jurisdiction United States Location Washington, D.C. Composition method Presidential nomination with Senate confirmation Authorized by U.S. Constitution Judge term length Life tenure Number of positions 9, by statute Website supremecourt.gov Chief Justice of the United States Currently John G. Roberts Since September 29, 2005

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The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" (majority vote) of the Senate. Once appointed, Justices effectively have life tenure, serving "during good Behaviour",^[1] which terminates only upon death, resignation, retirement, or conviction on impeachment.^[2] The Court meets in Washington, D.C. in the United States Supreme Court Building. The Supreme Court is primarily an appellate court, but it has original jurisdiction over a small range of cases.^[3] The Supreme Court is sometimes informally referred to as the High Court, or by the acronym SCOTUS.

History

Eras of the history of the Supreme Court are named after the Chief Justice of that time.

The earliest Courts under Chief Justices Jay, Rutledge, and Ellsworth (1789–1801) heard few cases, and the Supreme Court's first decision was West v. Barnes (1791), a case involving a procedural issue.^[4] Further, the Court initially lacked a home of its own and any real prestige.^[5]

The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia's City Hall.

That changed during the Marshall Court (1801–1835),^[6] which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison)^[7][8] and made several important rulings which gave shape and substance to the constitutional balance of power between the federal government and the states.^[9] In Martin v. Hunter's Lessee,^[10] the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts.^[11][12] Both Marbury and Martin confirmed that the Court was entrusted with maintaining the consistent and orderly development of federal law.

The Marshall Court ended the practice of each judge issuing his opinion seriatim,^[13] a remnant of British tradition,^[14] and instead began issuing a single majority opinion.^[13] Justice Samuel Chase was impeached by Congress^[15] within a greater power struggle between the Democratic-Republicans and the Federalists after the transition of power following the election of 1800. Chase's 1805 acquittal by the Senate has been cited as recognition by Congress of the principle of judicial independence.^[16]

The Taney Court (1836–1864) made several 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.^[17] The Taney Court is primarily remembered for its ruling in Dred Scott v. Sandford,^[18] the case which may have helped precipitate the Civil War.^[19] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution,^[12] and developed the doctrine of substantive due process (Lochner v. New York;^[20] Adair v. United States).^[21]

Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children's Hospital),^[22] and the Court held that the Fourteenth Amendment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.^[23]

During the Hughes, Stone, and Vinson Courts (1930–1953), the court gained its own accommodation in 1935^[24] and changed its interpretation of the Constitution in order to facilitate Franklin Roosevelt's New Deal (West Coast Hotel Co. v. Parrish,^[25] Wickard v. Filburn),^[26] giving a broader reading to the powers of the Federal Government.^[27]

The Warren Court (1953–1969) made many rulings, sometimes celebrated, sometimes controversial, expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process.^[28] It held segregation in public schools unconstitutional (Brown v. Board of Education);^[29] that the Constitution protects a general right to privacy (Griswold v. Connecticut);^[30] that public schools cannot have official prayer (Engel v. Vitale)^[31] or mandatory Bible readings (Abington School District v. Schempp);^[32] that many guarantees of the Bill of Rights apply to the states (e.g., Mapp v. Ohio,^[33] Miranda v. Arizona);^[34] found an equal protection clause is contained in the Fifth Amendment (Bolling v. Sharpe);^[35] and that the Constitution grants the right to a court-appointed attorney^[36] for those unable to afford one (Gideon v. Wainwright).^[36]

The Burger Court (1969–1986) ruled the Constitution protected a woman's right to privacy and control over her own body, thus striking down outright abortion bans (Roe v. Wade),^[37] reached controversial rulings on affirmative action (Regents of the University of California v. Bakke)^[38] and campaign finance regulation (Buckley v. Valeo);^[39] ruled the methods several states employed to implement the death penalty unconstitutional (Furman v. Georgia);^[40] but also held the death penalty itself was not unconstitutional (Gregg v. Georgia).^[40][41][42]

The Rehnquist Court (1986–2005) was noted for its revival of the concept of federalism,^[43] which included restrictions on Congressional power under both the Commerce Clause (United States v. Lopez,^[44] United States v. Morrison)^[45] and the fifth section of the Fourteenth Amendment (City of Boerne v. Flores),^[46] as well as strengthening state sovereign immunity (Seminole Tribe v. Florida,^[47] Alden v. Maine).^[48] It was also noted for its 5 to 4 decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000 and led to the presidency of George W. Bush.^[49] In addition, the Rehnquist court decriminalized homosexual sex (Lawrence v. Texas);^[50] narrowed the right of labor union organizers to enter an employer's property (Lechmere Inc. v. NLRB);^[51] altered the Roe v. Wade framework for assessing abortion regulations (Planned Parenthood v. Casey);^[52] and gave sweeping meaning to ERISA pre-emption (Shaw v. Delta Air Lines, Inc.,^[53] Egelhoff v. Egelhoff),^[54] thereby denying plaintiffs access to state courts with the consequence of limiting compensation for torts to very circumscribed remedies (Aetna Health Inc. v. Davila,^[55] CIGNA Healthcare of Texas Inc. v. Calad);^[55] affirmed the power of Congress to extend the term of copyright (Eldred v. Ashcroft);^[56] and expanded the government's power of eminent domain (Kelo v. City of New London).^[57]

The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John G. Roberts on September 29, 2005, and is the current presiding court.^[58] The Roberts Court is seen as more conservative than the previous court.^[59] Some of the major rulings so far have been in the areas of abortion (Ayotte v. Planned Parenthood,^[60] Gonzales v. Carhart);^[61] anti-trust legislation (Leegin Creative Leather Products, Inc. v. PSKS, Inc.);^[62] the death penalty (Baze v. Rees,^[63] Kennedy v. Louisiana);^[64] the Fourth Amendment (Hudson v. Michigan);^[65] free speech of government employees and of high school students (Garcetti v. Ceballos,^[66] Morse v. Frederick);^[67] military detainees (Hamdan v. Rumsfeld,^[68] Boumediene v. Bush);^[69] school desegregation (Parents v. Seattle);^[70] voting rights (Crawford v. Marion County Election Board);^[71] the Second Amendment (District of Columbia v. Heller,^[72] McDonald v. Chicago), and campaign finance (Citizens United v. Federal Election Commission).^[73]

Composition

Size of the Court

The United States Constitution does not specify the size of the Supreme Court, but Article III authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices 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.

At the request of Chief Justice Salmon P. Chase, Congress passed the Judicial Circuits Act (1866) which provided that the next three justices to retire would not be replaced; thus, the size of the Court should have eventually reached seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. However, this law did not play out to completion, for in the Judiciary Act of 1869,^[74] also known as the Circuit Judges Act, the number of justices was again set at nine, where it has since remained.

President Franklin D. Roosevelt attempted to expand the Court in 1937, seeking to appoint an additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement; under Roosevelt's proposal, such appointments would continue until the Court reached a maximum size of 15 justices. Ostensibly, the proposal was made to ease the burdens of the docket on the elderly judges, but the President's actual purpose was to pack the Court with justices who would support New Deal policies and legislation.^[75] This plan, usually called the "Court-packing Plan", failed in Congress and proved a political disaster for Roosevelt.^[76] The balance of the Court shifted with the retirement of Willis Van Devanter and the confirmation of Hugo Black in August 1937. By the end of 1941, Roosevelt had appointed seven Supreme Court justices and elevated Harlan Fiske Stone to Chief Justice.^[77]

Appointment and confirmation

Article Two of the United States Constitution gives the President power to appoint 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 what the nominating President anticipated. Because the Constitution does not set any qualifications for service as a justice, the President may nominate anyone to serve. However, that person must receive Senate confirmation.

The Roberts Court, 2009
Front row: Associate Justices Anthony M. Kennedy, John Paul Stevens, Chief Justice John G. Roberts, Antonin G. Scalia, and Clarence Thomas.
Back row: Associate Justices Samuel A. Alito, Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor

In modern times, the confirmation process has attracted considerable attention from the press, and from advocacy groups, which lobby senators to confirm or to reject a nominee, depending on whether the nominee's 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. However, the modern practice of questioning began with John Marshall Harlan II in 1955.^[78] A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected 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.

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, preventing a final vote on the nominee. 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. The President may also withdraw a nominee's name 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 withdrew his nomination of Harriet Miers before Committee hearings had begun.

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.^[79]

Once the Senate confirms the nomination by an affirmative vote, the President must prepare and sign a commission, and have the Seal of the Department of Justice affixed to the document before the new justice can take office.^[80] The seniority of an Associate Justice is based on the date of commissioning, not the date of confirmation or swearing-in.^[81]

Recess appointments

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 Senate must confirm the nominee. 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 regular appointment. No president since Dwight Eisenhower (who made three such appointments) has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts.

In 1960 the Senate passed a resolution stating that it was the sense of the Senate that recess appointments to the Supreme Court should not be made except under unusual circumstances.^[82] Being a resolution, it has no legally binding effect, but was intended as an expression of the position of the Senate and as a guide to executive actions. The resolution passed by a vote of 48 to 37, mainly along party lines.^{[82] [83]}

Tenure

The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is well understood to mean justices may serve for the remainder of their lives, although they can voluntarily resign or retire. A justice can also be removed by Congressional impeachment and conviction. However, only one justice has been impeached by the House (Samuel Chase, in 1805) and he was acquitted in the Senate. 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 have not reached a vote in the House. No mechanism presently exists for removing a justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.^[84]

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 H. 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 and the departures of Chief Justice Rehnquist and Justice Sandra Day O'Connor (by death and retirement, respectively) in 2005 and 2006.

Despite the variability, all but four Presidents have been able to appoint at least one justice. President William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. President Zachary Taylor likewise died early in his presidential term, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. President Andrew Johnson was denied the opportunity to appoint a justice by a contraction in the size of the Court (see Size of the Court above). President Jimmy Carter is the only President who completed at least one full term in office without making a nomination to the Court during his presidency.

Three presidents have appointed justices who collectively served more than 100 years: Franklin D. Roosevelt, Andrew Jackson and Abraham Lincoln.^[85]

Supreme Court membership

Current justices

Name	Born	Appt. by	Senate conf. vote	Age at appt.	First day / Length of service	Prior positions
Roberts, John G.John G. Roberts (Chief Justice)	01955-01-27 January 27, 1955 (age &000000000000005600000056) in Buffalo, New York	Bush, George W.George W. Bush	78–22	50	02005-09-29 September 29, 2005 5 years, 4 months	Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice (1993–2003); Professor, Georgetown University Law Center (1992–2005); 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)
Scalia, AntoninAntonin Scalia	01936-03-11 March 11, 1936 (age &000000000000007400000074) in Trenton, New Jersey	Reagan, RonaldRonald Reagan	98–0	50	01986-09-26 September 26, 1986 24 years, 4 months	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); Private practice (1961–1967)
Kennedy, AnthonyAnthony Kennedy	01936-07-23 July 23, 1936 (age &000000000000007400000074) in Sacramento, California	Reagan, RonaldRonald Reagan	97–0	51	01988-02-18 February 18, 1988 22 years	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)
Thomas, ClarenceClarence Thomas	01948-06-23 June 23, 1948 (age &000000000000006200000062) in Pin Point, Georgia	Bush, George H. W.George H. W. Bush	52–48	43	01991-10-23 October 23, 1991 19 years, 3 months	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 Company Inc. (1977–1979); Assistant Attorney General in Missouri under State Attorney General John Danforth (1974–1977)
Ginsburg, Ruth BaderRuth Bader Ginsburg	01933-03-15 March 15, 1933 (age &000000000000007700000077) in New York City, New York	Clinton, BillBill Clinton	96–3	60	01993-08-10 August 10, 1993 17 years, 6 months	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)
Breyer, StephenStephen Breyer	01938-08-15 August 15, 1938 (age &000000000000007200000072) in San Francisco, California	Clinton, BillBill Clinton	87–9	56	01994-08-03 August 3, 1994 16 years, 6 months	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)
Alito, SamuelSamuel Alito	01950-04-01 April 1, 1950 (age &000000000000006000000060) in Trenton, New Jersey	Bush, George W.George W. Bush	58–42	56	02006-01-31 January 31, 2006 5 years	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)
Sotomayor, SoniaSonia Sotomayor	01954-06-25 June 25, 1954 (age &000000000000005600000056) in New York City, New York	Obama, BarackBarack Obama	68–31	55	02009-08-08 August 8, 2009 1 year, 6 months	Circuit Judge, Court of Appeals for the Second Circuit (1998–2009); District Judge, District Court for the Southern District of New York (1992–1998); Private practice (1984–1991); Assistant District Attorney, New York County, New York (1979–1984)
Kagan, ElenaElena Kagan	01960-04-28 April 28, 1960 (age &000000000000005000000050) in New York City, New York	Obama, BarackBarack Obama	63–37	50	02010-08-07 August 7, 2010 6 months	Solicitor General of the United States (2009–2010); Dean of Harvard Law School (2003–2009); Professor, Harvard Law School (2001–2003); Visiting Professor, Harvard Law School (1999–2001); Associate White House Counsel (1995–1999); Deputy Director of the Domestic Policy Council (1995–1999); Professor, University of Chicago Law School (1995); Associate Professor, University of Chicago Law School (1991–1995)

Court demographics

Historically, the Court was primarily composed of White male Protestants.^[86] The first Roman Catholic appointed to the Court was Roger Taney in 1836, with the second (Edward Douglass White) appointed in 1898. Prior to the twentieth century and the civil rights movement, concerns about diversity in government were mainly geographic, to represent all regions of the country, as opposed to ethnic, religious, or gender diversity.^[87] The 20th century saw the first appointment of a Jewish justice (Louis Brandeis, 1916), the first two appointments of African-Americans (Thurgood Marshall, 1967; and his successor Clarence Thomas, 1991), and the first appointment of a woman (Sandra Day O'Connor, 1981), while the 21st century saw the appointment of the first Latino justice (Sonia Sotomayor, 2009). 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. After O'Connor's retirement in 2006, Ginsburg was joined by Sotomayor, named to the Court by Barack Obama; a year later, Obama also appointed Elena Kagan. All justices were Caucasians of European heritage until the 1967 appointment of Marshall.

In terms of religion, most justices have been Protestants, including thirty-five Episcopalians, nineteen Presbyterians, ten Unitarians, five Methodists, and three Baptists.^[88] Following the retirement of Justice John Paul Stevens, the Court is without a Protestant for the first time in its history.^[89]

The Court currently consists of six males and three females; one African-American and eight Caucasians (one of whom is Latino); six Roman Catholics and three Jews. As of February 14, 2011, the average age of the justices is 65 years, 2 months, and the average service length of the justices is 12 years, 6 months.

With the accession of Elena Kagan, all of the justices have an Ivy League background.^[90]

Retired justices

Currently, there are three living retired justices: John Paul Stevens, Sandra Day O'Connor, and David Souter. As retired justices, they may be designated for temporary assignments to sit with several United States Courts of Appeals. Normally, such assignments are made by the Chief Justice; they are analogous to the types of assignments that may be given to judges of lower courts who have selected senior status, although a retired Supreme Court justice never sits as a member of the Supreme Court itself.

Research suggests that justices sometimes strategically plan their decisions to leave the bench, with personal, institutional, and partisan factors playing a role.^[91] 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, if at all possible, justices seek to depart under favorable presidents and Senates to ensure that a like-minded successor will be appointed.

Name	Born	Appt. by	Retired under	Conf. vote	Age at appt.	First day	Date of retirement
John Paul Stevens	01920-04-20 April 20, 1920 (age &000000000000009000000090) in Chicago, Illinois	Gerald Ford	Barack Obama	98–0	55	December 19, 1975	June 29, 2010
Sandra Day O'Connor	01930-03-26 March 26, 1930 (age &000000000000008000000080) in El Paso, Texas	Ronald Reagan	George W. Bush	99–0	51	September 25, 1981	January 31, 2006
David Souter	01939-09-17 September 17, 1939 (age &000000000000007100000071) in Melrose, Massachusetts	George H. W. Bush	Barack Obama	90–9	51	01990-10-09 October 9, 1990	June 29, 2009

Seniority and seating

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 when looking at the bench from the perspective of a lawyer arguing before the Court: Sotomayor, Breyer, Thomas, Scalia (most senior Associate Justice), Roberts (Chief Justice), Kennedy, Ginsburg, Alito, and Kagan. 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 tasked with any menial labor 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.^[92] 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.^[93]

Salary

For the year 2010, an Associate Justice is paid $213,900 and the Chief Justice $223,500.^[94]

Article III of the U.S. Constitution prohibits Congress from reducing the pay for incumbent Supreme Court justices.

Judicial leanings

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, refer to legal outlook rather than a political or legislative one, because Supreme Court justices are not members of the executive or legislative branches.

As of the October 2010 term of the Court, 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 comprise the Court's conservative wing. Justices Ginsburg and Breyer are generally thought of as the Court's liberal wing; after one term on the Court, Justice Sotomayor is also seen as a member of the liberal wing, voting much as her predecessor, Justice Souter, might have voted.^[95][96] John McGinnis, a law professor at Northwestern University School of Law, stated that Sotomayor "appears to be a typical member of the liberal wing," but noted that experts have said justices don't come into their own until they have served five years or so, pointing to Souter's first year as an example;^[96] however, McGinnis also noted that Sotomayor has a longer judicial track record than Souter did. According to statistics compiled by SCOTUSblog, during the 2009 term Sotomayor agreed most often with Ginsburg and Breyer (90% of the time in full, in part, or in judgment, second only to the 92% agreement between Scalia and Thomas), and disagreed most often with Scalia and Alito (31% of the time).^[97] Justice Anthony Kennedy, generally considered a conservative who "occasionally vote[s] with the liberals",^[98] is often the swing vote that determines the outcome of close cases.^[99] Recent appointee Elena Kagan has yet to cast a vote on the Court.

In an article in SCOTUSblog,^[100] Tom Goldstein argues 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% 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 points to several cases that seem to fly against the popular conception of the ideological lines of the Court.^[101][102] Goldstein argues 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 states 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.

Politicization of the Court

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.^[103][104] "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.^[103] David J. Garrow, professor of history at the University of Cambridge, stated that the Court had thus began to mirror the political branches of government. "We are getting a composition of the clerk work force that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists."^[103]

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."^[103]

Facilities

U.S. Supreme Court building.

The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City, which then was the national capital. Philadelphia became the capital city later in 1790, and the Court followed Congress and the President there, meeting briefly in Independence Hall, and then from 1791 to 1800 at Old City Hall at 5th and Chestnut Streets. After Washington, D.C. became the capital in 1800, the Court occupied various spaces in the United States Capitol building 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. However, it maintains its own police force, the Supreme Court Police, separate from the Capitol Police.

On May 3, 2010, the Supreme Court announced that, due mainly to security concerns, the public (including parties to the cases being argued, the attorneys who represent them, and visitors to Oral arguments or the building) would no longer be allowed to enter the building through the main door on top of the iconic steps on the west side.^[105] Visitors must now enter through ground-level doors located at the plaza, leading to a reinforced area for security screening. The main doors at the top of the steps may still be used to exit the building.^[105] Justice Breyer released a statement, joined by Justice Ginsburg, expressing his opinion that although he recognizes the security concerns that led to the decision, he does not believe on balance that the closure is justified.^[106] Calling the decision "dispiriting", he said he was not aware of any Supreme Court in the world that had closed its main entrance to the public.^[106]

Visitors can tour the building on their own, though not the courtroom itself.^[107] The building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays.^[108] It is located behind the United States Capitol at One First Street NE and Maryland Avenue^[108][109] There is a cafeteria, a gift shop, exhibits, and a half-hour informational film.^[107] 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.^[107] When the Court is in session the public may attend oral arguments, which are held twice each morning 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.^[110] Sometimes, there are also afternoon argument sessions.^[108] The number of open seats varies from case to case. For important cases, some visitors arrive the day before and wait through the night. In 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.^[107] Supreme Court Police are available to answer questions.^[108]

Jurisdiction

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.

Section 2 of 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 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: 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.

Exercise of this power (for example, the Detainee Treatment Act, which provided that "'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee")^[111] can become controversial; see Jurisdiction stripping.

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.

Criticism

Some criticisms leveled at the Supreme Court are:

• Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology.^[112] An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts.^[112][113] An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion in part on the basis of the "right to privacy" expressed in the Fourteenth Amendment, a reasoning that some critics argued was circuitous.^[112] Legal scholars,^[114][115] justices,^[116] and presidential candidates^[117] have criticized the Roe decision. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan^[118] and former presidential contender Barry Goldwater.^[119] Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers."^[120] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."^[121] During different historical periods, the Court has leaned in different directions.^[122][123] Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead.^{[124][125][126]} Critics include writers such as Andrew Napolitano,^[127] Phyllis Schlafly,^[128] Mark R. Levin,^[129] and Mark Sutherland,^[130] as well as Pulitzer Prize-winning historian James MacGregor Burns.^[131][132] Past presidents from both parties have attacked judicial activism, including Franklin Roosevelt, Nixon, and Reagan.^[133][134] Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état, – slow-moving and genteel, but a coup d'état nonetheless."^[135] Senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than [the politician] would like."^[136] It has been argued that the Supreme Court is in some respects "certainly a legislative body."^[137]

• 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^[138] and Alexander Hamilton^[139] argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments,^{[140][141][142][143]} others argue that expansive federal power is good and consistent with the Framers' wishes.^[144] 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 to protect non-commercial cave bugs within a state.^[145] 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."^[146] Justice Alito said congressional authority under the Commerce Clause is "quite broad."^[147] Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.^[146] 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 free to serve as laboratories of democracy."^[148] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law."^[149] However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."^[150]

• 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.^{[151][152][153][154][155][156]} 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."^[157]

• Failing to protect individual rights. Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;^[158] Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal;^[159] Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights.^[160][161] A student criticized a 1988 ruling that allowed school officials "to block publication of a student article in the high school newspaper."^[162] 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.^[163] Senator Al Franken criticized the Court for "eroding individual rights."^[136] 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.^[164]

• 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."^[165] It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009.^[166] 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.^[166] 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".^[167] Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."^[168]

• 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.^[169][170]

• Not choosing enough cases to review. Senator Arlen Specter said the Court should "decide more cases."^[136] 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.^[171]

• Secret proceedings. The Court has been criticized for keeping its deliberations hidden from public view.^[172] 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.^[155] 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."^[155] Larry Sabato complains about the Court's "insularity."^[168] However, in recent years, many justices have appeared on television, written books, and made public statements to journalists.^[171][173] 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.^[171]

• Creating a culture of legal intimidation. Critic Philip K. Howard in The Death of Common Sense and Life Without Lawyers criticized the Court for promoting a culture in which "law is wielded as a weapon of intimidation rather than as an instrument of protection."^[174] It leads to "a nation paralyzed by fear, unwilling to assume responsibility, both overly reliant on authority and distrustful of it."^[174] Howard deplores a legal culture in which the "rights" of "whoever might disagree" have trumped common sense.^[175] Specifically, Howard criticized the Earl Warren court for too much "sympathy for the little man."^[176] He criticized the Conley v. Gibson decision for opening "the floodgates to abusive litigation."^[177]

• 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."^[168] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.^[178] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times."^[131] Proposals to solve these problems include term limits for justices, as proposed by Levinson^[179] and Sabato^[168][180] as well as a mandatory retirement age proposed by Richard Epstein.^[181] 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."^[182]

See also

References

Notes

Bibliography

• Encyclopedia of the Supreme Court of the United States, 5 vls. , Detroit [etc.] : Macmillan Reference USA, 2008
• The Rules of the Supreme Court of the United States (2005 ed.) (pdf).
• Biskupic, Joan and Elder Witt. (1997). Congressional Quarterly's Guide to the U.S. Supreme Court. Washington, D.C.: Congressional Quarterly. ISBN 1-56802-130-5
• Hall, Kermit L., ed (1992). The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press. ISBN 0195058356. 
• Harvard Law Review Assn., (2000). The Bluebook: A Uniform System of Citation, 17th ed. [18th ed., 2005. 13-ISBN 978-600-01-4329-9]
• Irons, Peter. (1999). A People's History of the Supreme Court. New York: Viking Press. ISBN 0-670-87006-4.
• Rehnquist, William. (1987). The Supreme Court. New York: Alfred A. Knopf. ISBN 0-375-40943-2.
• Skifos, Catherine Hetos. (1976)."The Supreme Court Gets a Home", Supreme Court Historical Society 1976 Yearbook. [in 1990, re-named The Journal of Supreme Court History (ISSN 1059-4329)]
• Warren, Charles. (1924). The Supreme Court in United States History. (3 volumes). Boston: Little, Brown and Co.
• Woodward, Bob and Armstrong, Scott. The Brethren: Inside the Supreme Court (1979). ISBN 978-0-7432-7402-9.
• Supreme Court Historical Society. "The Court Building" (PDF). http://www.supremecourt.gov/about/courtbuilding.pdf. Retrieved 2008-02-13. 

Further reading

• Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (3rd ed.). New York: Oxford University Press. ISBN 0-19-506557-3. 
• Beard, Charles A. (1912). The Supreme Court and the Constitution. New York: Macmillan Company. Reprinted Dover Publications, 2006. ISBN 0-486-44779-0.
• Cushman, Barry. (1998). Rethinking the New Deal Court. Oxford University Press.
• Cushman, Clare (2001). The Supreme Court Justices: Illustrated Biographies, 1789–1995 (2nd ed.). (Supreme Court Historical Society, Congressional Quarterly Books). ISBN 9781568021263.. 
• Frank, John P. (1995). Friedman, Leon; Israel, Fred L.. eds. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Chelsea House Publishers. ISBN 9781568021263. 
• Garner, Bryan A. (2004). Black's Law Dictionary. Deluxe 8th ed. Thomson West. ISBN 0-314-15199-0.
• Greenburg, Jan Crawford, Jan. (2007). Supreme Conflict: The Inside Story of the Struggle for Control for the United States Supreme Court. New York: Penguin Press. ISBN 978-1-59420-101-1.
• Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 0871875543. 
• McCloskey, Robert G. (2005). The American Supreme Court. 4th ed. Chicago: University of Chicago Press. ISBN 0-226-55682-4.
• O'Brien, David M. (2008). Storm Center: The Supreme Court in American Politics (8th ed.). New York: W. W. Norton & Company. ISBN 0393932184. 
• Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. Doubleday, 2007. ISBN 0-385-51640-1.
• Urofsky, Melvin and Finkelman, Paul. (2001). A March of Liberty: A Constitutional History of the United States. 2 vols. New York: Oxford University Press. ISBN 0-19-512637-8 & ISBN 0-19-512635-1.
• Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. p. 590. ISBN 0815311761.. 
• Supreme Court Historical Society. "The Court Building" (PDF). http://www.supremecourt.gov/about/courtbuilding.pdf. Retrieved 2008-02-13. 

External links

• Supreme Court of the United States official website
• Justices of the United States Supreme Court on UnitedStatesReports.org
• Supreme Court from UCB Libraries GovPubs
• Supreme Court Collection from the Legal Information Institute
• Supreme Court Opinions from FindLaw
• U.S. Supreme Court Decisions (v. 1+) from Justia, Oyez and U.S. Court Forms
• Supreme Court Records and Briefs from Cornell Law Library
• History of the U.S. Supreme Court
• Milestone Cases in Supreme Court History from InfoPlease
• Supreme Court Nominations, present-1789
• Supreme Court Historical Society
• U.S. Supreme Court topic coverage from The New York Times
• Complete/Searchable 1991-2004 Opinions and Orders
• The Supreme Court Database A research database with information about cases from 1953-2008
• A History of Supreme Court Nominations A public radio show about the long history of appointments to the US Supreme Court.

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