Template:Infobox high court Template:SCOTUS series
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all federal court cases, and over state court cases that involve a point of U.S. Constitutional or federal law. It also has original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party."[1] The court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law.[2] However, it may act only within the context of a case in an area of law over which it has jurisdiction. The court may decide cases having political overtones, but has ruled that it does not have power to decide non-justiciable political questions.
Established by Article Three of the United States Constitution, the composition and procedures of the Supreme Court were initially established by the 1st Congress through the Judiciary Act of 1789. The court consists of nine justices: the chief justice of the United States and eight associate justices, and the justices meet at the Supreme Court Building in Washington, D.C. Justices have lifetime tenure, meaning they remain on the court until they die, retire, resign, or are impeached and removed from office.[3] When a vacancy occurs, the president, with the advice and consent of the Senate, appoints a new justice. Each justice has a single vote in deciding the cases argued before the court. When in the majority, the chief justice decides who writes the opinion of the court; otherwise, the most senior justice in the majority assigns the task of writing the opinion.
The Supreme Court receives on average about 7,000 petitions for writs of certiorari each year, but grants only 70–90.[4] In recent years, the Supreme Court has seen substantial criticism over democratic backsliding, ethics scandals and a lack of external enforcement, partisan rulings, secretive decisions, and limited and slow ability to take on cases, among other controversies.
History
It was while debating the separation of powers between the legislative and executive departments that delegates to the 1787 Constitutional Convention established the parameters for the national judiciary. Creating a "third branch" of government was a novel idea; in the English tradition, judicial matters had been treated as an aspect of royal (executive) authority. Early on, the delegates who were opposed to having a strong central government argued that national laws could be enforced by state courts, while others, including James Madison, advocated for a national judicial authority consisting of tribunals chosen by the national legislature. It was proposed that the judiciary should have a role in checking the executive's power to veto or revise laws.
Eventually, the framers compromised by sketching only a general outline of the judiciary in Article Three of the United States Constitution, vesting federal judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."[5][6] They delineated neither the exact powers and prerogatives of the Supreme Court nor the organization of the judicial branch as a whole.
The 1st United States Congress provided the detailed organization of a federal judiciary through the Judiciary Act of 1789. The Supreme Court, the country's highest judicial tribunal, was to sit in the nation's capital and would initially be composed of a chief justice and five associate justices. The act also divided the country into judicial districts, which were in turn organized into circuits. Justices were required to "ride circuit" and hold circuit court twice a year in their assigned judicial district.[7]
Immediately after signing the act into law, President George Washington nominated the following people to serve on the court: John Jay for chief justice and John Rutledge, William Cushing, Robert H. Harrison, James Wilson, and John Blair Jr. as associate justices. All six were confirmed by the Senate on September 26, 1789; however, Harrison declined to serve, and Washington later nominated James Iredell in his place.[8]
The Supreme Court held its inaugural session from February 2 through February 10, 1790, at the Royal Exchange in New York City, then the U.S. capital.[9] A second session was held there in August 1790.[10] The earliest sessions of the court were devoted to organizational proceedings, as the first cases did not reach it until 1791.[7] When the nation's capital was moved to Philadelphia in 1790, the Supreme Court did so as well. After initially meeting at Independence Hall, the court established its chambers at City Hall.[11]
Early beginnings
Under chief justices Jay, Rutledge, and Ellsworth (1789–1801), the court heard few cases; its first decision was West v. Barnes (1791), a case involving procedure.[12] As the court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two).[13] However, Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789.[14] The court lacked a home of its own and had little prestige,[15] a situation not helped by the era's highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.[16]
The court's power and prestige grew substantially during the Marshall Court (1801–1835).[17] Under Marshall, the court established the power of judicial review over acts of Congress,[18] including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[19][20] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee, McCulloch v. Maryland, and Gibbons v. Ogden.[21][22][23][24]
The Marshall Court also ended the practice of each justice issuing his opinion seriatim,[25] a remnant of British tradition,[26] and instead issuing a single majority opinion.[25] Also during Marshall's tenure, although beyond the court's control, the impeachment and acquittal of Justice Samuel Chase from 1804 to 1805 helped cement the principle of judicial independence.[27][28]
From Taney to Taft
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.[29] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,[30] which helped precipitate the American Civil War.[31] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution[24] and developed the doctrine of substantive due process (Lochner v. New York;[32] Adair v. United States).[33] It was in 1869 that the size of the court last changed, being set at nine.
Under the White and Taft Courts (1910–1930), the court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states (Gitlow v. New York),[34] grappled with the new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the constitutionality of military conscription (Selective Draft Law Cases),[35] and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).[36]
New Deal era
During the Hughes, Stone, and Vinson courts (1930–1953), the court gained its own accommodation in 1935[37] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin D. Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby, and United States v. Butler).[38][39][40] During World War II, the court continued to favor government power, upholding the internment of Japanese Americans (Korematsu v. United States) and the mandatory Pledge of Allegiance (Minersville School District v. Gobitis). Nevertheless, Gobitis was soon repudiated (West Virginia State Board of Education v. Barnette), and the Steel Seizure Case restricted the pro-government trend.
The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties.[41] It held that segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment (Brown v. Board of Education, Bolling v. Sharpe, and Green v. County School Bd.)[42] and that legislative districts must be roughly equal in population (Reynolds v. Sims). It recognized a general right to privacy (Griswold v. Connecticut),[43] limited the role of religion in public school, most prominently Engel v. Vitale and Abington School District v. Schempp,[44][45] incorporated most guarantees of the Bill of Rights against the states, prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright (right to appointed counsel),[46][47] and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona).[48] At the same time, the court limited defamation suits by public figures (New York Times Co. v. Sullivan) and supplied the government with an unbroken run of antitrust victories.[49]
Burger, Rehnquist, and Roberts
The Burger Court (1969–1986) saw a conservative shift.[50] It also expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade)[51] but divided deeply on affirmative action (Regents of the University of California v. Bakke)[52] and campaign finance regulation (Buckley v. Valeo).[53] It also wavered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),[54] but later that the death penalty itself was not unconstitutional (Gregg v. Georgia).[54][55][56]
The Rehnquist Court (1986–2005) was known for its revival of judicial enforcement of federalism,[57] emphasizing the limits of the Constitution's affirmative grants of power (United States v. Lopez) and the force of its restrictions on those powers (Seminole Tribe v. Florida, City of Boerne v. Flores).[58][59][60][61][62] It struck down single-sex state schools as a violation of equal protection (United States v. Virginia), laws against sodomy as violations of substantive due process (Lawrence v. Texas)[63] and the line-item veto (Clinton v. New York) but upheld school vouchers (Zelman v. Simmons-Harris) and reaffirmed Roe's restrictions on abortion laws (Planned Parenthood v. Casey).[64] The court's decision in Bush v. Gore, which ended the electoral recount during the 2000 United States presidential election, was especially controversial.[65][66]
The Roberts Court (2005–present) is regarded as more conservative than the Rehnquist Court.[67][68][69][70] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Twombly–Iqbal), voting rights and federal preclearance (Shelby County–Brnovich), abortion (Gonzales v. Carhart and Dobbs v. Jackson Women's Health Organization),[71] climate change (Massachusetts v. EPA), same-sex marriage (United States v. Windsor and Obergefell v. Hodges), and the Bill of Rights, such as in Citizens United v. Federal Election Commission and Americans for Prosperity Foundation v. Bonta (First Amendment),[72] Heller–McDonald–Bruen (Second Amendment),[73] and Baze v. Rees (Eighth Amendment).[74][75]
Composition
Nomination, confirmation, and appointment
Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, such as age, citizenship, residence or prior judicial experience, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.[76][77][78]
In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955.[79] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.
Although Senate rules do not necessarily allow a negative or tied vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson's nomination of sitting associate justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, only Democratic senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority's prior refusal to take up President Barack Obama's nomination of Merrick Garland to fill the vacancy.[80] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.[81]
Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred with President George W. Bush's nomination of Harriet Miers in 2005. The Senate may also fail to act on a nomination, which expires at the end of the session. President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate failed to act on the March 2016 nomination of Merrick Garland, as the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump.[82]
Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the appointee can take office.[83] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[84] After receiving their commission, the appointee must then take the two prescribed oaths before assuming their official duties.[85] The importance of the oath taking is underscored by the case of Edwin M. Stanton. Although confirmed by the Senate on December 20, 1869, and duly commissioned as an associate justice by President Ulysses S. Grant, Stanton died on December 24, prior to taking the prescribed oaths. He is not, therefore, considered to have been a member of the court.[86][87]
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, the process has taken much longer and some believe this is because Congress sees justices as playing a more political role than in the past.[88] According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (2.3 months).[89][90]
Recess appointments
When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.[91]
No U.S. president since Dwight D. Eisenhower has made a recess appointment to the court, and the practice has become rare and controversial even in lower federal courts.[92] In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the court should only be made in "unusual circumstances";[93] such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.[93][94]
The Supreme Court's 2014 decision in National Labor Relations Board v. Noel Canning limited the ability of the president to make recess appointments (including appointments to the Supreme Court); the court ruled that the Senate decides when the Senate is in session or in recess. Writing for the court, Justice Breyer stated, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business."[95] This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions.[96]
Tenure
Article Three, Section 1 of the Constitution provides that justices "shall hold their offices during good behavior", which is understood to mean that they may serve for the remainder of their lives, until death; furthermore, the phrase is generally interpreted to mean that the only way justices can be removed from office is by Congress via the impeachment process. The Framers of the Constitution chose good behavior tenure to limit the power to remove justices and to ensure judicial independence.[97][98][99] No constitutional mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.[100] The only justice ever to be impeached was Samuel Chase, in 1804. The House of Representatives adopted eight articles of impeachment against him; however, he was acquitted by the Senate, and remained in office until his death in 1811.[101] No subsequent effort to impeach a sitting justice has progressed beyond referral to the Judiciary Committee. (For example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969.)
Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes they arise in quick succession, as in September 1971, when Hugo Black and John Marshall Harlan II left within days of each other, the shortest period of time between vacancies in the court's history.[102] Sometimes a great length of time passes between vacancies, such as the 11-year span, from 1994 to 2005, from the retirement of Harry Blackmun to the death of William Rehnquist, which was the second longest timespan between vacancies in the court's history.[103] On average a new justice joins the court about every two years.[104]
Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, although his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the court. Jimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.
Size of the court
The U.S. Supreme Court consists of nine members: one chief justice and eight associate justices. The U.S. Constitution does not specify the size of the Supreme Court, nor does it specify any specific positions for the court's members. However, the Constitution assumes the existence of the office of the chief justice, because it mentions in Article I, Section 3, Clause 6 that "the Chief Justice" must preside over impeachment trials of the President of the United States. The power to define the Supreme Court's size and membership has been assumed to belong to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through the Judiciary Act of 1789.
The size of the court was first altered by the Midnight Judges Act of 1801 which would have reduced the size of the court to five members upon its next vacancy (as federal judges have life tenure), but the Judiciary Act of 1802 promptly negated the 1801 act, restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew across the continent and as Supreme Court justices in those days had to ride the circuit, an arduous process requiring long travel on horseback or carriage over harsh terrain that resulted in months-long extended stays away from home, Congress added justices to correspond with the growth such that the number of seats for associate justices plus the chief justice became seven in 1807, nine in 1837, and ten in 1863.[105][106]
At the behest of Chief Justice Chase and in an attempt by the Republican Congress to limit the power of Democrat Andrew Johnson, Congress passed the Judicial Circuits Act of 1866, providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. Soon after Johnson left office, the new president Ulysses S. Grant,[107] a Republican, signed into law the Judiciary Act of 1869. This returned the number of justices to nine[108] (where it has since remained), and allowed Grant to immediately appoint two more judges.
President Franklin D. Roosevelt attempted to expand the court in 1937. His proposal envisioned the appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to "pack" the court with justices who would support Roosevelt's New Deal.[109] The plan, usually called the "court-packing plan", failed in Congress after members of Roosevelt's own Democratic Party believed it to be unconstitutional. It was defeated 70–20 in the Senate, and the Senate Judiciary Committee reported that it was "essential to the continuance of our constitutional democracy" that the proposal "be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America."[110][111][112][113]
The rise and solidification of a conservative majority on the court during the presidency of Donald Trump sparked a liberal response in the form of calls for court-packing. Democrats in the House of Representatives introduced a bill in April 2021 to expand the Supreme Court from nine to 13 seats, but Speaker of the House Nancy Pelosi refused to bring it to the floor and relatively few Democrats backed it.[114][115] Shortly after taking office in January 2021, Joe Biden established a presidential commission to study possible reforms to the Supreme Court. The commission's December 2021 final report discussed but took no position on expanding the size of the court.[116] It remains unclear whether it would be constitutional to expand the size of the Supreme Court in ways understood to be designed to "pack" it with justices that would rule more favorably on a president's agenda or to simply change the ideological composition of the court.[117][118]
Membership
Current justices
There are currently nine justices on the Supreme Court: Chief Justice John Roberts and eight associate justices. Among the current members of the court, Clarence Thomas is the longest-serving justice, with a tenure of Template:Age in days nts days (33 years, 22 days) as of Template:FULLDATE; the most recent justice to join the court is Ketanji Brown Jackson, whose tenure began on June 30, 2022, after being confirmed by the senate on April 7.[119]
This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority, as the chief justice has seniority over all associate justices regardless of tenure) on the court:
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LineData=
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</timeline>
Court demographics
The court currently has five male and four female justices. Among the nine justices, there are two African American justices (Justices Thomas and Jackson) and one Hispanic justice (Justice Sotomayor). One of the justices was born to at least one immigrant parent: Justice Alito's father was born in Italy.[121][122]
At least six justices are Roman Catholics, one is Jewish, and one is Protestant. It is unclear whether Neil Gorsuch considers himself a Catholic or an Episcopalian.[123] Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists.[124][125] The first Catholic justice was Roger Taney in 1836,[126] and 1916 saw the appointment of the first Jewish justice, Louis Brandeis.[127] In recent years the historical situation has reversed, as most recent justices have been either Catholic or Jewish.
Three justices are from the state of New York, two are from Washington, D.C., and one each is from New Jersey, Georgia, Colorado, and Louisiana.[128][129][130] Eight of the current justices received their Juris Doctor from an Ivy League law school: Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and John Roberts from Harvard; plus Samuel Alito, Brett Kavanaugh, Sonia Sotomayor and Clarence Thomas from Yale. Only Amy Coney Barrett did not; she received her Juris Doctor at Notre Dame.
Previous positions or offices, judicial or federal government, prior to joining the court (by order of seniority following the Chief Justice) include:
For much of the court's history, every justice was a man of Northwestern European descent, and almost always Protestant. Diversity concerns focused on geography, to represent all regions of the country, rather than religious, ethnic, or gender diversity.[131] Racial, ethnic, and gender diversity in the court increased in the late 20th century. Thurgood Marshall became the first African-American justice in 1967.[127] Sandra Day O'Connor became the first female justice in 1981.[127] In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991.[132] O'Connor was joined by Ruth Bader Ginsburg, the first Jewish woman on the Court, in 1993.[133] After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice,[127] and in 2010 by Elena Kagan.[133] After Ginsburg's death on September 18, 2020, Amy Coney Barrett was confirmed as the fifth woman in the court's history on October 26, 2020. Ketanji Brown Jackson is the sixth woman and first African-American woman on the court.
There have been six foreign-born justices in the court's history: James Wilson (1789–1798), born in Caskardy, Scotland; James Iredell (1790–1799), born in Lewes, England; William Paterson (1793–1806), born in County Antrim, Ireland; David Brewer (1889–1910), born to American missionaries in Smyrna, Ottoman Empire (now Izmir, Turkey); George Sutherland (1922–1939), born in Buckinghamshire, England; and Felix Frankfurter (1939–1962), born in Vienna, Austria-Hungary (now in Austria).[127]
Since 1789, about one-third of the justices have been U.S. military veterans. Samuel Alito is the only veteran currently serving on the court.[134] Retired justices Stephen Breyer and Anthony Kennedy also served in the U.S. military.[135]
Retired justices
There are currently four living retired justices of the Supreme Court of the United States: Sandra Day O'Connor, Anthony Kennedy, David Souter, and Stephen Breyer. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the chief justice, on request of the chief judge of the lower court and with the consent of the retired justice. In recent years, Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court; and Justice O'Connor often sat with several Courts of Appeal before withdrawing from public life in 2018.[136] The status of a retired justice is analogous to that of a circuit or district court judge who has taken senior status, and eligibility of a Supreme Court justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.
In recent times, justices tend to strategically plan their decisions to leave the bench with personal, institutional, ideological, partisan, and sometimes even political factors playing a role.[137][138] The fear of mental decline and death often motivates justices to step down. The desire to maximize the court's strength and legitimacy through one retirement at a time, when the court is in recess and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a philosophically compatible president holding office, to ensure that a like-minded successor would be appointed.[139][140]
| Justice Birthdate and place |
Appointed by | Age at | Tenure (active service) | ||||
|---|---|---|---|---|---|---|---|
| Retirement | Present | Start date | End date | Length | |||
| File:Sandra Day O'Connor crop.jpg | Sandra Day O'Connor March 26, 1930 El Paso, Texas |
Reagan (R) |
75 | Template:Age nts | September 25, 1981 | January 31, 2006 | 24 years, 128 days |
| File:Anthony Kennedy official SCOTUS portrait crop.jpg | Anthony Kennedy July 23, 1936 Sacramento, California |
Reagan (R) |
82 | Template:Age nts | February 18, 1988 | July 31, 2018 | 30 years, 163 days |
| File:DavidSouter.jpg | David Souter September 17, 1939 Melrose, Massachusetts |
G. H. W. Bush (R) |
69 | Template:Age nts | October 9, 1990 | June 29, 2009 | 18 years, 263 days |
| File:Stephen Breyer official SCOTUS portrait crop.jpg | Stephen Breyer August 15, 1938 San Francisco, California |
Clinton (D) |
83 | Template:Age nts | August 3, 1994 | June 30, 2022 | 27 years, 331 days |
Seniority and seating
 | This section needs additional citations for verification. (January 2019) |
For the most part, the day-to-day activities of the justices are governed by rules of protocol based upon the seniority of justices. The chief justice always ranks first in the order of precedence—regardless of the length of their service. The associate justices are then ranked by the length of their service. The chief justice sits in the center on the bench, or at the head of the table during conferences. The other justices are seated in order of seniority. The senior-most associate justice sits immediately to the chief justice's right; the second most senior sits immediately to their left. The seats alternate right to left in order of seniority, with the most junior justice occupying the last seat. Therefore, since the October 2022 term, the court sits as follows from left to right, from the perspective of those facing the court: Barrett, Gorsuch, Sotomayor, Thomas (most senior associate justice), Roberts (chief justice), Alito, Kagan, Kavanaugh, and Jackson. Likewise, when the members of the court gather for official group photographs, justices are arranged in order of seniority, with the five most senior members seated in the front row in the same order as they would sit during Court sessions, and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions.
In the justices' private conferences, current practice is for them to speak and vote in order of seniority, beginning with the chief justice first and ending with the most junior associate justice. By custom, the most junior associate justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving beverages and transmitting orders of the court to the clerk.[141]
Salary
As of 2021, associate justices receive a yearly salary of $268,300 and the chief justice is paid $280,500 per year.[142] Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement.[citation needed]
Judicial leanings
Although justices are nominated by the president in power, and receive confirmation by the Senate, 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 generally refer to a legal outlook rather than a political or legislative one. The nominations of justices are endorsed by individual politicians in the legislative branch who vote their approval[clarification needed] or disapproval of the nominated justice. The ideologies of jurists can be measured and compared with several metrics, including the Segal–Cover score, Martin-Quinn score, and Judicial Common Space score.[143][144]
Since the confirmation of Amy Coney Barrett in 2020 following the death of Ruth Bader Ginsburg, the court has had six justices appointed by Republican presidents and three appointed by Democratic presidents. It is popularly accepted that Chief Justice Roberts and associate justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, appointed by Republican presidents, compose the court's conservative wing, and that Justices Sotomayor, Kagan, and Jackson, appointed by Democratic presidents, compose the court's liberal wing.[145] Kavanaugh was considered one of the most conservative judges in the DC Circuit prior to his appointment to the Supreme Court.[146][147] Likewise, Barrett's brief track record on the Seventh Circuit is conservative.[148] Prior to Justice Ginsburg's death, Chief Justice Roberts was considered the court's median justice (with four justices more liberal and four more conservative than him), making him the ideological center of the conservative court.[149][150] Since Ginsburg's death and Barrett's confirmation, Kavanaugh has been described as the median justice of this more conservative court, based on the criterion that he has been in the majority more than any other justice.[151]
Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions."[152] He pointed out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defied the popular conception of the ideological lines of the court.[153] Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) were an illustration that the conservative justices had not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacked merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.
According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5–4 vote, with an average of 70% of those split opinions decided by a court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the court has divided along ideological lines, which represents about 44% of all the 5–4 decisions.[154]
In the October 2010 term, the court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the court reverses a lower court without arguments and without issuing an opinion on the case).[155][156] Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9–0 or 8–0), and 16 decisions were made by a 5–4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term).[157] However, in fourteen of the sixteen 5–4 decisions, the court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5–4 decisions, the highest cohesion rate of that bloc in the Roberts Court.[155][158]
The October 2017 term had a low rate of unanimous rulings, with only 39% of the cases decided by unanimous rulings, the lowest percentage since the October 2008 term when 30% of rulings were unanimous.[159] Chief Justice Roberts was in the majority most often (68 out of 73 cases, or 93.2%), with retiring Justice Anthony Kennedy in second (67 out of 73 cases, or 91.8%); this was typical of the Roberts Court, in which Roberts and Kennedy have been in the majority most frequently in all terms except for the 2013 and 2014 terms (though Kennedy was in the top on both those terms).[160] Justice Sotomayor was the justice least likely to be in the majority (in 50 out of 73 cases, or 68.5%). The highest agreement between justices was between Ginsburg and Sotomayor, who agreed on 95.8% of the cases, followed by Thomas and Alito agreeing on 93% of cases. There were 19 cases that were decided by a 5–4 vote (26% of the total cases); 74% of those cases (14 out of 19) broke along ideological lines, and for the first time in the Roberts Court, all of those resulted in a conservative majority, with Roberts, Kennedy, Thomas, Alito, and Gorsuch on the majority.[160]
The October 2018 term, which saw the replacement of Anthony Kennedy by Brett Kavanaugh, once again saw a low rate of unanimity: only 28 of 71 decided cases were decided by a unanimous court, about 39% of the cases.[161][162] Of these, only 19 cases had the justices in total agreement. Chief Justice Roberts was once again the justice most often in the majority (61 out of 72 cases, or 85% of the time). Although Kavanaugh had a higher percentage of times in the majority, he did not participate in all cases, voting in the majority 58 out of 64 times, or 91% of the cases in which he participated. Of the justices who participated in all 72 cases, Kagan and Alito tied in second place, voting in the majority 59 out of 72 times (or 82% of the time). Looking only at cases that were not decided unanimously, Roberts and Kavanaugh were the most frequently in the majority (33 cases, with Roberts being in the majority in 75% of the divided cases, and Kavanaugh in 85% of the divided cases he participated in). Of 20 cases that were decided by a vote of 5–4, eight featured the conservative justices in the majority (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh), and eight had the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) joined by a conservative: Gorsuch was the most frequent, joining them four times, and the remaining conservative justices joining the liberals once each. The remaining four cases were decided by different coalitions.[162] The highest agreement between justices was between Roberts and Kavanaugh, who agreed at least in judgement 94% of the time; the second highest agreement was again between Ginsburg and Sotomayor, who agreed 93% of the time. The highest rate of full agreement was between Ginsburg and Kagan (82% of the time), closely followed by Roberts and Alito, Ginsburg and Sotomayor, and Breyer and Kagan (81% of the time). The largest rate of disagreement was between Thomas and both Ginsburg and Sotomayor; Thomas disagreed with each of them 50% of the time.[162]
By the completion of the 2021 term, the percent of 6–3 decisions favoring the conservative majority had reached 30%, with the percent of unanimous cases having dropped to the same number.[163]
Facilities
The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City. When Philadelphia became the capital, the court met briefly in Independence Hall before settling in Old City Hall from 1791 until 1800. After the government moved to Washington, D.C., the court occupied various spaces in the Capitol building until 1935, when it moved into its own purpose-built home. The four-story building was designed by Cass Gilbert in a classical style sympathetic to the surrounding buildings of the Capitol and Library of Congress, and is clad in marble. The building includes the courtroom, justices' chambers, an extensive law library, various meeting spaces, and auxiliary services including a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own Supreme Court Police, separate from the Capitol Police.[164]
Located across First Street from the United States Capitol at One First Street NE and Maryland Avenue,[165][166] the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays.[165] Visitors may not tour the actual courtroom unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film.[164] 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.[164] When the court is in session the public may attend oral arguments, which are held twice each morning (and sometimes afternoons) on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available.[167] The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. The court releases opinions beginning at 10 am on scheduled "non-argument days" (also called opinion days) listed on a calendar at the court's homepage.[168] These sessions, which typically last 15 to 30-minute, are also open to the public.[168][164] From mid-May until the end of June, at least one opinion day is scheduled each week.[164] Supreme Court Police are available to answer questions.[165]
Jurisdiction
Congress is authorized by Article III of the federal Constitution to regulate the Supreme Court's appellate jurisdiction. The Supreme Court has original and exclusive jurisdiction over cases between two or more states[169] but may decline to hear such cases.[170] It also possesses original but not exclusive jurisdiction to hear "all actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; all controversies between the United States and a State; and all actions or proceedings by a State against the citizens of another State or against aliens."[171]
In 1906, the court asserted its original jurisdiction to prosecute individuals for contempt of court in United States v. Shipp.[172] The resulting proceeding remains the only contempt proceeding and only criminal trial in the court's history.[173][174] The contempt proceeding arose from the lynching of Ed Johnson in Chattanooga, Tennessee the evening after Justice John Marshall Harlan granted Johnson a stay of execution to allow his lawyers to file an appeal. Johnson was removed from his jail cell by a lynch mob, aided by the local sheriff who left the prison virtually unguarded, and hanged from a bridge, after which a deputy sheriff pinned a note on Johnson's body reading: "To Justice Harlan. Come get your nigger now."[173] The local sheriff, John Shipp, cited the Supreme Court's intervention as the rationale for the lynching. The court appointed its deputy clerk as special master to preside over the trial in Chattanooga with closing arguments made in Washington before the Supreme Court justices, who found nine individuals guilty of contempt, sentencing three to 90 days in jail and the rest to 60 days in jail.[173][174][175] In all other cases, the court has only appellate jurisdiction, including the ability to issue writs of mandamus and writs of prohibition to lower courts. 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.[176]
The court's appellate jurisdiction consists of appeals from federal courts of appeal (through certiorari, certiorari before judgment, and certified questions),[177] the United States Court of Appeals for the Armed Forces (through certiorari),[178] the Supreme Court of Puerto Rico (through certiorari),[179] the Supreme Court of the Virgin Islands (through certiorari),[180] the District of Columbia Court of Appeals (through certiorari),[181] and "final judgments or decrees rendered by the highest court of a State in which a decision could be had" (through certiorari).[181] In the last case, an appeal may be made to the Supreme Court from a lower state court if the state's highest court declined to hear an appeal or lacks jurisdiction to hear an appeal. For example, a decision rendered by one of the Florida District Courts of Appeal can be appealed to the U.S. Supreme Court if (a) the Supreme Court of Florida declined to grant certiorari, e.g. Florida Star v. B. J. F., or (b) the district court of appeal issued a per curiam decision simply affirming the lower court's decision without discussing the merits of the case, since the Supreme Court of Florida lacks jurisdiction to hear appeals of such decisions.[182] The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases. It has to be noted that this "collateral review" often only applies to individuals on death row and not through the regular judicial system.[183]
Since Article Three of the United States Constitution stipulates that federal courts may only entertain "cases" or "controversies", the Supreme Court cannot decide cases that are moot and it 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. However, the court recognizes some circumstances where it is appropriate to hear a case that is seemingly moot. If an issue is "capable of repetition yet evading review", the court would address it even though the party before the court would not themselves be made whole by a favorable result. In Roe v. Wade, 410 U.S. 113 (1973), and other abortion cases, the court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer than the typical human gestation period to appeal a case through the lower courts to the Supreme Court. Another mootness exception is voluntary cessation of unlawful conduct, in which the court considers the probability of recurrence and plaintiff's need for relief.[184]
Justices as circuit justices
The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "circuit justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time. Under the Judiciary Act of 1789, each justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many justices, who cited the difficulty of travel. Moreover, there was a potential for a conflict of interest on the court if a justice had previously decided the same case while riding circuit. Circuit riding ended in 1901, when the Circuit Court of Appeals Act was passed, and circuit riding was officially abolished by Congress in 1911.[185]
The circuit justice for each circuit is responsible for dealing with certain types of applications that, by law and the rules of the court, may be addressed by a single justice. Ordinarily, a justice will resolve such an application by simply endorsing it "granted" or "denied" or entering a standard form of order; however, the justice may elect to write an opinion, referred to as an in-chambers opinion. Congress has specifically authorized one justice to issue a stay pending certiorari in . Each justice also decides routine procedural requests, such as for extensions of time.
Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court."[186] However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989.[187][188] Nevertheless, requests for injunctions under the All Writs Act are sometimes directed to the circuit justice. In the past,[when?] circuit justices also sometimes granted motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal.[189]
A circuit justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A circuit justice sitting with the Court of Appeals has seniority over the chief judge of the circuit.[190] The chief justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each associate justice is assigned to one or two judicial circuits.
As of September 28, 2022, the allotment of the justices among the circuits is as follows:[191]
Five of the current justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Sotomayor (Second Circuit), Justice Alito (Third Circuit), Justice Barrett (Seventh Circuit), and Justice Gorsuch (Tenth Circuit).
Process
Term
A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of around two weeks known as "sittings" and "recesses"; justices hear cases and deliver rulings during sittings, and discuss cases and write opinions during recesses.[192]
Case selection
Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as cert; the court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case."[193] The court may also review "final judgments rendered by the highest court of a state in which a decision could be had" but only if those judgments involve a question of federal statutory or constitutional law.[194] The party that appealed to the court is the petitioner and the non-mover is the respondent. All case names before the court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.
The Supreme Court relies on the record assembled by lower courts for the facts of a case and deals solely with the question of how the law applies to the facts presented. There are however situations where the court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford,[195] parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact.[196] Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury.[197] Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.
A cert petition is voted on at a session of the court called conference. A conference is a private meeting of the nine justices by themselves; the public and the justices' clerks are excluded. The rule of four permits four of the nine justices to grant a writ of certiorari. If it is granted, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition. The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:
- Resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution
- Correcting an egregious departure from the accepted and usual course of judicial proceedings
- Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the court.
When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split"; if the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the case's final ruling. To manage the high volume of cert petitions received by the court each year (of the more than 7,000 petitions the court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the court employs an internal case management tool known as the "cert pool"; currently, all justices except for Justices Alito and Gorsuch participate in the cert pool.[198][199][200][201]
Oral argument
When the court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the court, amici curiae, or "friends of the court", may also file briefs. The court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the court may choose to give more time, although this is rare),[202] and during that time, the justices may interrupt the advocate and ask questions. In 2019, the court adopted a rule generally allowing advocates to speak uninterrupted for the first two minutes of their argument.[203] The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The court advises counsel to assume that the justices are familiar with and have read the briefs filed in a case.
Supreme Court bar
In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys.[citation needed] The rest join for a one-time fee of $200, earning the court about $750,000 annually. Attorneys can be admitted as either individuals or as groups. The group admission is held before the current justices of the Supreme Court, wherein the chief justice approves a motion to admit the new attorneys.[204] Lawyers commonly apply for the cosmetic value of a certificate to display in their office or on their resume. They also receive access to better seating if they wish to attend an oral argument.[205] Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library.[206]
Decision
At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the justices. After the oral argument is concluded, usually in the same week as the case was submitted, the justices retire to another conference at which the preliminary votes are tallied and the court sees which side has prevailed. One of the justices in the majority is then assigned to write the court's opinion, also known as the "majority opinion", an assignment made by the most senior justice in the majority, with the chief justice always being considered the most senior. Drafts of the court's opinion circulate among the justices until the court is prepared to announce the judgment in a particular case.[207]
Justices are free to change their votes on a case up until the decision is finalized and published. In any given case, a justice is free to choose whether or not to author an opinion or else simply join the majority or another justice's opinion. There are several primary types of opinions:
- Opinion of the court: this is the binding decision of the Supreme Court. An opinion that more than half of the justices join (usually at least five justices, since there are nine justices in total; but in cases where some justices do not participate it could be fewer) is known as "majority opinion" and creates binding precedent in American law. Whereas an opinion that fewer than half of the justices join is known as a "plurality opinion" and is only partially binding precedent.
- Concurring: a justice agrees with and joins the majority opinion but authors a separate concurrence to give additional explanations, rationales, or commentary. Concurrences do not create binding precedent.
- Concurring in the judgment: a justice agrees with the outcome the court reached but disagrees with its reasons for doing so. A justice in this situation does not join the majority opinion. Like regular concurrences, these do not create binding precedent.
- Dissent: a justice disagrees with the outcome the court reached and its reasoning. Justices who dissent from a decision may author their own dissenting opinions or, if there are multiple dissenting justices in a decision, may join another justice's dissent. Dissents do not create binding precedent. A justice may also join only part(s) of a particular decision, and may even agree with some parts of the outcome and disagree with others.
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, the court is under no obligation to release a decision within any set time after oral argument. Since recording devices are banned inside the courtroom of the Supreme Court Building, the delivery of the decision to the media is done via paper copies and is known as the "Running of the Interns".[208]
It is possible that through recusals or vacancies the court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices.[209] If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the court had been evenly divided. For cases brought to the Supreme Court by direct appeal from a United States District Court, the chief justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.[210] This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945).[211]
Published opinions
 | This section needs to be updated. (August 2021) |
The court's opinions are published in three stages. First, a slip opinion is made available on the court's web site and through other outlets. Next, several opinions and lists of the court's orders 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 by the Reporter of Decisions. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports (or a competing version published by another commercial legal publisher but containing parallel citations) to allow those who read their pleadings and other briefs to find the cases quickly and easily. As of January 2019[update], there are:
- Final bound volumes of U.S. Reports: 569 volumes, covering cases through June 13, 2013 (part of the October 2012 term).[212][213]
- Slip opinions: 21 volumes (565–585 for 2011–2017 terms, three two-part volumes each), plus part 1 of volume 586 (2018 term).[214]
As of March 2012[update], the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012.[citation needed] This figure does not reflect the number of cases the court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle, where Meredith v. Jefferson County Board of Education was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which are a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.
Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter, published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals and other legal media, case citations generally contain cites from each of the three reporters; for example, citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Com'n, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition.[215][216]
Citations to published opinions
Lawyers use an abbreviated format to cite cases, in the form "vol U.S. page, pin (year)", where vol is the volume number, page is the page number on which the opinion begins, and year is the year in which the case was decided. Optionally, pin is used to "pinpoint" to a specific page number within the opinion. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973), which means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For opinions or orders that have not yet been published in the preliminary print, the volume and page numbers may be replaced with ___
Institutional powers
The federal court system and the judicial authority to interpret the Constitution received little attention in the debates over the drafting and ratification of the Constitution. The power of judicial review, in fact, is nowhere mentioned in it. Over the ensuing years, the question of whether the power of judicial review was even intended by the drafters of the Constitution was quickly frustrated by the lack of evidence bearing on the question either way.[217] Nevertheless, the power of judiciary to overturn laws and executive actions it determines are unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, and 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 firmly established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the American system of checks and balances. In explaining the power of judicial review, Chief Justice John Marshall stated that the authority to interpret the law was the particular province of the courts, part of the duty of the judicial department to say what the law is. His contention was not that the court had privileged insight into constitutional requirements, but that it was the constitutional duty of the judiciary, as well as the other branches of government, to read and obey the dictates of the Constitution.[217]
Since the founding of the republic, there has been a tension between the practice of judicial review and the democratic ideals of egalitarianism, self-government, self-determination and freedom of conscience. At one pole are those who view the federal judiciary and especially the Supreme Court as being "the most separated and least checked of all branches of government."[218] Indeed, federal judges and justices on the Supreme Court are not required to stand for election by virtue of their tenure "during good behavior", and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Although subject to the process of impeachment, only one justice has ever been impeached and no Supreme Court justice has been removed from office. At the other pole are those who view the judiciary as the least dangerous branch, with little ability to resist the exhortations of the other branches of government.[217]
Constraints
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!"[219] Some state governments in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the court's order in United States v. Nixon (1974) to surrender the Watergate tapes.[220] Nixon ultimately complied with the Supreme Court's ruling.[221]
Supreme Court decisions can be purposefully overturned by constitutional amendment, something that has happened on six occasions:
- Chisholm v. Georgia (1793) – overturned by the Eleventh Amendment (1795)
- Dred Scott v. Sandford (1857) – overturned by the Thirteenth Amendment (1865) and the Fourteenth Amendment (1868)
- Pollock v. Farmers' Loan & Trust Co. (1895) – overturned by the Sixteenth Amendment (1913)
- Minor v. Happersett (1875) – overturned by the Nineteenth Amendment (1920)
- Breedlove v. Suttles (1937) – overturned by the Twenty-fourth Amendment (1964)
- Oregon v. Mitchell (1970) – overturned by the Twenty-sixth Amendment (1971)
When the court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter Fair Pay Act of 2009, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional consideration: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.[222]
In addition, the other two branches can restrain the court through other mechanisms. Congress can increase the number of justices, giving the president power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The court sanctioned such congressional action in the Reconstruction Era case ex parte McCardle (1869), although it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871).
On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government; for example, in United States v. Curtiss-Wright Export Corp. (1936), Dames & Moore v. Regan (1981), and notably in Goldwater v. Carter (1979), which effectively gave the presidency the power to terminate ratified treaties without the consent of Congress. The court's decisions can also impose limitations on the scope of Executive authority, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).
Law clerks
Each Supreme Court justice hires several law clerks to review petitions for writ of certiorari, research them, prepare bench memorandums, and draft opinions. Associate justices are allowed four clerks. The chief justice is allowed five clerks, but Chief Justice Rehnquist hired only three per year, and Chief Justice Roberts usually hires only four.[223] Generally, law clerks serve a term of one to two years.
The first law clerk was hired by Associate Justice Horace Gray in 1882.[223][224] Oliver Wendell Holmes Jr. and Louis Brandeis were the first Supreme Court justices to use recent law school graduates as clerks, rather than hiring "a stenographer-secretary."[225] Most law clerks are recent law school graduates.
The first female clerk was Lucile Lomen, hired in 1944 by Justice William O. Douglas.[223] The first African-American, William T. Coleman Jr., was hired in 1948 by Justice Felix Frankfurter.[223] A disproportionately large number of law clerks have obtained law degrees from elite law schools, especially Harvard, Yale, the University of Chicago, Columbia, and Stanford. From 1882 to 1940, 62% of law clerks were graduates of Harvard Law School.[223] Those chosen to be Supreme Court law clerks usually have graduated in the top of their law school class and were often an editor of the law review or a member of the moot court board. By the mid-1970s, clerking previously for a judge in a federal court of appeals had also become a prerequisite to clerking for a Supreme Court justice.
Ten Supreme Court justices previously clerked for other justices: Byron White for Frederick M. Vinson, John Paul Stevens for Wiley Rutledge, William Rehnquist for Robert H. Jackson, Stephen Breyer for Arthur Goldberg, John Roberts for William Rehnquist, Elena Kagan for Thurgood Marshall, Neil Gorsuch for both Byron White and Anthony Kennedy, Brett Kavanaugh also for Kennedy, Amy Coney Barrett for Antonin Scalia, and Ketanji Brown Jackson for Stephen Breyer. Justices Gorsuch and Kavanaugh served under Kennedy during the same term. Gorsuch is the first justice to clerk for and subsequently serve alongside the same justice, serving alongside Kennedy from April 2017 through Kennedy's retirement in 2018. With the confirmation of Justice Kavanaugh, for the first time a majority of the Supreme Court was composed of former Supreme Court law clerks (Roberts, Breyer, Kagan, Gorsuch and Kavanaugh, now joined by Barrett and Jackson).
Several current Supreme Court justices have also clerked in the federal courts of appeals: John Roberts for Judge Henry Friendly of the United States Court of Appeals for the Second Circuit, Justice Samuel Alito for Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit, Elena Kagan for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit, Neil Gorsuch for Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia, Brett Kavanaugh for Judge Walter Stapleton of the United States Court of Appeals for the Third Circuit and Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and Amy Coney Barrett for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.
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.[226][227] "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.[226] David J. Garrow, professor of history at the University of Cambridge, stated that the court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists."[226]
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."[226] A poll conducted in June 2012 by The New York Times and CBS News showed just 44% of Americans approve of the job the Supreme Court is doing. Three-quarters said justices' decisions are sometimes influenced by their political or personal views.[228] One study, using four-year panel data, found that public opinion of the Supreme Court was highly stable over time.[229] In 2023 a Gallup poll found that trust in the Supreme Court was at a historic low of 47%, the previous lowest rating was 53%.[230]
Criticism and controversies
The Supreme Court has been the object of criticisms and controversies on a range of issues. Among them:
Democratic backsliding
Thomas Keck argues that the US Supreme Court has rarely provided an effective check against democratic abuses, especially at five major constitutional crises throughout US history, and finds signs that the Roberts Court plays a more damaging role than most of its predecessors in undermining (maybe permanently) American democracy.[231] Aziz Z. Huq points to the blocking progress of democratizing institutions, increasing the disparity in wealth and power, and empowering an authoritarian white nationalist movement, as evidence that the Supreme Court has created a "permanent minority" incapable of democratic defeat.[232]
Ethics
In 2016, Stephen Spaulding, the legal director at Common Cause, commented, "there are fair questions raised by some of these trips about their commitment to being impartial."[233] Ethical controversies have grown with 2023 revelations[234] of justices (and their close family members) accepting expensive gifts,[235][236] travel,[233] business deals,[237][238] and speaking fees without oversight or recusals from cases that present conflicts of interest.[239][240] Spousal income and connections to cases has been redacted from the Justices' ethical disclosure forms[241] while justices, such as Clarence Thomas, failed to disclose many large financial gifts including a free vacation valued at $500,000.[234]
Lack of accountability
The ethics rules guiding the court's members are set and enforced by the justices, meaning the members of the court have no external checks on their behavior other than the impeachment of a justice by Congress.[242] Chief Justice Roberts refused to testify before the Senate Judiciary Committee in April 2023, reasserting his desire for the Supreme Court to continue to monitor itself despite mounting ethics scandals.[243] Lower courts, by contrast, discipline according to the 1973 Code of Conduct for U.S. judges which is enforced by the Judicial Conduct and Disability Act of 1980.[242] The lack of external enforcement of ethics or other conduct violations makes the Supreme Court an outlier in modern organizational best-practices.[242]
Subsequent to news reports in the summer of 2022 of undue influence through donations to the Supreme Court Historical Society,[244] the House Committee on the Judiciary convened a hearing to determine covert activity and influence on SCOTUS members by the Faith and Action (now Faith and Liberty) group, entitled "Undue Influence: Operation Higher Court and Politicking at SCOTUS",[245] at which the chief counsel for the watchdog group Citizens for Responsibility and Ethics in Washington (CREW), testified to the inherent danger of wealthy activists accessing and influencing justices, noting that Supreme Court justices are not subject to the gift bans applied to lower court judges, so that justices are "accepting gifts based on whether they choose to accept them or not".[246]
Increasing partisanship
Unlike constitutional courts in most democracies and contrary to the ideal taught in civics classes, the U.S. Supreme Court appears to be an increasingly partisan institution.[247][248] The partisan refusal to act on the nomination of Merrick Garland, citing a presidential election that was eight months away, together with the same partisan majority expediting the nomination of Amy Coney Barrett held less than 2 months before the 2020 presidential election four years later, showed that the Senate deems the institution to be of partisan importance.[248] Further evidence of partisanship can be found in the sinking confidence ratings for the Court among Independents (25%) and Democrats (13%) in the 2022 Gallup poll.[249] Lastly, FiveThirtyEight found the number of unanimous decisions dropped from the 20-year average of nearly 50% to nearly 30% in 2021 while party-line rulings increased from a 60-year average just above zero to a record high 21%.[250]
Individual rights
Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;[251] Plessy v. Ferguson (1896) upheld segregation under the doctrine of separate but equal;[252] Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights.[253][254] 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.[255] Senator Al Franken criticized the court for "eroding individual rights."[256] 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.[257]
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.[258] 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,[258][259] and which was reversed in the 1930s.[260][261][262]
An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion on the basis of the "right to privacy" inferred from the Fourteenth Amendment, a reasoning that some critics argued was circuitous,[258] and the case was overturned by Dobbs v. Jackson (2022). Legal scholars,[263][264] justices,[265] and presidential candidates[266] have criticized the Roe decision.
The progressive Brown v. Board of Education decision banning racial segregation in public schools has been criticized by conservatives such as Patrick Buchanan,[267] former associate justice nominee and solicitor general Robert Bork[268] and former presidential contender Barry Goldwater.[269]
More recently, Citizens United v. Federal Election Commission was criticized for expanding upon the precedent in First National Bank of Boston v. Bellotti (1978) that the First Amendment applies to corporations.[270] President Abraham 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."[271] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."[272]
During different historical periods, the court has leaned in different directions.[273][274] Critics from both sides complain that activist judges abandon the Constitution and substitute their own views instead.[275][276][277] Critics include writers such as Andrew Napolitano,[278] Phyllis Schlafly,[279] Mark R. Levin,[280] Mark I. Sutherland,[281] and James MacGregor Burns.[282][283] Past presidents from both parties have attacked judicial activism, including Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan.[284][285] 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."[286] Brian Leiter wrote that "Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power", and "Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial."[287]
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.[288][289][290][291][292][293]Template:Excessive citations inline 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.[294]
Lifetime tenure
Lifetime tenure of justices can only be found for US Supreme Court Justices and the State of Rhode Island's Supreme Court justices, with all other democratic nations and states favoring term limits.[295] 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."[296] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.[297] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times."[282] Proposals to solve these problems include term limits for justices, as proposed by Levinson[298] and Sabato[296][299] and a mandatory retirement age proposed by Richard Epstein,[300] among others.[301] 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."[302]
Minority rule and selection biases
The electoral college (which elects the President who nominates the justices) and the US Senate which confirms the justices, have selection biases that favor rural states that tend to vote Republican, resulting in a conservative Supreme Court.[303] For example, the three Trump appointees to the court were all nominated by a president who finished second in the popular vote and confirmed by Senators representing a minority of Americans.[304] In addition, Clarence Thomas' confirmation and Merrick Garland's blocked confirmation in 2016 were both decided by Senators representing a minority of Americans.[305] This has been critiqued as minority rule.[306][307]
Moreover, the Federalist Society acted as a filter for judicial nominations during the Trump administration,[308] ensuring the latest conservative justices lean even further to the right.[303] 86% of judges Trump appointed to circuit courts and the Supreme Court were Federalist Society members.[309] David Litt critiques it as "an attempt to impose rigid ideological dogma on a profession once known for intellectual freedom."[310]
Not choosing enough cases to review
Senator Arlen Specter said the court should "decide more cases";[256] on the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the court heard then was smaller than when he first joined the Supreme Court, he also stated that he had not changed his standards for deciding whether to review a case, nor did he believe his colleagues had 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.[311]
Power
This criticism is related to complaints about judicial activism. George Will wrote that the court has an "increasingly central role in American governance."[312] It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009.[313] 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.[313] 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."[314] Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."[296]
The 2021–2022 term of the court was the first full term following the appointment of three judges by Republican president Donald Trump — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — which created a six-strong conservative majority on the court. Subsequently, at the end of the term, the court issued a number of decisions that favored this conservative majority while significantly changing the landscape with respect to rights. These included Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey in recognizing abortion is not a constitutional right, New York State Rifle & Pistol Association, Inc. v. Bruen which made public possession of guns a protected right under the Second Amendment, Carson v. Makin and Kennedy v. Bremerton School District which both weakened the Establishment Clause separating church and state, and West Virginia v. EPA which weakened the power of executive branch agencies to interpret their congressional mandate.[315][316][317] Several observers considered this a shift of government power into the Supreme Court, and a "judicial coup" by some members of Congress including Representative Alexandria Ocasio-Cortez, urging action to reform the Supreme Court.[318][319]
State vs. federal power debate
There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison[320] and Alexander Hamilton[321] argued in The Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments,[322][323][324][325] others argue that expansive federal power is good and consistent with the Framers' wishes.[326] The Tenth Amendment to the United States Constitution explicitly grants "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
The court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005.[327] 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."[328] Justice Alito said congressional authority under the Commerce Clause is "quite broad";[329] modern-day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.[328]
Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be laboratories of democracy.[330] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law."[331] Others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."[332] More recently, the issue of federal power is central in the prosecution of Gamble v. United States, which is examining the doctrine of "separate sovereigns", whereby a criminal defendant can be prosecuted by a state court and then by a federal court.[333][334]
Secretive proceedings
The court has been criticized for keeping its deliberations hidden from public view.[335][336] For example, the increasing use of a 'shadow docket' facilitates the court making decisions in secret without hearing oral arguments or giving an explanation regarding its ruling.[337][338] According to a review of Jeffrey Toobin's 2007 book The Nine: Inside the Secret World of the Supreme Court; "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.'"[288] 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."[288] A Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised.[339][340]
Too slow
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 navigate their way through the system, their ability to restrain other branches is severely weakened.[341][342] In contrast, various other countries have a dedicated constitutional court that has original jurisdiction on constitutional claims brought by persons or political institutions; for example, the Federal Constitutional Court of Germany, which can declare a law unconstitutional when challenged.
Too small
The U.S. Supreme Court is the smallest (9 justices) of any major nation and could be expanded without a constitutional amendment.[343] Some have argued that 9 justices is too small a number to represent the perspectives of more than 300 million people, and that the number of seats on the Supreme Court should be expanded, with Jonathan Turley advocating for 19 justices.[344][345]
See also
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- Judicial appointment history for United States federal courts
- List of courts which publish audio or video of arguments
- List of presidents of the United States by judicial appointments
- Lists of United States Supreme Court cases
- List of supreme courts by country
- List of pending United States Supreme Court cases
- Oyez Project
- Reporter of Decisions of the Supreme Court of the United States
Selected landmark Supreme Court decisions
- Marbury v. Madison (1803, judicial review)
- McCulloch v. Maryland (1819, implied powers)
- Gibbons v. Ogden (1824, interstate commerce)
- Dred Scott v. Sandford (1857, slavery)
- Plessy v. Ferguson (1896, separate but equal treatment of races)
- Wickard v. Filburn (1942, federal regulation of economic activity)
- Brown v. Board of Education (1954, school segregation of races)
- Engel v. Vitale (1962, state-sponsored prayers in public schools)
- Abington School District v. Schempp (1963, Bible readings and recitation of the Lord's prayer in U.S. public schools)
- Gideon v. Wainwright (1963, right to an attorney)
- Griswold v. Connecticut (1965, contraception)
- Miranda v. Arizona (1966, rights of those detained by police)
- In re Gault (1967, rights of juvenile suspects)
- Loving v. Virginia (1967, interracial marriage)
- Lemon v. Kurtzman (1971, religious activities in public schools)
- New York Times Co. v. United States (1971, freedom of the press)
- Eisenstadt v. Baird (1972, privacy for unmarried people)
- Roe v. Wade (1973, abortion)
- Miller v. California (1973, obscenity)
- United States v. Nixon (1974, executive privilege)
- Buckley v. Valeo (1976, campaign finance)
- Bowers v. Hardwick (1986, sodomy)
- Bush v. Gore (2000, presidential election)
- Lawrence v. Texas (2003, sodomy)
- District of Columbia v. Heller (2008, gun rights)
- Citizens United v. FEC (2010, campaign finance)
- United States v. Windsor (2013, same-sex marriage)
- Shelby County v. Holder (2013, voting rights)
- Obergefell v. Hodges (2015, same-sex marriage)
- Bostock v. Clayton County (2020, discrimination on LGBT workers)
- McGirt v. Oklahoma (2020, tribal reservation rights)
- Dobbs v. Jackson Women's Health Organization (2022, abortion)
- Students for Fair Admissions v. Harvard (2023, affirmative action)
References
- ↑ U.S. Constitution, Article III, Section 2. This was narrowed by the Eleventh Amendment to exclude suits against states that are brought by persons who are not citizens of that state.
- ↑ "About the Supreme Court". Washington, D.C.: Administrative Office of the United States Courts. Archived from the original on December 15, 2020. Retrieved September 3, 2018.
- ↑ Turley, Jonathan. "Essays on Article III: Good Behavior Clause". Heritage Guide to the Constitution. Washington, D.C.: The Heritage Foundation. Archived from the original on August 22, 2020. Retrieved September 3, 2018.
- ↑ WIPO International Patent Case Management Judicial Guide: United States. 2022. SSRN Electronic Journal. P.S. Menell, A.A. Schmitt. doi: 10.2139/ssrn.4106648.
- ↑ Pushaw, Robert J. Jr. "Essays on Article III: Judicial Vesting Clause". Heritage Guide to the Constitution. Washington, D.C.: The Heritage Foundation. Archived from the original on August 22, 2020. Retrieved September 3, 2018.
- ↑ Watson, Bradley C. S. "Essays on Article III: Supreme Court". Heritage Guide to the Constitution. Washington, D.C.: The Heritage Foundation. Archived from the original on August 22, 2020. Retrieved September 3, 2018.
- ↑ 7.0 7.1 "The Court as an Institution". Washington, D.C.: Supreme Court of the United States. Archived from the original on December 7, 2020. Retrieved September 3, 2018.
- ↑ "Supreme Court Nominations: present–1789". Washington, D.C.: Office of the Secretary, United States Senate. Archived from the original on December 9, 2020. Retrieved September 3, 2018.
- ↑ Hodak, George (February 1, 2011). "February 2, 1790: Supreme Court Holds Inaugural Session". abajournal.com. Chicago, Illinois: American Bar Association. Archived from the original on December 3, 2020. Retrieved September 3, 2018.
- ↑ Pigott, Robert (2014). New York's Legal Landmarks: A Guide to Legal Edifices, Institutions, Lore, History, and Curiosities on the City's Streets. New York: Attorney Street Editions. p. 7. ISBN 978-0-61599-283-9.
- ↑ "Building History". Washington, D.C.: Supreme Court of the United States. Archived from the original on December 5, 2020. Retrieved September 3, 2018.
- ↑ Ashmore, Anne (August 2006). "Dates of Supreme Court decisions and arguments, United States Reports volumes 2–107 (1791–82)" (PDF). Library, Supreme Court of the United States. Archived (PDF) from the original on July 23, 2011. Retrieved April 26, 2009.
- ↑ Shugerman, Jed. "A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court". Georgia Law Review. 37: 893.
- ↑ Irons, Peter. A People's History of the Supreme Court, p. 101 (Penguin 2006).
- ↑ Scott Douglas Gerber, ed. (1998). "Seriatim: The Supreme Court Before John Marshall". New York University Press. p. 3. ISBN 0-8147-3114-7. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
Finally many scholars cite the absence of a separate Supreme Court building as evidence that the early Court lacked prestige.
- ↑ Manning, John F. (2004). "The Eleventh Amendment and the Reading of Precise Constitutional Texts". Yale Law Journal. 113 (8): 1663–1750. doi:10.2307/4135780. JSTOR 4135780. Archived from the original on July 16, 2019. Retrieved July 16, 2019.
- ↑ Epps, Garrett (October 24, 2004). "Don't Do It, Justices". The Washington Post. Archived from the original on November 26, 2020. Retrieved October 31, 2009.
The court's prestige has been hard-won. In the early 1800s, Chief Justice John Marshall made the court respected
- ↑ The Supreme Court had first used the power of judicial review in the case Ware v. Hylton, (1796), wherein it overturned a state law that conflicted with a treaty between the United States and Great Britain.
- ↑ Rosen, Jeffrey (July 5, 2009). "Black Robe Politics" (book review of Packing the Court by James MacGregor Burns). The Washington Post. Archived from the original on August 14, 2020. Retrieved October 31, 2009.
From the beginning, Burns continues, the Court has established its "supremacy" over the president and Congress because of Chief Justice John Marshall's "brilliant political coup" in Marbury v. Madison (1803): asserting a power to strike down unconstitutional laws.
- ↑ "The People's Vote: 100 Documents that Shaped America – Marbury v. Madison (1803)". U.S. News & World Report. 2003. Archived from the original on September 20, 2003. Retrieved October 31, 2009.
With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of 'checks and balances' created to prevent any one branch of the Federal Government from becoming too powerful...A Law repugnant to the Constitution is void.
- ↑ Sloan, Cliff; McKean, David (February 21, 2009). "Why Marbury V. Madison Still Matters". Newsweek. Archived from the original on August 2, 2009. Retrieved October 31, 2009.
More than 200 years after the high court ruled, the decision in that landmark case continues to resonate.
- ↑ "The Constitution in Law: Its Phases Construed by the Federal Supreme Court" (PDF). The New York Times. February 27, 1893. Archived (PDF) from the original on December 17, 2020. Retrieved October 31, 2009.
The decision … in Martin vs. Hunter's Lessee is the authority on which lawyers and Judges have rested the doctrine that where there is in question, in the highest court of a State, and decided adversely to the validity of a State statute... such claim is reviewable by the Supreme Court ...
- ↑ Ginsburg, Ruth Bader; Stevens, John P.; Souter, David; Breyer, Stephen (December 13, 2000). "Dissenting opinions in Bush v. Gore". USA Today. Archived from the original on May 25, 2010. Retrieved December 8, 2019.
Rarely has this Court rejected outright an interpretation of state law by a state high court … The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816).
- ↑ 24.0 24.1 "Decisions of the Supreme Court – Historic Decrees Issued in One Hundred and Eleven Years" (PDF). The New York Times. February 3, 1901. Archived (PDF) from the original on December 5, 2020. Retrieved October 31, 2009.
Very important also was the decision in Martin vs. Hunter's lessee, in which the court asserted its authority to overrule, within certain limits, the decisions of the highest State courts.
- ↑ 25.0 25.1 "The Supreme Quiz". The Washington Post. October 2, 2000. Archived from the original on April 29, 2011. Retrieved October 31, 2009.
According to the Oxford Companion to the Supreme Court of the United States, Marshall's most important innovation was to persuade the other justices to stop seriatim opinions—each issuing one—so that the court could speak in a single voice. Since the mid-1940s, however, there's been a significant increase in individual 'concurring' and 'dissenting' opinions.
- ↑ Slater, Dan (April 18, 2008). "Justice Stevens on the Death Penalty: A Promise of Fairness Unfulfilled". The Wall Street Journal. Archived from the original on August 14, 2020. Retrieved October 31, 2009.
The first Chief Justice, John Marshall set out to do away with seriatim opinions–a practice originating in England in which each appellate judge writes an opinion in ruling on a single case. (You may have read old tort cases in law school with such opinions). Marshall sought to do away with this practice to help build the Court into a coequal branch.
- ↑ Suddath, Claire (December 19, 2008). "A Brief History of Impeachment". Time. Archived from the original on December 19, 2008. Retrieved October 31, 2009.
Congress tried the process again in 1804, when it voted to impeach Supreme Court Justice Samuel Chase on charges of bad conduct. As a judge, Chase was overzealous and notoriously unfair … But Chase never committed a crime—he was just incredibly bad at his job. The Senate acquitted him on every count.
- ↑ Greenhouse, Linda (April 10, 1996). "Rehnquist Joins Fray on Rulings, Defending Judicial Independence". The New York Times. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
the 1805 Senate trial of Justice Samuel Chase, who had been impeached by the House of Representatives … This decision by the Senate was enormously important in securing the kind of judicial independence contemplated by Article III" of the Constitution, Chief Justice Rehnquist said
- ↑ Edward Keynes; Randall K. Miller (1989). "The Court vs. Congress: Prayer, Busing, and Abortion". Duke University Press. ISBN 0822309688. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
(page 115)... Grier maintained that Congress has plenary power to limit the federal courts' jurisdiction.
- ↑ Ifill, Sherrilyn A. (May 27, 2009). "Sotomayor's Great Legal Mind Long Ago Defeated Race, Gender Nonsense". U.S. News & World Report. Retrieved October 31, 2009.
But his decision in Dred Scott v. Sandford doomed thousands of black slaves and freedmen to a stateless existence within the United States until the passage of the 14th Amendment. Justice Taney's coldly self-fulfilling statement in Dred Scott, that blacks had "no rights which the white man [was] bound to respect," has ensured his place in history—not as a brilliant jurist, but as among the most insensitive
- ↑ Irons, Peter (2006). A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution. United States: Penguin Books. pp. 176–177. ISBN 978-0-14-303738-5.
The rhetorical battle that followed the Dred Scott decision, as we know, later erupted into the gunfire and bloodshed of the Civil War (p. 176)... his opinion (Taney's) touched off an explosive reaction on both sides of the slavery issue... (p. 177)
- ↑ "Liberty of Contract?". Exploring Constitutional Conflicts. October 31, 2009. Archived from the original on November 22, 2009. Retrieved October 31, 2009.
The term 'substantive due process' is often used to describe the approach first used in Lochner—the finding of liberties not explicitly protected by the text of the Constitution to be impliedly protected by the liberty clause of the Fourteenth Amendment. In the 1960s, long after the Court repudiated its Lochner line of cases, substantive due process became the basis for protecting personal rights such as the right of privacy, the right to maintain intimate family relationships.
- ↑ "Adair v. United States 208 U.S. 161". Cornell University Law School. 1908. Archived from the original on April 24, 2012. Retrieved October 31, 2009.
No. 293 Argued: October 29, 30, 1907 – Decided: January 27, 1908
- ↑ Bodenhamer, David J.; James W. Ely (1993). The Bill of Rights in modern America. Bloomington, Indiana: Indiana University Press. p. 245. ISBN 978-0-253-35159-3. Archived from the original on November 18, 2020. Retrieved October 29, 2020.
… of what eventually became the 'incorporation doctrine,' by which various federal Bill of Rights guarantees were held to be implicit in the Fourteenth Amendment due process or equal protection.
- ↑ White, Edward Douglass. "Opinion for the Court, Arver v. U.S. 245 U.S. 366". Archived from the original on May 1, 2011. Retrieved March 30, 2011.
Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
- ↑ Siegan, Bernard H. (1987). The Supreme Court's Constitution. Transaction Publishers. p. 146. ISBN 978-0-88738-671-8. Archived from the original on February 20, 2021. Retrieved October 31, 2009.
In the 1923 case of Adkins v. Children's Hospital, the court invalidated a classification based on gender as inconsistent with the substantive due process requirements of the fifth amendment. At issue was congressional legislation providing for the fixing of minimum wages for women and minors in the District of Columbia. (p. 146)
- ↑ Biskupic, Joan (March 29, 2005). "Supreme Court gets makeover". USA Today. Archived from the original on June 5, 2009. Retrieved October 31, 2009.
The building is getting its first renovation since its completion in 1935.
- ↑ Justice Roberts (September 21, 2005). "Responses of Judge John G. Roberts, Jr. to the Written Questions of Senator Joseph R. Biden" (PDF). The Washington Post. Archived (PDF) from the original on September 30, 2015. Retrieved October 31, 2009.
I agree that West Coast Hotel Co. v. Parrish correctly overruled Adkins. Lochner era cases—Adkins in particular—evince an expansive view of the judicial role inconsistent with what I believe to be the appropriately more limited vision of the Framers.
- ↑ Lipsky, Seth (October 22, 2009). "All the News That's Fit to Subsidize". The Wall Street Journal. Archived from the original on December 19, 2013. Retrieved October 31, 2009.
He was a farmer in Ohio ... during the 1930s, when subsidies were brought in for farmers. With subsidies came restrictions on how much wheat one could grow—even, Filburn learned in a landmark Supreme Court case, Wickard v. Filburn (1942), wheat grown on his modest farm.
- ↑ Cohen, Adam (December 14, 2004). "What's New in the Legal World? A Growing Campaign to Undo the New Deal". The New York Times. Archived from the original on March 7, 2013. Retrieved October 31, 2009.
Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest. Supporters of states' rights have always blamed Wickard ... for paving the way for strong federal action...
- ↑ "Justice Black Dies at 85; Served on Court 34 Years". The New York Times. United Press International (UPI). September 25, 1971. Archived from the original on October 15, 2009. Retrieved October 31, 2009.
Justice Black developed his controversial theory, first stated in a lengthy, scholarly dissent in 1947, that the due process clause applied the first eight amendments of the Bill of Rights to the states.
- ↑ "100 Documents that Shaped America Brown v. Board of Education (1954)". U.S. News & World Report. May 17, 1954. Archived from the original on November 6, 2009. Retrieved October 31, 2009.
On May 17, 1954, U.S. Supreme Court Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th amendment and was therefore unconstitutional. This historic decision marked the end of the "separate but equal" … and served as a catalyst for the expanding civil rights movement...
- ↑ "Essay: In defense of privacy". Time. July 15, 1966. Archived from the original on October 13, 2009. Retrieved October 31, 2009.
The biggest legal milestone in this field was last year's Supreme Court decision in Griswold v. Connecticut, which overthrew the state's law against the use of contraceptives as an invasion of marital privacy, and for the first time declared the "right of privacy" to be derived from the Constitution itself.
- ↑ Gibbs, Nancy (December 9, 1991). "America's Holy War". Time. Archived from the original on November 2, 2007. Retrieved October 31, 2009.
In the landmark 1962 case Engel v. Vitale, the high court threw out a brief nondenominational prayer composed by state officials that was recommended for use in New York State schools. 'It is no part of the business of government,' ruled the court, 'to compose official prayers for any group of the American people to recite.'
- ↑ Mattox, William R., Jr; Trinko, Katrina (August 17, 2009). "Teach the Bible? Of course". USA Today. Archived from the original on August 20, 2009. Retrieved October 31, 2009.
Public schools need not proselytize—indeed, must not—in teaching students about the Good Book … In Abington School District v. Schempp, decided in 1963, the Supreme Court stated that "study of the Bible or of religion, when presented objectively as part of a secular program of education," was permissible under the First Amendment.
{{cite news}}: CS1 maint: multiple names: authors list (link) - ↑ "The Law: The Retroactivity Riddle". Time. June 18, 1965. Archived from the original on April 23, 2008. Retrieved October 31, 2009.
Last week, in a 7 to 2 decision, the court refused for the first time to give retroactive effect to a great Bill of Rights decision—Mapp v. Ohio (1961).
- ↑ "The Supreme Court: Now Comes the Sixth Amendment". Time. April 16, 1965. Archived from the original on May 28, 2010. Retrieved October 31, 2009.
Sixth Amendment's right to counsel (Gideon v. Wainwright in 1963). … the court said flatly in 1904: 'The Sixth Amendment does not apply to proceedings in state criminal courts.' But in the light of Gideon … ruled Black, statements 'generally declaring that the Sixth Amendment does not apply to states can no longer be regarded as law.'
- ↑ "Guilt and Mr. Meese". The New York Times. January 31, 1987. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
1966 Miranda v. Arizona decision. That's the famous decision that made confessions inadmissible as evidence unless an accused person has been warned by police of the right to silence and to a lawyer, and waived it.
- ↑ Graglia, Lino A. (October 2008). "The Antitrust Revolution" (PDF). Engage. 9 (3). Archived from the original (PDF) on June 21, 2017. Retrieved February 6, 2016.
- ↑ Earl M. Maltz, The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law (University Press of Kansas; 2016)
- ↑ O'Connor, Karen (January 22, 2009). "Roe v. Wade: On Anniversary, Abortion Is out of the Spotlight". U.S. News & World Report. Archived from the original on March 26, 2009. Retrieved October 31, 2009.
The shocker, however, came in 1973, when the Court, by a vote of 7 to 2, relied on Griswold's basic underpinnings to rule that a Texas law prohibiting abortions in most situations was unconstitutional, invalidating the laws of most states. Relying on a woman's right to privacy...
- ↑ "Bakke Wins, Quotas Lose". Time. July 10, 1978. Archived from the original on October 14, 2010. Retrieved October 31, 2009.
Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of 'affirmative action'…
- ↑ "Time to Rethink Buckley v. Valeo". The New York Times. November 12, 1998. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
...Buckley v. Valeo. The nation's political system has suffered ever since from that decision, which held that mandatory limits on campaign spending unconstitutionally limit free speech. The decision did much to promote the explosive growth of campaign contributions from special interests and to enhance the advantage incumbents enjoy over underfunded challengers.
- ↑ 54.0 54.1 "Supreme Court Justice Rehnquist's Key Decisions". The Washington Post. June 29, 1972. Archived from the original on May 25, 2010. Retrieved October 31, 2009.
Furman v. Georgia … Rehnquist dissents from the Supreme Court conclusion that many state laws on capital punishment are capricious and arbitrary and therefore unconstitutional.
- ↑ History of the Court, in Hall, Ely Jr., Grossman, and Wiecek (eds.) The Oxford Companion to the Supreme Court of the United States. Oxford University Press, 1992, ISBN 0-19-505835-6
- ↑ "A Supreme Revelation". The Wall Street Journal. April 19, 2008. Archived from the original on August 24, 2017. Retrieved October 31, 2009.
Thirty-two years ago, Justice John Paul Stevens sided with the majority in a famous "never mind" ruling by the Supreme Court. Gregg v. Georgia, in 1976, overturned Furman v. Georgia, which had declared the death penalty unconstitutional only four years earlier.
- ↑ Greenhouse, Linda (January 8, 2009). "The Chief Justice on the Spot". The New York Times. Archived from the original on May 12, 2011. Retrieved October 31, 2009.
The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments.
- ↑ Greenhouse, Linda (September 4, 2005). "William H. Rehnquist, Chief Justice of Supreme Court, Is Dead at 80". The New York Times. Archived from the original on April 2, 2015. Retrieved October 31, 2009.
United States v. Lopez in 1995 raised the stakes in the debate over federal authority even higher. The decision declared unconstitutional a Federal law, the Gun Free School Zones Act of 1990, that made it a federal crime to carry a gun within 1,000 feet of a school.
- ↑ Greenhouse, Linda (June 12, 2005). "The Rehnquist Court and Its Imperiled States' Rights Legacy". The New York Times. Archived from the original on May 5, 2011. Retrieved October 31, 2009.
Intrastate activity that was not essentially economic was beyond Congress's reach under the Commerce Clause, Chief Justice Rehnquist wrote for the 5-to-4 majority in United States v. Morrison.
- ↑ Greenhouse, Linda (March 22, 2005). "Inmates Who Follow Satanism and Wicca Find Unlikely Ally". The New York Times. Archived from the original on March 26, 2014. Retrieved October 31, 2009.
His (Rehnquist's) reference was to a landmark 1997 decision, City of Boerne v. Flores, in which the court ruled that the predecessor to the current law, the Religious Freedom Restoration Act, exceeded Congress's authority and was unconstitutional as applied to the states.
- ↑ Amar, Vikram David (July 27, 2005). "Casing John Roberts". The New York Times. Archived from the original on October 14, 2008. Retrieved October 31, 2009.
Seminole Tribe v. Florida (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result.
- ↑ Greenhouse, Linda (April 1, 1999). "Justices Seem Ready to Tilt More Toward States in Federalism". The New York Times. Archived from the original on May 11, 2011. Retrieved October 31, 2009.
The argument in this case, Alden v. Maine, No. 98-436, proceeded on several levels simultaneously. On the surface … On a deeper level, the argument was a continuation of the Court's struggle over an even more basic issue: the Government's substantive authority over the states.
- ↑ Lindenberger, Michael A. "The Court's Gay Rights Legacy". Time. Archived from the original on June 29, 2008. Retrieved October 31, 2009.
The decision in the Lawrence v. Texas case overturned convictions against two Houston men, whom police had arrested after busting into their home and finding them engaged in sex. And for the first time in their lives, thousands of gay men and women who lived in states where sodomy had been illegal were free to be gay without being criminals.
- ↑ Justice Sotomayor (July 16, 2009). "Retire the 'Ginsburg rule' – The 'Roe' recital". USA Today. Archived from the original on August 22, 2009. Retrieved October 31, 2009.
The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.
- ↑ Kamiya, Gary (July 4, 2001). "Against the Law". Salon. Archived from the original on October 13, 2012. Retrieved November 21, 2012.
...the remedy was far more harmful than the problem. By stopping the recount, the high court clearly denied many thousands of voters who cast legal votes, as defined by established Florida law, their constitutional right to have their votes counted. … It cannot be a legitimate use of law to disenfranchise legal voters when recourse is available. …
- ↑ Krauthammer, Charles (December 18, 2000). "The Winner in Bush v. Gore?". Time. Archived from the original on November 22, 2010. Retrieved October 31, 2009.
Re-enter the Rehnquist court. Amid the chaos, somebody had to play Daddy. … the Supreme Court eschewed subtlety this time and bluntly stopped the Florida Supreme Court in its tracks—and stayed its willfulness. By, mind you, …
- ↑ Babington, Charles; Baker, Peter (September 30, 2005). "Roberts Confirmed as 17th Chief Justice". The Washington Post. Archived from the original on January 16, 2010. Retrieved November 1, 2009.
John Glover Roberts Jr. was sworn in yesterday as the 17th chief justice of the United States, enabling President Bush to put his stamp on the Supreme Court for decades to come, even as he prepares to name a second nominee to the nine-member court.
- ↑ Greenhouse, Linda (July 1, 2007). "In Steps Big and Small, Supreme Court Moved Right". The New York Times. Archived from the original on April 17, 2009. Retrieved November 1, 2009.
It was the Supreme Court that conservatives had long yearned for and that liberals feared … This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.
- ↑ Liptak, Adam (July 24, 2010). "Court Under Roberts Is Most Conservative in Decades". The New York Times. Archived from the original on August 24, 2021. Retrieved February 1, 2019.
When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term. In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.
- ↑ Caplan, Lincoln (October 10, 2016). "A new era for the Supreme Court: the transformative potential of a shift in even one seat". The American Prospect. Archived from the original on February 2, 2019. Retrieved February 1, 2019.
The Court has gotten increasingly more conservative with each of the Republican-appointed chief justices—Warren E. Burger (1969–1986), William H. Rehnquist (1986–2005), and John G. Roberts Jr. (2005–present). All told, Republican presidents have appointed 12 of the 16 most recent justices, including the chiefs. During Roberts's first decade as chief, the Court was the most conservative in more than a half-century and likely the most conservative since the 1930s.
- ↑ Savage, Charlie (July 14, 2009). "Respecting Precedent, or Settled Law, Unless It's Not Settled". The New York Times. Archived from the original on May 11, 2011. Retrieved November 1, 2009.
Gonzales v. Carhart—in which the Supreme Court narrowly upheld a federal ban on the late-term abortion procedure opponents call "partial birth abortion"—to be settled law.
- ↑ "A Bad Day for Democracy". The Christian Science Monitor. January 22, 2010. Archived from the original on January 25, 2010. Retrieved January 22, 2010.
- ↑ Barnes, Robert (October 1, 2009). "Justices to Decide if State Gun Laws Violate Rights". The Washington Post. Archived from the original on April 23, 2018. Retrieved November 1, 2009.
The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5 to 4 opinion in District of Columbia v. Heller...
- ↑ Greenhouse, Linda (April 18, 2008). "Justice Stevens Renounces Capital Punishment". The New York Times. Archived from the original on December 11, 2008. Retrieved November 1, 2009.
His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic.
- ↑ Greenhouse, Linda (June 26, 2008). "Supreme Court Rejects Death Penalty for Child Rape". The New York Times. Archived from the original on September 13, 2019. Retrieved November 1, 2009.
The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday … The 5-to-4 decision overturned death penalty laws in Louisiana and five other states.
- ↑ McGinnis, John O. "Essays on Article II: Appointments Clause". The Heritage Guide To The Constitution. Heritage Foundation. Archived from the original on August 22, 2020. Retrieved June 19, 2019.
- ↑ "Qualifications To Become A Supreme Court Justice". The Law Dictionary. Retrieved July 8, 2023.
- ↑ "Frequently Asked Questions: General Information - Supreme Court of the United States". www.supremecourt.gov. Retrieved July 8, 2023.
- ↑ "United States Senate. "Nominations"". Archived from the original on April 7, 2019. Retrieved February 16, 2018.
- ↑ Brunner, Jim (March 24, 2017). "Sen. Patty Murray will oppose Neil Gorsuch for Supreme Court". The Seattle Times. Archived from the original on April 10, 2017. Retrieved April 9, 2017.
In a statement Friday morning, Murray cited Republicans' refusal to confirm or even seriously consider President Obama's nomination of Judge Merrick Garland, a similarly well-qualified jurist – and went on to lambaste President Trump's conduct in his first few months in office. [...] And Murray added she's 'deeply troubled' by Gorsuch's 'extreme conservative perspective on women's health', citing his 'inability' to state a clear position on Roe v. Wade, the landmark abortion-legalization decision, and his comments about the 'Hobby Lobby' decision allowing employers to refuse to provide birth-control coverage.
- ↑ Flegenheimer, Matt (April 6, 2017). "Senate Republicans Deploy 'Nuclear Option' to Clear Path for Gorsuch". The New York Times. Archived from the original on October 2, 2018. Retrieved April 7, 2017.
After Democrats held together Thursday morning and filibustered President Trump's nominee, Republicans voted to lower the threshold for advancing Supreme Court nominations from 60 votes to a simple majority.
- ↑ "U.S. Senate: Supreme Court Nominations, Present-1789". United States Senate. Archived from the original on December 9, 2020. Retrieved April 8, 2017.
- ↑ See 5 U.S.C. § 2902.
- ↑ 28 U.S.C. § 4. If two justices are commissioned on the same date, then the oldest one has precedence.
- ↑ Mears, Bill (August 6, 2010). "Facts about Supreme Court oath ceremonies". CNN. Retrieved May 17, 2022.
- ↑ Satola, James W. (December 2017). "Mr. Justice Stanton" (PDF). The Federal Lawyer. Arlington, Virginia: Federal Bar Association. pp. 5–9, 76–77. ISSN 1080-675X. Retrieved May 17, 2022.
- ↑ "Justices 1789 to Present". Supreme Court of the United States. Retrieved May 17, 2022.
- ↑ Balkin, Jack M. "The passionate intensity of the confirmation process". Jurist. Archived from the original on December 18, 2007. Retrieved February 13, 2008.
- ↑ "The Stakes of the 2016 Election Just Got Much, Much Higher". The Huffington Post. Archived from the original on February 14, 2016. Retrieved February 14, 2016.
- ↑ McMillion, Barry J. (October 19, 2015). "Supreme Court Appointment Process: Senate Debate and Confirmation Vote" (PDF). Congressional Research Service. Archived (PDF) from the original on December 28, 2015. Retrieved February 14, 2016.
- ↑ Hall, Kermit L., ed. (1992). "Appendix Two". Oxford Companion to the Supreme Court of the United States. Oxford University Press. pp. 965–971. ISBN 978-0-19-505835-2.
- ↑ See Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004), which concerned the recess appointment of William H. Pryor Jr. Concurring in denial of certiorari, Justice Stevens observed that the case involved "the first such appointment of an Article III judge in nearly a half century." 544 U.S. 942 (2005), Stevens, J., concurring in denial of certiorari.
- ↑ 93.0 93.1 Fisher, Louis (September 5, 2001). "Recess Appointments of Federal Judges" (PDF). CRS Report for Congress. Congressional Research Service. RL31112: 16. Archived (PDF) from the original on April 17, 2020. Retrieved August 6, 2010.
Resolved, That it is the sense of the Senate that the making of recess appointments to the Supreme Court of the United States may not be wholly consistent with the best interests of the Supreme Court, the nominee who may be involved, the litigants before the Court, nor indeed the people of the United States, and that such appointments, therefore, should not be made except under unusual circumstances and for the purpose of preventing or ending a demonstrable breakdown in the administration of the Court's business.
- ↑ The resolution passed by a vote of 48 to 37, mainly along party lines; Democrats supported the resolution 48–4, and Republicans opposed it 33–0.
- ↑ "National Relations Board v. Noel Canning et al" (PDF). pp. 34, 35. Archived (PDF) from the original on December 12, 2020. Retrieved June 27, 2017. The Court continued, "In our view, however, the pro forma sessions count as sessions, not as periods of recess. We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business. The Senate met that standard here." Later, the opinion states: "For these reasons, we conclude that we must give great weight to the Senate's own determination of when it is and when it is not in session. But our deference to the Senate cannot be absolute. When the Senate is without the capacity to act, under its own rules, it is not in session even if it so declares."
- ↑ "Obama Won't Appoint Scalia Replacement While Senate Is Out This Week". NPR. Archived from the original on December 3, 2020. Retrieved January 25, 2017.
- ↑ Prakash, Saikrishna; Smith, Steven D. (2006). "(Mis)Understanding Good-Behavior Tenure". The Yale Law Journal. 116 (1): 159–169. doi:10.2307/20455716. JSTOR 20455716. S2CID 52212217. Retrieved April 29, 2022.
- ↑ Garnett, Richard W.; Strauss, David A. "Article III, Section One". Philadelphia, Pennsylvania: National Constitution Center. Retrieved April 29, 2022.
- ↑ "How the Federal Courts Are Organized: Can a federal judge be fired?". Federal Judicial Center. fjc.gov. Archived from the original on September 15, 2012. Retrieved March 18, 2012.
- ↑ Appel, Jacob M. (August 22, 2009). "Anticipating the Incapacitated Justice". The Huffington Post. Archived from the original on August 27, 2009. Retrieved August 23, 2009.
- ↑ "Impeachment Trial of Justice Samuel Chase, 1804–05". Washington, D.C.: Senate Historical Office. Retrieved April 29, 2022.
- ↑ Yarbrough, Tinsley E. (1992). John Marshall Harlan: Great Dissenter of the Warren Court. Oxford University Press. p. 334. ISBN 0-19-506090-3. Retrieved April 12, 2022.
- ↑ Comiskey, Michael (2008). "The Supreme Court Appointment Process: Lessons from Filling the Rehnquist and O'Connor Vacancies". PS: Political Science and Politics. 41 (2): 355–358. doi:10.1017/S1049096508080542. JSTOR 20452185. S2CID 154590128. Retrieved April 13, 2022.
- ↑ "The Court as an Institution". Washington, D.C.: Supreme Court of the United States. Retrieved May 6, 2022.
- ↑ Federal Judiciary Act (1789) Archived November 5, 2020, at the Wayback Machine, National Archives and Records Administration, retrieved September 12, 2017
- ↑ "Judges on Horseback" (PDF). U.S. Courts Library – 8th Circuit. Archived (PDF) from the original on November 3, 2020. Retrieved April 4, 2021.
- ↑ "Why does the Supreme Court have nine Justices? | Constitution Center".
- ↑ Template:Usstat
- ↑ Mintz, S. (2007). "The New Deal in Decline". Digital History. University of Houston. Archived from the original on May 5, 2008. Retrieved October 27, 2009.
- ↑ Hodak, George (2007). "February 5, 1937: FDR Unveils Court Packing Plan". ABAjournal.com. American Bar Association. Archived from the original on August 15, 2011. Retrieved January 29, 2009.
- ↑ "TSHA | Court-Packing Plan of 1937". Archived from the original on May 6, 2021. Retrieved April 4, 2021.
- ↑ "Some Democrats Want to Make the Supreme Court Bigger. Here's the History of Court Packing". October 17, 2019. Archived from the original on February 1, 2021. Retrieved April 4, 2021.
- ↑ "How FDR lost his brief war on the Supreme Court – National Constitution Center". Archived from the original on March 29, 2021. Retrieved April 4, 2021.
- ↑ "Pelosi has "no plans" to bring bill expanding Supreme Court to House floor". CBS News. April 15, 2021.
- ↑ "Is the Supreme Court confirmation process irreparably broken? Some senators say yes". NBC News. April 2, 2022.
- ↑ Kruzel, John (December 7, 2021). "Biden Supreme Court study panel unanimously approves final report". The Hill. Retrieved October 8, 2022.
- ↑ ""Court Packing": Legislative Control over the Size of the Supreme Court". Archived from the original on April 15, 2021. Retrieved April 4, 2021.
- ↑ "Is Court Packing Constitutional? – Mike Rappaport". November 6, 2020. Archived from the original on April 14, 2021. Retrieved April 4, 2021.
- ↑ Cathey, Libby. "Senate confirms Judge Ketanji Brown Jackson to Supreme Court in historic vote". ABC News. Retrieved April 7, 2022.
- ↑ 120.0 120.1 "Current Members". www.supremecourt.gov. Washington, D.C.: Supreme Court of the United States. Archived from the original on July 21, 2011. Retrieved October 21, 2018.
- ↑ Walthr, Matthew (April 21, 2014). "Sam Alito: A Civil Man". The American Spectator. Archived from the original on May 22, 2017. Retrieved June 15, 2017 – via The ANNOTICO Reports.
- ↑ DeMarco, Megan (February 14, 2008). "Growing up Italian in Jersey: Alito reflects on ethnic heritage". The Times. Trenton, New Jersey. Archived from the original on July 30, 2017. Retrieved June 15, 2017.
- ↑ Neil Gorsuch was raised Catholic, but attends an Episcopalian church. It is unclear if he considers himself a Catholic or a Protestant. Burke, Daniel (March 22, 2017). "What is Neil Gorsuch's religion? It's complicated". CNN. Archived from the original on June 25, 2017. Retrieved April 7, 2017.
Springer said she doesn't know whether Gorsuch considers himself a Catholic or an Episcopalian. "I have no evidence that Judge Gorsuch considers himself an Episcopalian, and likewise no evidence that he does not." Gorsuch's younger brother, J.J., said he too has "no idea how he would fill out a form. He was raised in the Catholic Church and confirmed in the Catholic Church as an adolescent, but he has been attending Episcopal services for the past 15 or so years."
- ↑ "Religion of the Supreme Court". adherents.com. January 31, 2006. Archived from the original on April 5, 2001. Retrieved July 9, 2010.
{{cite web}}: CS1 maint: unfit URL (link) - ↑ Segal, Jeffrey A.; Spaeth, Harold J. (2002). The Supreme Court and the Attitudinal Model Revisited. Cambridge Univ. Press. p. 183. ISBN 978-0-521-78971-4.
- ↑ Schumacher, Alvin. "Roger B. Taney". Encyclopædia Britannica. Archived from the original on August 24, 2017. Retrieved May 3, 2017.
He was the first Roman Catholic to serve on the Supreme Court.
- ↑ 127.0 127.1 127.2 127.3 127.4 "Frequently Asked Questions (FAQ)". Supreme Court of the United States. Archived from the original on March 20, 2017. Retrieved May 3, 2017.
- ↑ "Biden's court pick Ketanji Brown Jackson has navigated a path few Black women have". The Washington Post. ISSN 0190-8286. Retrieved July 8, 2022.
- ↑ Mark Sherman, Is Supreme Court in need of regional diversity? Archived August 14, 2020, at the Wayback Machine (May 1, 2010).
- ↑ Shane, Scott; Eder, Steve; Ruiz, Rebecca R.; Liptak, Adam; Savage, Charlie; Protess, Ben (July 15, 2018). "Influential Judge, Loyal Friend, Conservative Warrior – and D.C. Insider". The New York Times. p. A1. Archived from the original on July 16, 2018. Retrieved July 16, 2018.
- ↑ O'Brien, David M. (2003). Storm Center: The Supreme Court in American Politics (6th ed.). W.W. Norton & Company. p. 46. ISBN 978-0-393-93218-8.
- ↑ de Vogue, Ariane (October 22, 2016). "Clarence Thomas' Supreme Court legacy". CNN. Archived from the original on April 2, 2017. Retrieved May 3, 2017.
- ↑ 133.0 133.1 "The Four Justices". Smithsonian Institution. October 21, 2015. Archived from the original on August 20, 2016. Retrieved May 3, 2017.
- ↑ Preston, Matthew (April 15, 2022). "Ketanji Brown Jackson's Historic Rise Leaves Just One Military Veteran on the Supreme Court". USA Today. Archived from the original on April 15, 2022. Retrieved October 12, 2022.
- ↑ Shurtleff, Kathy (May 12, 2021). "In Celebration of Armed Forces Day". Washington, D.C.: Supreme Court Historical Society. Retrieved October 12, 2022.
- ↑ "Sandra Day O'Connor, first woman on the Supreme Court, withdraws from public life". CNBC. October 22, 2018. Retrieved June 30, 2022.
For more than a decade after leaving the court in 2006, O'Connor kept up an active schedule: serving as a visiting federal appeals court judge, speaking on issues she cared about and founding her own education organization. But the 88-year-old, for more than two decades often the deciding vote in important cases, is now fully retired.
- ↑ David N. Atkinson, Leaving the Bench (University Press of Kansas 1999) ISBN 0-7006-0946-6
- ↑ Greenhouse, Linda (September 9, 2010). "An Invisible Chief Justice". The New York Times. Archived from the original on November 25, 2020. Retrieved September 9, 2010.
Had [O'Connor] anticipated that the chief justice would not serve out the next Supreme Court term, she told me after his death, she would have delayed her own retirement for a year rather than burden the court with two simultaneous vacancies. […] Her reason for leaving was that her husband, suffering from Alzheimer's disease, needed her care at home.
- ↑ Ward, Artemus (2003). Deciding to Leave: The Politics of Retirement from the United States Supreme Court (PDF). SUNY Press. p. 9. ISBN 978-0-7914-5651-4. Archived (PDF) from the original on February 17, 2021. Retrieved January 31, 2013.
One byproduct of the increased [retirement benefit] provisions [in 1954], however has been a dramatic rise in the number of justices engaging in succession politics by trying to time their departures to coincide with a compatible president. The most recent departures have been partisan, some more blatantly than others, and have bolstered arguments to reform the process. A second byproduct has been an increase in justices staying on the Court past their ability to adequately contribute.
- ↑ Stolzenberg, Ross M.; Lindgren, James (May 2010). "Retirement and Death in Office of U.S. Supreme Court Justices". Demography. 47 (2): 269–298. doi:10.1353/dem.0.0100. PMC 3000028. PMID 20608097.
If the incumbent president is of the same party as the president who nominated the justice to the Court, and if the incumbent president is in the first two years of a four-year presidential term, then the justice has odds of resignation that are about 2.6 times higher than when these two conditions are not met.
- ↑ See for example Sandra Day O'Connor: How the first woman on the Supreme Court became its most influential justice, by Joan Biskupic, Harper Collins, 2005, p. 105. Also Rookie on the Bench: The Role of the Junior Justice by Clare Cushman (2008). Journal of Supreme Court History 32 (3): 282–296.
- ↑ "Judicial Compensation". United States Courts. Archived from the original on November 23, 2021. Retrieved December 6, 2021.
- ↑ Hasen, Richard L. (May 11, 2019). "Polarization and the Judiciary". Annual Review of Political Science. 22 (1): 261–276. doi:10.1146/annurev-polisci-051317-125141. ISSN 1094-2939.
- ↑ Harris, Allison P.; Sen, Maya (May 11, 2019). "Bias and Judging". Annual Review of Political Science. 22 (1): 241–259. doi:10.1146/annurev-polisci-051617-090650. ISSN 1094-2939.
- ↑ Liptak, Adam (February 25, 2022). "Judge Jackson's Rulings: Detailed, Methodical and Leaning Left". The New York Times. ISSN 0362-4331. Retrieved May 3, 2023.
- ↑ Cope, Kevin; Fischman, Joshua (September 5, 2018). "It's hard to find a federal judge more conservative than Brett Kavanaugh". The Washington Post. Archived from the original on December 10, 2020. Retrieved January 11, 2019.
Kavanaugh served a dozen years on the D.C. Circuit Court of Appeals, a court viewed as first among equals of the 12 federal appellate courts. Probing nearly 200 of Kavanaugh's votes and over 3000 votes by his judicial colleagues, our analysis shows that his judicial record is significantly more conservative than that of almost every other judge on the D.C. Circuit. That doesn't mean that he'd be the most conservative justice on the Supreme Court, but it strongly suggests that he is no judicial moderate.
- ↑ Chamberlain, Samuel (July 9, 2018). "Trump nominates Brett Kavanaugh to the Supreme Court". Fox News. Archived from the original on December 7, 2020. Retrieved January 11, 2019.
Trump may have been swayed in part because of Kavanaugh's record of being a reliable conservative on the court – and reining in dozens of administrative decisions of the Obama White House. There are some question marks for conservatives, particularly an ObamaCare ruling years ago.
- ↑ Thomson-Devaux, Amelia; Bronner, Laura; Wiederkehr, Anna (October 14, 2020). "How conservative is Amy Coney Barrett?". FiveThirtyEight. Archived from the original on December 11, 2020. Retrieved October 27, 2020.
We can look to her track record on the 7th U.S. Circuit Court of Appeals, though, for clues. Barrett has served on that court for almost three years now, and two different analyses of her rulings point to the same conclusion: Barrett is one of the more conservative judges on the circuit — and maybe even the most conservative.
- ↑ Betz, Bradford (March 2, 2019). "Chief Justice Roberts' recent votes raise doubts about 'conservative revolution' on Supreme Court". Fox News. Archived from the original on November 18, 2020. Retrieved April 20, 2019.
Erwin Chemerinsky, a law professor at the University of California at Berkeley, told Bloomberg that Roberts' recent voting record may indicate that he is taking his role as the median justice "very seriously" and that the recent period was "perhaps the beginning of his being the swing justice."
- ↑ Roeder, Oliver (October 6, 2018). "How Kavanaugh will change the Supreme Court". FiveThirtyEight. Archived from the original on December 7, 2020. Retrieved April 20, 2019.
Based on what we know about measuring the ideology of justices and judges, the Supreme Court will soon take a hard and quick turn to the right. It's a new path that is likely to last for years. Chief Justice John Roberts, a George W. Bush appointee, will almost certainly become the new median justice, defining the court's new ideological center.
- ↑ Roche, Darragh (October 5, 2021). "Brett Kavanaugh Is Supreme Court's Ideological Median as New Term Begins". Newsweek. Archived from the original on October 30, 2021. Retrieved October 30, 2021.
- ↑ Goldstein, Tom (June 30, 2010). "Everything you read about the Supreme Court is wrong (except here, maybe)". SCOTUSblog. Archived from the original on July 7, 2010. Retrieved July 7, 2010.
- ↑ Among the examples mentioned by Goldstein for the 2009 term were:
- Dolan v. United States, 560 U.S. 605 (2010), which interpreted judges' prerogatives broadly, typically a "conservative" result. The majority consisted of the five junior Justices: Thomas, Ginsburg, Breyer, Alito, and Sotomayor.
- Magwood v. Patterson, 561 U.S. 320 (2010), which expanded habeas corpus petitions, a "liberal" result, in an opinion by Thomas, joined by Stevens, Scalia, Breyer, and Sotomayor.
- Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U.S. 393 (2010), which yielded a pro-plaintiff result in an opinion by Scalia joined by Roberts, Stevens, Thomas, and Sotomayor.
- ↑ "October 2011 Term, Five to Four Decisions" (PDF). SCOTUSblog. June 30, 2012. Archived (PDF) from the original on October 9, 2020. Retrieved July 2, 2012.
- ↑ 155.0 155.1 "Final October 2010 Stat Pack available". SCOTUSblog. June 27, 2011. Archived from the original on July 1, 2011. Retrieved June 28, 2011.
- ↑ "End of Term statistical analysis– October 2010" (PDF). SCOTUSblog. July 1, 2011. Archived (PDF) from the original on September 17, 2011. Retrieved July 2, 2011.
- ↑ "Cases by Vote Split" (PDF). SCOTUSblog. June 27, 2011. Archived (PDF) from the original on October 26, 2011. Retrieved June 28, 2011.
- ↑ "Justice agreement – Highs and Lows" (PDF). SCOTUSblog. June 27, 2011. Archived (PDF) from the original on October 18, 2020. Retrieved June 28, 2011.
- ↑ Bhatia, Kedar (June 29, 2018). "Final October Term 2017 Stat Pack and key takeaways". SCOTUSBlog. Archived from the original on June 29, 2018. Retrieved June 29, 2018.
- ↑ 160.0 160.1 Bhatia, Kedar S. (June 29, 2018). "Stat Pack for October Term 2017" (PDF). SCOTUSBlog. pp. 17–18. Archived (PDF) from the original on November 25, 2020. Retrieved June 29, 2018.
- ↑ Feldman, Adam (June 28, 2019). "Final Stat Pack for October Term 2018". SCOTUSBlog. Archived from the original on June 29, 2019. Retrieved June 30, 2019.
- ↑ 162.0 162.1 162.2 Feldman, Adam (June 28, 2019). "Stat Pack for October Term 2018" (PDF). pp. 5, 19, 23. Archived (PDF) from the original on November 23, 2019. Retrieved June 30, 2019.
- ↑ Gou, Angie (July 3, 2022). "As unanimity declines, conservative majority's power runs deeper than the blockbuster cases". SCOTUSBlog. Retrieved July 3, 2022.
- ↑ 164.0 164.1 164.2 164.3 164.4 "Plan Your Trip". US Senator John McCain. October 24, 2009. Archived from the original on October 30, 2009. Retrieved October 24, 2009.
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- ↑ "Visiting-Capitol-Hill". docstoc. October 24, 2009. Archived from the original on August 21, 2016. Retrieved October 24, 2009.
- ↑ "How The Court Works". The Supreme Court Historical Society. October 24, 2009. Archived from the original on February 3, 2014. Retrieved January 31, 2014.
- ↑ 168.0 168.1 "Calendar Info/Key". SupremeCourt.gov. Archived from the original on June 24, 2023. Retrieved July 6, 2023.
- ↑
- ↑ Liptak, Adam (March 21, 2016). "Supreme Court Declines to Hear Challenge to Colorado's Marijuana Laws". The New York Times. Archived from the original on May 31, 2017. Retrieved April 27, 2017.
- ↑
- ↑ United States v. Shipp, 203 U.S. 563 (Supreme Court of the United States 1906).
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On May 28, [U.S. Attorney General William] Moody did something unprecedented, then and now. He filed a petition charging Sheriff Shipp, six deputies and 19 leaders of the lynch mob with contempt of the Supreme Court. The justices unanimously approved the petition and agreed to retain original jurisdiction in the matter. ... May 24, 1909, stands out in the annals of the U.S. Supreme Court. On that day, the court announced a verdict after holding the first and only criminal trial in its history.
- ↑ 174.0 174.1 Hindley, Meredith (November 2014). "Chattanooga versus the Supreme Court: The Strange Case of Ed Johnson". Humanities. 35 (6). Archived from the original on April 27, 2017. Retrieved April 27, 2017.
United States v. Shipp stands out in the history of the Supreme Court as an anomaly. It remains the only time the Court has conducted a criminal trial.
- ↑ Linder, Douglas. "United States v. Shipp (U.S. Supreme Court, 1909)". Famous Trials. Archived from the original on April 27, 2017. Retrieved April 27, 2017.
- ↑ McKusick, Vincent L. (1993). "Discretionary Gatekeeping: The Supreme Court's Management of Its Original Jurisdiction Docket Since 1961". Maine Law Review. 45: 185. Retrieved February 17, 2022.
- ↑ 28 U.S.C. § 1254
- ↑ 28 U.S.C. § 1259
- ↑ 28 U.S.C. § 1258
- ↑ 28 U.S.C. § 1260
- ↑ 181.0 181.1 28 U.S.C. § 1257
- ↑ Brannock, Steven; Weinzierl, Sarah (2003). "Confronting a PCA: Finding a Path Around a Brick Wall" (PDF). Stetson Law Review. XXXII: 368–369, 387–390. Archived (PDF) from the original on August 4, 2016. Retrieved April 27, 2017.
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- ↑ Glick, Joshua (April 2003). "On the road: The Supreme Court and the history of circuit riding" (PDF). Cardozo Law Review. 24. Archived from the original (PDF) on September 25, 2018. Retrieved September 24, 2018.
Gradually, however, circuit riding lost support. The Court's increasing business in the nation's capital following the Civil War made the circuit riding seem anachronistic and impractical and a slow shift away from the practice began. The Judiciary Act of 1869 established a separate circuit court judiciary. The justices retained nominal circuit riding duties until 1891 when the Circuit Court of Appeals Act was passed. With the Judicial Code of 1911, Congress officially ended the practice. The struggle between the legislative and judicial branches over circuit riding was finally concluded.
- ↑ Supreme Court Rule 44 (1980 revised) (titled "Stays"), published at 445 U.S. 985, 1038. Also available at the Supreme Court's website at Historical Rules of the Supreme Court, 1980 revised.
- ↑ Supreme Court Rule 23 (1989) (titled "Stays"; moved from Rule 44), published at 493 U.S. 1097, 1125. Also available at the Supreme Court's website at Historical Rules of the Supreme Court, 1989. And "Injunction, writ of" was removed from the index. Compare 445 U.S. 1064 with 493 U.S. 1172.
- ↑ Daniel Gonen, "Judging in Chambers: The Powers of a Single Justice of the Supreme Court", 76 U. Cinn. L. Rev. 1159, 1168–70 (2008).
- ↑ Daniel Gonen, "Judging in Chambers: The Powers of a Single Justice of the Supreme Court", 76 U. Cinn. L. Rev. 1159, 1163 n. 25 (2008).
- ↑ ("The circuit justice, however, shall have precedence over all the circuit judges and shall preside at any session which he attends.").
- ↑ "Miscellaneous Order (09/28/2022)" (PDF). Supreme Court of the United States. Retrieved September 28, 2022.
- ↑ "The Court and Its Procedures", Supreme Court of the United States, retrieved June 27, 2022
- ↑ 28 U.S.C. § 1254
- ↑ 28 U.S.C. § 1257; see also Adequate and independent state grounds
- ↑ James, Robert A. (1998). "Instructions in Supreme Court Jury Trials" (PDF). The Green Bag. 2d. 1 (4): 378. ISSN 1095-5216. Archived (PDF) from the original on August 18, 2013. Retrieved February 5, 2013.
- ↑ 28 U.S.C. § 1872 See Georgia v. Brailsford, 3 U.S. 1 (1794), in which the Court conducted a jury trial.
- ↑ Shelfer, Lochlan F. (October 2013). "Special Juries in the Supreme Court". Yale Law Journal. 123 (1): 208–252. ISSN 0044-0094. Archived from the original on June 30, 2017. Retrieved October 2, 2018.
- ↑ Mauro, Tony (October 21, 2005). "Roberts Dips Toe into Cert Pool". Legal Times. Archived from the original on June 2, 2009. Retrieved October 31, 2007.
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- ↑ Liptak, Adam (September 25, 2008). "A Second Justice Opts Out of a Longtime Custom: The 'Cert. Pool'". The New York Times. Archived from the original on December 11, 2008. Retrieved October 17, 2008.
- ↑ Liptak, Adam (May 1, 2017). "Gorsuch, in Sign of Independence, Is Out of Supreme Court's Clerical Pool". The New York Times. Archived from the original on May 2, 2017. Retrieved May 2, 2017.
- ↑ See the arguments on the constitutionality of the Patient Protection and Affordable Care Act took place over three days and lasted over six hours, covering several issues; the arguments for Bush v. Gore were 90 minutes long; oral arguments in United States v. Nixon lasted three hours; and the Pentagon papers case was given a two-hour argument. Christy, Andrew (November 15, 2011). "'Obamacare' will rank among the longest Supreme Court arguments ever". NPR. Archived from the original on November 16, 2011. Retrieved March 31, 2011. The longest modern-day oral arguments were in the case of California v. Arizona, in which oral arguments lasted over sixteen hours over four days in 1962.Bobic, Igor (March 26, 2012). "Oral arguments on health reform longest in 45 years". Talking Points Memo. Archived from the original on February 4, 2014. Retrieved January 31, 2014.
- ↑ "Supreme Court gives lawyers 2 minutes with no interruptions". CNN. October 3, 2019. Retrieved November 20, 2022.
- ↑ Glazer, Eric M.; Zachary, Michael (February 1997). "Joining the Bar of the U.S. Supreme Court". Volume LXXI, No. 2. Florida Bar Journal. p. 63. Archived from the original on April 5, 2014. Retrieved February 3, 2014.
- ↑ Gresko, Jessica (March 24, 2013). "For lawyers, the Supreme Court bar is vanity trip". Florida Today. Melbourne, Florida. pp. 2A. Archived from the original on March 23, 2013.
- ↑ "How The Court Works; Library Support". The Supreme Court Historical Society. Archived from the original on February 21, 2014. Retrieved February 3, 2014.
- ↑ See generally, Tushnet, Mark, ed. (2008) I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases, Malaysia: Beacon Press, pp. 256, ISBN 978-0-8070-0036-6
- ↑ Kessler, Robert. "Why Aren't Cameras Allowed at the Supreme Court Again?". The Atlantic. Archived from the original on March 25, 2017. Retrieved March 24, 2017.
- ↑ 28 U.S.C. § 1
- ↑ 28 U.S.C. § 2109
- ↑ Pepall, Lynne; Richards, Daniel L.; Norman, George (1999). Industrial Organization: Contemporary Theory and Practice. Cincinnati: South-Western College Publishing. pp. 11–12.
- ↑ "Bound Volumes". Supreme Court of the United States. Archived from the original on January 8, 2019. Retrieved January 9, 2019.
- ↑ "Cases adjudged in the Supreme Court at October Term, 2012 – March 26 through June 13, 2013" (PDF). United States Reports. 569. 2018. Archived (PDF) from the original on March 31, 2021. Retrieved January 9, 2019.
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- ↑ "Supreme Court Research Guide". law.georgetown.edu. Georgetown Law Library. Archived from the original on August 22, 2012. Retrieved August 22, 2012.
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- ↑ Mendelson, Wallace (1992). "Separation of Powers". In Hall, Kermit L. (ed.). The Oxford Companion to the Supreme Court of the United States. Oxford University Press. p. 775. ISBN 978-0-19-505835-2.
- ↑ The American Conflict by Horace Greeley (1873), p. 106; also in The Life of Andrew Jackson (2001) by Robert Vincent Remini
- ↑ Brokaw, Tom; Stern, Carl (July 8, 1974). "Supreme Court hears case of United States v. Nixon". NBC Universal Media LLC. Archived from the original on February 21, 2019. Retrieved February 20, 2019.
But there is no guarantee that when the decision comes, it will end the matter. It may just set the stage for the next legal wrangle over compliance with the Court's decision.
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- ↑ 223.0 223.1 223.2 223.3 223.4 Peppers, Todd C. (2006). Courtiers of the Marble Palace: The Rise and Influence of the Supreme Court Law Clerk. Stanford University Press. pp. 195, 1, 20, 22, and 22–24 respectively. ISBN 978-0-8047-5382-1. Archived from the original on November 7, 2020. Retrieved October 29, 2020.
- ↑ Weiden, David; Ward, Artemus (2006). Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court. NYU Press. ISBN 978-0-8147-9404-3. Archived from the original on January 1, 2016. Retrieved May 28, 2013.
- ↑ Chace, James (2007). Acheson: The Secretary of State Who Created the American World. New York City: Simon & Schuster (published 1998). p. 44. ISBN 978-0-684-80843-7. Archived from the original on November 18, 2020. Retrieved October 29, 2020.
- ↑ 226.0 226.1 226.2 226.3 Liptak, Adam (September 7, 2010). "Polarization of Supreme Court Is Reflected in Justices' Clerks". The New York Times. Archived from the original on July 13, 2012. Retrieved September 7, 2010.
- ↑ William E. Nelson; Harvey Rishikof; I. Scott Messinger; Michael Jo (November 2009). "The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?" (PDF). Vanderbilt Law Review. p. 1749. Archived from the original (PDF) on July 27, 2010. Retrieved September 7, 2010.
- ↑ Liptak, Adam; Kopicki, Allison (June 7, 2012). "Approval Rating for Supreme Court Hits Just 44% in Poll". The New York Times. Archived from the original on June 16, 2019. Retrieved June 28, 2019.
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- ↑ "Supreme Court Trust, Job Approval at Historical Lows". Gallup.com. September 29, 2022. Retrieved June 3, 2023.
- ↑ Keck, Thomas M. (December 9, 2022). "The U.S. Supreme Court and Democratic Backsliding". SSRN 4298415.
- ↑ Huq, Aziz Z. (January 2022). "The Supreme Court and the Dynamics of Democratic Backsliding". The Annals of the American Academy of Political and Social Science. 699 (1): 50–65. doi:10.1177/00027162211061124. ISSN 0002-7162. S2CID 247499952.
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- ↑ Liptak, Adam (June 22, 2016). "Justices Disclose Privately Paid Trips and Gifts". The New York Times. ISSN 0362-4331. Archived from the original on February 13, 2020. Retrieved February 13, 2020.
- ↑ Berman, Mark; Markon, Jerry (February 17, 2016). "Why Justice Scalia was staying for free at a Texas resort". The Washington Post. Archived from the original on June 24, 2017. Retrieved July 24, 2016.
- ↑ Gerber, Scott Douglas (April 23, 2021). "Why Supreme Court justices should not be signing $2 million book deals". The Hill. Retrieved March 26, 2023.
- ↑ O'Brien, Reity (June 20, 2014). "Justice Obscured: Supreme court justices earn quarter-million in cash on the side". Center for Public Integrity. Archived from the original on July 12, 2017. Retrieved July 24, 2016.
- ↑ Mark, Michelle. "Amy Coney Barrett took speaking fees from a group that pushed Mississippi's abortion ban. A constitutional law expert says that won't stop her ruling on the case". Insider. Retrieved March 26, 2023.
- ↑ "Can America's Supreme Court police itself?". The Economist. ISSN 0013-0613. Retrieved September 21, 2023.
- ↑ Fuchs, Hailey; Gerstein, Josh; Canellos, Peter (September 29, 2022). "Justices shield spouses' work from potential conflict of interest disclosures". POLITICO. Retrieved October 5, 2022.
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- ↑ Totenberg, Nina (April 25, 2023). "Chief Justice Roberts declines to testify before Senate panel". NPR.
- ↑ "Advocate tells lawmakers of 'stealth' efforts to influence Supreme Court",The Washington Post, December 8, 2022. Retrieved March 2, 2023.
- ↑ "Hearings Undue Influence: Operation Higher Court and Politicking at SCOTUS" December 8, 2022. Retrieved March 2, 2023.
- ↑ "Ohio couple's gifts show need for U.S. Supreme Court ethics code, congressional committee told" Sabrina Eaton, Cleveland.com, December 8, 2022. Retrieved March 2, 2023.
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- ↑ "Confidence in U.S. Supreme Court Sinks to Historic Low". Gallup.com. Gallup Inc. June 23, 2022. Retrieved February 8, 2023.
- ↑ Thomson-DeVeaux, Amelia (July 5, 2022). "Just How Sharp Was The Supreme Court's Rightward Turn This Term?". FiveThirtyEight. Retrieved February 8, 2023.
- ↑ Safire, William (April 24, 2005). "Dog Whistle". The New York Times Magazine. Archived from the original on May 12, 2011. Retrieved October 22, 2009.
- ↑ Savage, David G. (October 23, 2008). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. Archived from the original on October 23, 2008. Retrieved October 23, 2009.
- ↑ Mansnerus, Laura (October 16, 2005). "Diminished Eminence in a Changed Domain". The New York Times. Archived from the original on May 29, 2015. Retrieved October 22, 2009.
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This suggests that the right of habeas corpus was not limited to English subjects … protects people who are captured … at Guantanamo … Wrong, Justice Antonin Scalia wrote in dissent. He said English history showed that the writ of habeas corpus was limited to sovereign English territory
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- ↑ Bernstein, David. Only One Place of Redress: African Americans, Labor Regulations, and the Courts from Reconstruction to the New Deal Archived November 2, 2020, at the Wayback Machine, p. 100 (Duke University Press, 2001): "The Court also directly overturned Lochner by adding that it is no 'longer open to question that it is within the legislative power to fix maximum hours.'"
- ↑ Dorf, Michael and Morrison, Trevor. Constitutional Law Archived November 1, 2020, at the Wayback Machine, p. 18 (Oxford University Press, 2010).
- ↑ Patrick, John. The Supreme Court of the United States: A Student Companion Archived August 5, 2020, at the Wayback Machine, p. 362 (Oxford University Press, 2006).
- ↑ Steinfels, Peter (May 22, 2005). "'A Church That Can and Cannot Change': Dogma". The New York Times. Archived from the original on May 11, 2011. Retrieved October 22, 2009.
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a lack of judicial authority to enter an inherently political question that had previously been left to the states
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he has written scathingly of Roe v. Wade
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The Brown decision of 1954, desegregating the schools of 17 states and the District of Columbia, awakened the nation to the court's new claim to power.
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- ↑ Stone, Geoffrey R. (March 26, 2012). "Citizens United and conservative judicial activism" (PDF). University of Illinois Law Review. 2012 (2): 485–500. Archived (PDF) from the original on February 17, 2021. Retrieved May 13, 2020.
- ↑ Lincoln, Abraham (March 4, 1861). "First Inaugural Address". National Center. Archived from the original on October 9, 2009. Retrieved October 23, 2009.
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
- ↑ Will, George F. (May 27, 2009). "Identity Justice: Obama's Conventional Choice". The Washington Post. Archived from the original on May 3, 2011. Retrieved October 22, 2009.
Thurgood Marshall quote taken from the Stanford Law Review, summer 1992
- ↑ Irons, Peter. A People's History of the Supreme Court. London: Penguin, 1999. ISBN 0-670-87006-4
- ↑ Liptak, Adam (January 31, 2009). "To Nudge, Shift or Shove the Supreme Court Left". The New York Times. Archived from the original on May 12, 2011. Retrieved October 23, 2009.
Every judge who's been appointed to the court since Lewis Powell...in 1971...has been more conservative than his or her predecessor
- ↑ Babington, Charles (April 5, 2005). "Senator Links Violence to 'Political' Decisions". The Washington Post. Archived from the original on April 28, 2010. Retrieved October 22, 2009.
- ↑ Liptak, Adam (February 2, 2006). "A Court Remade in the Reagan Era's Image". The New York Times. Archived from the original on May 11, 2011. Retrieved October 22, 2009.
- ↑ Savage, David G. (July 13, 2008). "Supreme Court finds history is a matter of opinions". Los Angeles Times. Archived from the original on April 13, 2010. Retrieved October 22, 2009.
- ↑ Napolitano, Andrew P. (February 17, 2005). "No Defense". The New York Times. Archived from the original on May 12, 2011. Retrieved October 23, 2009.
- ↑ Edsall, Thomas B.; Fletcher, Michael A. (September 5, 2005). "Again, Right Voices Concern About Gonzales". The Washington Post. Archived from the original on May 12, 2008. Retrieved October 23, 2009.
- ↑ Lane, Charles (March 20, 2005). "Conservative's Book on Supreme Court Is a Bestseller". The Washington Post. Archived from the original on October 15, 2008. Retrieved October 23, 2009.
- ↑ Mark I. Sutherland; Dave Meyer; William J. Federer; Alan Keyes; Ed Meese; Phyllis Schlafly; Howard Phillips; Alan E. Sears; Ben DuPre; Rev. Rick Scarborough; David C. Gibbs III; Mathew D. Staver; Don Feder; Herbert W. Titus (2005). Judicial Tyranny: The New Kings of America. St. Louis, Missouri: Amerisearch Inc. p. 242. ISBN 978-0-9753455-6-6. Archived from the original on November 18, 2020. Retrieved October 29, 2020.
- ↑ 282.0 282.1 Kakutani, Michiko (July 6, 2009). "Appointees Who Really Govern America". The New York Times. Archived from the original on May 12, 2011. Retrieved October 27, 2009.
- ↑ Bazelon, Emily (July 6, 2009). "The Supreme Court on Trial: James MacGregor Burns takes aim at the bench". Slate. Archived from the original on November 5, 2009. Retrieved October 27, 2009.
- ↑ Special keynote address by President Ronald Reagan, November 1988, at the second annual lawyers convention of the Federalist Society, Washington, D.C.
- ↑ Taylor, Stuart Jr. (October 15, 1987). "Reagan Points to a Critic, Who Points Out It Isn't So". The New York Times. Archived from the original on May 11, 2011. Retrieved October 23, 2009.
- ↑ Kelley Beaucar Vlahos (September 11, 2003). "Judge Bork: Judicial Activism Is Going Global". Fox News. Archived from the original on May 23, 2010. Retrieved October 23, 2009.
What judges have wrought is a coup d'état – slow moving and genteel, but a coup d'état nonetheless.
- ↑ Leiter, Brian (March 19, 2017). "Let's start telling the truth about what the Supreme Court does". Washington Post. Archived from the original on July 6, 2019. Retrieved September 29, 2019.
- ↑ 288.0 288.1 288.2 Margolick, David (September 23, 2007). "Meet the Supremes". The New York Times. Archived from the original on April 11, 2009. Retrieved October 23, 2009.
Beat reporters and academics initially denounced the court's involvement in that case, its hastiness to enter the political thicket and the half-baked and strained decision that resulted.
- ↑ Savage, David G. (October 23, 2008). "Roe vs. Wade? Bush vs. Gore? What are the worst Supreme Court decisions?". Los Angeles Times. Archived from the original on October 23, 2008. Retrieved October 23, 2009.
UC Berkeley law professor Goodwin Liu described the decision as 'utterly lacking in any legal principle" and added that the court was "remarkably unashamed to say so explicitly.'
- ↑ McConnell, Michael W. (June 1, 2001). "Two-and-a-Half Cheers for Bush v Gore". University of Chicago Law Review. Archived from the original on February 25, 2016. Retrieved February 16, 2016.
- ↑ CQ Transcriptions (Senator Kohl) (July 14, 2009). "Key Excerpt: Sotomayor on Bush v. Gore". The Washington Post. Archived from the original on May 13, 2011. Retrieved October 23, 2009.
Many critics saw the Bush v. Gore decision as an example of the judiciary improperly injecting itself into a political dispute"
- ↑ Adam Cohen (March 21, 2004). "Justice Rehnquist Writes on Hayes vs. Tilden, With His Mind on Bush v. Gore". Opinion section. The New York Times. Archived from the original on May 11, 2011. Retrieved October 23, 2009.
The Bush v. Gore majority, made up of Mr. Rehnquist and his fellow conservatives, interpreted the equal protection clause in a sweeping way they had not before, and have not since. And they stated that the interpretation was 'limited to the present circumstances,' words that suggest a raw exercise of power, not legal analysis.
- ↑ Kevin McNamara (June 3, 2009). "Letters – Supreme Court Activism?". Letters to the editor. The New York Times. Archived from the original on May 11, 2011. Retrieved October 23, 2009.
- ↑ CQ Transcriptions (January 13, 2006). "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court". The Washington Post. Archived from the original on April 29, 2011. Retrieved October 28, 2009.
...Baker v. Carr, the reapportionment case. We heard Justice Frankfurter who delivered a scathing dissent in that...
- ↑ Ziblatt, Daniel; Levitsky, Steven (September 5, 2023). "How American Democracy Fell So Far Behind". The Atlantic. Retrieved September 20, 2023.
- ↑ 296.0 296.1 296.2 Sabato, Larry (September 26, 2007). "It's Time to Reshape the Constitution and Make America a Fairer Country". The Huffington Post. Archived from the original on May 31, 2010. Retrieved October 23, 2009.
- ↑ Greenhouse, Linda (September 10, 2007). "New Focus on the Effects of Life Tenure". The New York Times. Archived from the original on July 26, 2010. Retrieved October 10, 2009.
- ↑ Levinson, Sanford (February 9, 2009). "Supreme court prognosis – Ruth Bader Ginsburg's surgery for pancreatic cancer highlights why US supreme court justices shouldn't serve life terms". The Guardian. Manchester. Archived from the original on September 6, 2013. Retrieved October 10, 2009.
- ↑ See also Arthur D. Hellman, "Reining in the Supreme Court: Are Term Limits the Answer?", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 291.
- ↑ Richard Epstein, "Mandatory Retirement for Supreme Court Justices", in Roger C. Cramton and Paul D. Carrington, eds., Reforming the Court: Term Limits for Supreme Court Justices (Carolina Academic Press, 2006), p. 415.
- ↑ Brian Opeskin, "Models of Judicial Tenure: Reconsidering Life Limits, Age Limits and Term Limits for Judges", Oxford J Legal Studies 2015 35: 627–663.
- ↑ Hamilton, Alexander (June 14, 1788). "The Federalist No. 78". Independent Journal. Archived from the original on January 11, 2010. Retrieved October 28, 2009.
and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
- ↑ 303.0 303.1 Litt, David (2020). Democracy in One Book or Less: How It Works, Why It Doesn't, and Why Fixing It Is Easier Than You Think. Ecco. p. 345. ISBN 978-0062879363.
- ↑ "American democracy is cracking. These forces help explain why". Washington Post. August 18, 2023. Retrieved September 20, 2023.
- ↑ Bump, Philip (December 2, 2021). "Analysis | The minoritarian third of the Supreme Court". Washington Post. ISSN 0190-8286. Retrieved September 22, 2023.
- ↑ Price, Greg (October 6, 2018). "Kavanaugh Fourth Justice Picked By Unpopular President". Newsweek. Retrieved September 21, 2023.
- ↑ Bump, Philip (May 20, 2022). "Analysis | The minoritarian third of the Supreme Court". Washington Post. ISSN 0190-8286. Retrieved September 21, 2023.
- ↑ Green, Jamal (May 7, 2019). "Trump's Judge Whisperer Promised to Take Our Laws Back to the 1930s". Slate. Retrieved February 5, 2023.
A longtime leader within the Federalist Society, Leo has had Donald Trump's ear on judicial appointments and has been the main curator of the president's list of Supreme Court candidates.
- ↑ Kroll, Andy; Bernstein, Andrea; Marritz, Ilya; Sweitzer, Nate (October 11, 2023). "We Don't Talk About Leonard: The Man Behind the Right's Supreme Court Supermajority". ProPublica. Retrieved October 20, 2023.
- ↑ Litt, David (2020). Democracy in One Book or Less: How It Works, Why It Doesn't, and Why Fixing It is Easier Than You Think (First ed.). New York, NY. p. 334. ISBN 978-0-06-287936-3. OCLC 1120147424.
{{cite book}}: CS1 maint: location missing publisher (link) - ↑ "C-SPAN Supreme Court Week". C-SPAN. October 4, 2009. Archived from the original on October 9, 2009. Retrieved October 25, 2009.
- ↑ Will, George F. (May 27, 2009). "Identity Justice: Obama's Conventional Choice". The Washington Post. Archived from the original on May 3, 2011. Retrieved October 22, 2009.
- ↑ 313.0 313.1 Taranto, James (June 9, 2009). "Speaking Ruth to Power". The Wall Street Journal. Archived from the original on August 27, 2016. Retrieved October 22, 2009.
- ↑ Woodward, Bob; Scott Armstrong (1979). The Brethren: Inside the Supreme Court. United States of America: Simon & Schuster. p. 541. ISBN 978-0-7432-7402-9. Archived from the original on November 18, 2020. Retrieved October 29, 2020.
A court which is final and unreviewable needs more careful scrutiny than any other
- ↑ Gersen, Jeannie Suk (July 3, 2022). "The Supreme Court's Conservatives Have Asserted Their Power". New Yorker. Retrieved July 3, 2022.
- ↑ Liptak, Adam (July 2, 2022). "Gridlock in Congress Has Amplified the Power of the Supreme Court". The New York Times. Retrieved July 3, 2022.
- ↑ Gerstein, Josh; Ward, Alexander (June 30, 2022). "The conservative Supreme Court is just getting warmed up". Politico. Retrieved July 3, 2022.
- ↑ Bort, Ryan (June 30, 2022). "Supreme Court to Rule on Whether Republican State Legislatures Can Rig Elections". Rolling Stone. Archived from the original on June 30, 2022. Retrieved June 30, 2022.
- ↑ Klein, Naomi (June 30, 2022). "The Supreme Court's Shock-and-Awe Judicial Coup". The Intercept. Archived from the original on June 30, 2022. Retrieved June 30, 2022.
- ↑ Madison, James (1789). – via Wikisource.
the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty
- ↑ Alexander Hamilton (aka Publius) (1789). "Federalist No. 28". Independent Journal. Archived from the original on July 9, 2009. Retrieved October 24, 2009.
Power being almost always the rival of power; the General Government will at all times stand ready to check the usurpations of the state government; and these will have the same disposition toward the General Government.
- ↑ Madison, James (January 25, 1788). "The Federalist". Independent Journal. No. 44 (quote: 8th para). Archived from the original on October 27, 2009. Retrieved October 27, 2009.
seems well calculated at once to secure to the States a reasonable discretion in providing for the conveniency of their imports and exports, and to the United States a reasonable check against the abuse of this discretion.
- ↑ Madison, James (February 16, 1788). "The Federalist No. 56 (quote: 6th para)". Independent Journal. Archived from the original on February 15, 2009. Retrieved October 27, 2009.
In every State there have been made, and must continue to be made, regulations on this subject which will, in many cases, leave little more to be done by the federal legislature, than to review the different laws, and reduce them in one general act.
- ↑ Hamilton, Alexander (December 14, 1787). "The Federalist No. 22 (quote: 4th para)". New York Packet. Archived from the original on February 3, 2010. Retrieved October 27, 2009.
The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union, have, in different instances, given just cause of umbrage and complaint to others, and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy.
- ↑ Madison, James (January 22, 1788). "The Federalist Papers". New York Packet. Archived from the original on July 9, 2009. Retrieved October 27, 2009.
The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the articles of Confederation, which render the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits.
- ↑ Akhil Reed Amar (1998). "The Bill of Rights – Creation and Reconstruction". The New York Times: Books. Archived from the original on April 16, 2009. Retrieved October 24, 2009.
many lawyers embrace a tradition that views state governments as the quintessential threat to individual and minority rights, and federal officials—especially federal courts—as the special guardians of those rights.
- ↑ Gold, Scott (June 14, 2005). "Justices Swat Down Texans' Effort to Weaken Species Protection Law". Los Angeles Times. Archived from the original on January 12, 2012. Retrieved March 24, 2012.
Purcell filed a $60-million lawsuit against the U.S. government in 1999, arguing that cave bugs could not be regulated through the commerce clause because they had no commercial value and did not cross state lines. 'I'm disappointed,' Purcell said.
- ↑ 328.0 328.1 Reich, Robert B. (September 13, 1987). "The Commerce Clause; The Expanding Economic Vista". The New York Times Magazine. Archived from the original on May 12, 2011. Retrieved October 27, 2009.
- ↑ FDCH e-Media (January 10, 2006). "U.S. Senate Judiciary Committee Hearing on Judge Samuel Alito's Nomination to the Supreme Court". The Washington Post. Archived from the original on October 19, 2008. Retrieved October 30, 2009.
I don't think there's any question at this point in our history that Congress' power under the commerce clause is quite broad, and I think that reflects a number of things, including the way in which our economy and our society has developed and all of the foreign and interstate activity that takes place – Samuel Alito
- ↑ Cohen, Adam (December 7, 2003). "Editorial Observer; Brandeis's Views on States' Rights, and Ice-Making, Have New Relevance". The New York Times. Archived from the original on May 11, 2011. Retrieved October 30, 2009.
But Brandeis's dissent contains one of the most famous formulations in American law: that the states should be free to serve as laboratories of democracy
- ↑ Graglia, Lino (July 19, 2005). "Altering 14th Amendment would curb court's activist tendencies". University of Texas School of Law. Archived from the original on December 4, 2010. Retrieved October 23, 2009.
- ↑ Hornberger, Jacob C. (October 30, 2009). "Freedom and the Fourteenth Amendment". The Future of Freedom Foundation. Retrieved October 30, 2009.
Fourteenth Amendment. Some argue that it is detrimental to the cause of freedom because it expands the power of the federal government. Others contend that the amendment expands the ambit of individual liberty. I fall among those who believe that the Fourteenth Amendment has been a positive force for freedom.
- ↑ "Gamble v. United States". ScotusBlog. Archived from the original on September 28, 2018. Retrieved September 28, 2018.
- ↑ Vazquez, Maegan (June 28, 2018). "Supreme Court agrees to hear 'double jeopardy' case in the fall". CNN. Archived from the original on September 27, 2018. Retrieved September 28, 2018.
- ↑ Chemerinsky, Erwin (October 17, 2019). "Opinion: The Supreme Court shrouds itself in secrecy. That needs to end". Los Angeles Times. Retrieved February 21, 2023.
- ↑ Biskupic, Joan (September 1, 2021). "In the shadows: Why the Supreme Court's lack of transparency may cost it in the long run | CNN Politics". CNN. Retrieved February 21, 2023.
- ↑ Black, Harry Isaiah; Bannon, Alicia (July 19, 2022). "The Supreme Court 'Shadow Docket' | Brennan Center for Justice". www.brennancenter.org. Retrieved February 8, 2023.
- ↑ Jacobson, Louis (October 18, 2021). "PolitiFact - The Supreme Court's 'shadow docket': What you need to know". @politifact. Retrieved February 8, 2023.
- ↑ "Public Says Televising Court Is Good for Democracy". PublicMind.fdu.edu. March 9, 2010. Archived from the original on May 1, 2011. Retrieved December 14, 2010.
- ↑ Mauro, Tony (March 9, 2010). "Poll Shows Public Support for Cameras at the High Court". The National Law Journal. Archived from the original on July 5, 2010. Retrieved December 18, 2010.
- ↑ Christopher Moore (November 1, 2008). "Our Canadian Republic – Do we display too much deference to authority … or not enough?". Literary Review of Canada. Archived from the original on November 11, 2009. Retrieved October 23, 2009.
- ↑ Tomkins, Adam (2002). "In Defence of the Political Constitution". United Kingdom: 22 Oxford Journal of Legal Studies 157.
Bush v. Gore
- ↑ Turley, Jonathan (April 4, 2019). "Op-Ed: Make the Supreme Court bigger, but not the Democrats' way". Los Angeles Times. Retrieved February 22, 2023.
- ↑ Litt, David (2020). Democracy in One Book or Less: How It Works, Why It Doesn't, and Why Fixing It Is Easier Than You Think. Ecco. p. 352. ISBN 978-0062879363.
- ↑ Turley, Jonathan (February 1, 2017). "Op-Ed: Battling over Neil Gorsuch is beside the point: The Supreme Court needs an institutional overhaul". Los Angeles Times. Retrieved February 22, 2023.
Bibliography
- Encyclopedia of the Supreme Court of the United States, 5 vols., Detroit [etc.] Macmillan Reference USA, 2008
- The Rules of the Supreme Court of the United States Archived June 5, 2017, at the Wayback Machine (2013 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 978-0-19-505835-2.
- Hall, Kermit L.; McGuire, Kevin T., eds. (2005). Institutions of American Democracy: The Judicial Branch. New York, New York: Oxford University Press. ISBN 978-0-19-530917-1.
- Harvard Law Review Assn. (2000). The Bluebook: A Uniform System of Citation, 17th ed. [18th ed., 2005. 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, renamed The Journal of Supreme Court History (ISSN 1059-4329)]
- Supreme Court Historical Society. [[[:Template:SCOTUS URL]] "The Court Building"] (PDF). Retrieved February 13, 2008.
{{cite web}}: Check|url=value (help) - Warren, Charles (1924). The Supreme Court in United States History (3 volumes). Boston: Little, Brown and Co.
- Woodward, Bob and Armstrong, Scott (1979). The Brethren: Inside the Supreme Court. ISBN 978-0-7432-7402-9.
Further reading
- Abraham, Henry J. (1992). Justices and Presidents: A Political History of Appointments to the Supreme Court (1st ed.). New York: Oxford University Press. ISBN 978-0-19-506557-2.
- Beard, Charles A. (1912). The Supreme Court and the Constitution. New York: Macmillan Company. Reprinted Dover Publications, 2006. ISBN 0-486-44779-0.
- Corley, Pamela C.; Steigerwalt, Amy; Ward, Artemus (2013). The Puzzle of Unanimity: Consensus on the United States Supreme Court. Stanford University Press. ISBN 978-0-8047-8472-6.
- 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 978-1-56802-126-3.
- 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 978-1-56802-126-3.
- Garner, Bryan A. (2004). Black's Law Dictionary. Deluxe 8th ed. Thomson West. ISBN 0-314-15199-0.
- Greenburg, Jan Crawford (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.
- Katz, Daniel Martin; Bommarito, Michael James; Blackman, Josh (January 19, 2017) [July 9, 2014]. "A General Approach for Predicting the Behavior of the Supreme Court of the United States". PLOS ONE. Social Science Research Network. 12 (4): e0174698. arXiv:1407.6333. doi:10.2139/ssrn.2463244. PMC 5389610. PMID 28403140. SSRN 2463244.
- Martin, Fenton S.; Goehlert, Robert U. (1990). The U.S. Supreme Court: A Bibliography. Washington, D.C.: Congressional Quarterly Books. ISBN 978-0-87187-554-9.
- Lewis, Thomas Tandy, ed. The U.S. Supreme Court (2nd ed.) Three volumes. Ipswich: Salem/Grey House, 2016. ISBN 978-168217-180-6.
- 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 978-0-393-93218-8.
- Spaeth, Harold J. (1979). Supreme Court Policy Making: Explanation and Prediction (3rd ed.). New York: W.H.Freeman & Co Ltd. ISBN 978-0-7167-1012-7.
- Supreme Court Historical Society. [[[:Template:SCOTUS URL]] "The Court Building"] (PDF). Retrieved February 13, 2008.
{{cite web}}: Check|url=value (help) - Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court. Doubleday, 2007. ISBN 0-385-51640-1.
- Tribe, Laurence H., "Constrain the Court – Without Crippling It", The New York Review of Books, vol. LXX, no. 13 (17 August 2023), pp. 50–54. "[J]udicial supremacy is neither woven into the Constitution's text and structure nor discoverable in the history of its creation – a reality that today's supposedly 'textualist' or at times 'originalist' Court conveniently ignores." (p. 51.)
- Urofsky, Melvin I. (1994). The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing. p. 590. ISBN 978-0-8153-1176-8.
- Urofsky, Melvin and Finkelman, Paul (2001). A March of Liberty: A Constitutional History of the United States. Two vols. New York: Oxford University Press. ISBN 0-19-512637-8 & ISBN 0-19-512635-1.
External links
 | This section's use of external links may not follow OODA WIKI's policies or guidelines. (September 2020) |
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- Supreme Court decisions from World Legal Information Institution (contains no advertisements)
- 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
- Milestone Cases in Supreme Court History from InfoPlease
- Supreme Court Nominations, present–1789
- Scales of Justice: The History of Supreme Court Nominations – radio program explores history of appointments and confirmations
- Supreme Court Historical Society
- Complete/Searchable 1991–2004 Opinions and Orders
- The Supreme Court Database A research database with information about cases from 1946 to 2011
- The Oyez Project – audio recordings of oral arguments
- Template:NYTtopic
- U.S. Supreme Court collected news and commentary at The Washington Post
- C-SPAN's The Supreme Court: Home to America's Highest Court
- Supreme Court Briefs Hosted by the American Bar Association
- Works by United States Supreme Court at Project Gutenberg
- Works by or about United States Supreme Court at Internet Archive
- Works by United States Supreme Court at LibriVox (public domain audiobooks) File:Speaker Icon.svg
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