Supreme Court of the United States
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The Supreme Court of the United States (sometimes referred to by the acronym SCOTUS) is the highest judicial body in the United States and leads the judicial branch of the U.S. federal government.
The Court consists of nine Justices: the Chief Justice of the United States and eight Associate Justices of the Supreme Court of the United States. The Justices are nominated by the President and confirmed with the "advice and consent" of the Senate. As federal judges, the Justices serve during "good behavior," meaning they essentially serve for life and can be removed only by resignation, or by impeachment and subsequent conviction. The Supreme Court is the only court established by the United States Constitution (in Article III); all other federal courts are created by Congress.
The Supreme Court holds both original and appellate jurisdiction, with its appellate jurisdiction accounting for most of the Court's caseload. The court's original jurisdiction is narrowly focused, as defined in Article III, Section 2 ("In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the Supreme Court shall have original Jurisdiction"). The court's appellate jurisdiction encompasses "all cases" within the scope of Article III, but is subject to limitation by Act of Congress under the Exceptions Clause in Article III and by the discretion of the Court.
The Supreme Court meets in Washington, D.C., in the United States Supreme Court building. The Court's yearly terms usually start on the first Monday in October and finish sometime during the following June or July. Each term consists of alternating two week intervals. During the first interval, the court is in session ('sitting') and hears cases, and, during the second interval, the court is recessed to consider and write opinions on cases it has heard.
That changed during the John Marshall Court (1801–1836), which declared the Court to be the supreme arbiter of the Constitution (see Marbury et al. v. Madison) and made a number of important rulings which gave shape and substance to the constitutional balance of power between the federal government (referred to at the time as the "general" government) and the states. In Martin v. Hunter's Lessee, the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts. Both Marbury and Martin confirmed that the Supreme Court was the body entrusted with maintaining the consistent and orderly development of federal law.
The Marshall Court ended the practice of each judge issuing his opinion seriatim, a remnant of British tradition, and instead one majority opinion of the Court was issued. The Marshall Court also saw Congress impeach a sitting Justice, Samuel Chase, who was acquitted. This impeachment was one piece of the power struggle between the Jeffersonians and the Federalist after the election of 1800 and the subsequent change in power. The failure to remove Chase is thought to signal the recognition by Congress of judicial independence.
The Taney Court (1836–1864) made a number of important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. However, it is primarily remembered for its ruling in Dred Scott v. Sandford, the case which may have helped precipitate the Civil War. In the years following the Civil War, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution, and developed the doctrine of substantive due process (Lochner v. New York; Adair v. United States).
Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children's Hospital), and the Court held that the Fourteenth Amendment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.
During the Hughes, Stone, and Vinson Courts (1930–1953), the court gained its own accommodation and radically changed its interpretation of the Constitution in order to facilitate the New Deal (West Coast Hotel Co. v. Parrish), giving an expansive reading to the powers of the Federal Government.
The Warren Court (1953–1969) made a number of alternately celebrated and controversial rulings expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process. It held that segregation in public schools is unconstitutional (Brown v. Board of Education); the Constitution protects a general right to privacy (Griswold v. Connecticut); public schools cannot have official prayer (Engel v. Vitale), or mandatory Bible readings (Abington School District v. Schempp); many guarantees of the Bill of Rights apply to the states (e.g., Mapp v. Ohio, Miranda v. Arizona); an equal protection clause is not contained in the Fifth Amendment (Bolling v. Sharpe); and that the Constitution grants the right of retaining a court appointed attorney for those too indigent to pay for one (Gideon v. Wainwright).
The Burger Court (1969–1986) ruled that abortion was a constitutional right (Roe v. Wade), reached muddled and controversial rulings on affirmative action (Regents of the University of California v. Bakke) and campaign finance regulation (Buckley v. Valeo), and held that the implementation of the death penalty in many states was unconstitutional (Furman v. Georgia), but that the death penalty itself was not unconstitutional (Gregg v. Georgia). 
The Rehnquist Court (1986–2005) will primarily be remembered for its revival of the concept of federalism, which included restrictions on Congressional power under both the Commerce Clause (United States v. Lopez; United States v. Morrison) and the fifth section of the Fourteenth Amendment (City of Boerne v. Flores), as well as the fortification of state sovereign immunity (Seminole Tribe v. Florida; Alden v. Maine). It will also be remembered for its 5 to 4 decision in Bush v. Gore which ended the electoral recount during the presidential election of 2000 and led to the presidency of George W. Bush. In addition, the Rehnquist court narrowed the right of labor unions to picket (Lechmere Inc. v. NLRB); altered the Roe v. Wade framework for assessing abortion regulations (Planned Parenthood v. Casey); and gave sweeping meaning to ERISA pre-emption (Shaw v. Delta Air Lines, Inc.; Egelhoff v. Egelhoff), thereby denying plaintiffs access to state courts with the consequence of limiting compensation for torts to very circumscribed remedies (Aetna Health Inc. v. Davila; CIGNA Healthcare of Texas Inc. v. Calad); and affirmed the power of Congress to extend the term of copyright (Eldred v. Ashcroft).
The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John G. Roberts on September 29, 2005, and is the currently presiding court. Though still too early to call it a definite trend, the Court under Chief Justice Roberts is perceived as moving towards the conservative end of the spectrum. Some of the major rulings so far have been in the areas of free speech (Garcetti v. Ceballos and Morse v. Frederick); the death penalty (Kansas v. Marsh); abortion (Gonzales v. Carhar]); the Fourth Amendment (Hudson v. Michigan); school desegregation (Parents v. Seattle); and anti-trust legislation (Leegin Creative Leather Products, Inc. v. PSKS, Inc.). The Roberts Court, with Chief Justice Roberts recusing himself, ruled in favor of some constitutional protections for non-citizen Guantanamo detainees in Hamdan v. Rumsfeld. The Court heard oral arguments on the Guantanamo habeas corpus case Al Odah v. United States on December 5 of the 2007-2008 term, and a decision is expected by the end of the term.
The United States Constitution does not specify the size of the Supreme Court; instead, Congress has the power to fix the number of Justices. Originally, the total number of Justices was set at six by the Judiciary Act of 1789. As the country grew geographically, the number of Justices steadily increased to correspond with the growing number of judicial circuits. The court was expanded to seven members in 1807, nine in 1837 and ten in 1863. In 1866, however, Congress wished to deny President Andrew Johnson any Supreme Court appointments, and therefore passed the Judicial Circuits Act, which provided that the next three Justices to retire would not be replaced; thus, the size of the Court would eventually reach seven by attrition. Consequently, one seat was removed in 1866 and a second in 1867. By the Circuit Judges Act of 1869, the number of Justices was again set at nine (the Chief Justice and eight Associate Justices), where it has remained ever since. President Franklin D. Roosevelt attempted to expand the Court (the Judiciary Reorganization Bill of 1937); his plan would have allowed the President to appoint one new, additional justice for every justice who reached the age of seventy but did not retire from the bench, until the Court reached a maximum size of fifteen justices. Ostensibly, this was to ease the burdens of the docket on the elderly judges, but it was widely believed that the President's actual purpose was to add Justices who would favor his New Deal policies, which had been regularly ruled unconstitutional by the Court. This plan, referred to often as the Court Packing Plan, failed in Congress. The Court, however, moved from its opposition to Roosevelt's New Deal programs, rendering the President's effort moot. In any case, Roosevelt's long tenure in the White House allowed him to appoint eight Justices to the Supreme Court (second only to George Washington) and promote one Associate Justice to Chief Justice.
Article II of the Constitution gives the President of the United States power to nominate justices, who are then appointed "by and with the Advice and Consent of the United States Senate." As a general rule, Presidents nominate individuals who broadly share their ideological views. In many cases, a Justice's decisions may be contrary to what the nominating President anticipated. A famous instance was Chief Justice Earl Warren; President Eisenhower expected him to be a conservative judge, but his decisions are arguably among the most liberal in the Court's history. Eisenhower later called the appointment "the biggest damn fool mistake I ever made." Because the Constitution does not set forth any qualifications for service as a Justice, the President may nominate anyone to serve. However, that person must receive the confirmation of the Senate, meaning that a majority of that body must find that person to be a suitable candidate for a lifetime appointment on the nation's highest court.
In modern times, the confirmation process has attracted considerable attention from special-interest groups, many of which lobby senators to confirm or to reject a nominee, depending on whether the nominee's track record aligns with the group's views. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. At the close of confirmation hearings, the Committee votes on whether the nomination should go to the full Senate with a positive, negative or neutral report.
The practice of the nominee being questioned in person by the Committee is relatively recent. The first nominee to testify before the Committee was Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Committee was Felix Frankfurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him. The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.
Once the committee reports out the nomination, the whole Senate considers it; a simple majority vote is required to confirm or to reject a nominee. Rejections are relatively uncommon; the Senate has explicitly rejected only twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.
Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate thereby preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.
It is also possible for the President to withdraw a nominee's name at any time before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush withdrew his nomination of Harriet Miers before committee hearings had begun, citing concerns about Senate requests during her confirmation process for access to internal Executive Branch documents resulting from her position as White House Counsel. In 1987, President Ronald Reagan withdrew the nomination of Douglas H. Ginsburg because of allegations of marijuana use.
Until the 1980s, the approval process of Justices was frequently quick. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration through the current administration of George W. Bush, however, the process took much longer. Some speculate this is because of the increasingly political role Justices are said to play. 
When the Senate is in recess, the President may make a temporary appointment without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years). To continue to serve thereafter and be compensated for his or her service, the nominee must be confirmed by the Senate. Of the two Chief Justices and six Associate Justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed for a full term. No president since Dwight D. Eisenhower has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts.
The Constitution provides that Justices "shall hold their Offices during good Behavior" (unless appointed during a Senate recess). The term "good behavior" is interpreted to mean that the Justices may serve for the remainder of their lives, although this is not compulsory as they may resign or retire voluntarily. A Justice may also be removed by impeachment and conviction by congressional vote, but only one Justice has ever been impeached by the House (Samuel Chase, in 1805) and he was acquitted by the Senate, making impeachment as a restraint on the court something of a paper tiger. Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and once in 1970), but they have not even reached a vote in the House.
Because Justices have life tenure, it is impossible to predict when a vacancy will next occur. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Powell and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other because of health problems and died shortly thereafter. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the departures of Chief Justice Rehnquist and Justice O'Connor (by death and retirement, respectively) in 2005.
Despite the variability, all but four Presidents so far have been able to appoint at least one Justice. The exceptions are William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Taylor likewise died early in his presidential term and an appointment was made before the term ended by Millard Fillmore. Johnson succeeded the assassinated Lincoln, and he was denied the opportunity to appoint a Justice by congressional action (see Size of the Court earlier in this article). Carter is the only president to serve a full term without the opportunity to appoint at least one Justice.
Criticism of process
The process of nomination of Supreme Court Justices remains controversial in and of itself, and opposition to the current system because of beliefs of bias in appointments has existed since the creation of the Court. Historian Howard Zinn has claimed in his book A People's History of the United States that the justices cannot be independent, as the members are chosen by the president and ratified by the Senate. Likewise, he says that they cannot be neutral between the rich and the poor, as they are almost always from the upper class. He points specifically to their handling of the Sherman Anti-trust Act, which favored monopolies while opposing labor strikes, as well as their use of the Fourteenth Amendment to protect corporations more so than African-Americans, as proof of this.
Criticism of partisanship
Starting primarily with the Supreme Court's decision in Mapp v. Ohio in 1961 and continuing into the first decade of the 21st century, conservatives have presented the view of the Supreme Court as a haven for liberal judicial activism. Contrary to this thesis, Zinn presents the idea that the overall history of the Court, especially during the period between the Civil War and the Great Depression, should be viewed as one of mostly conservative activism in the defense of property rights over human rights, elevating "liberty of contract" to a dogmatic stance of the Court via the abovementioned substantive due process doctrine. Of the Courts extant in the 20th century, only the Stone, Vinson, Warren, and to a lesser extent the Burger Courts (a time frame ranging approximately from 1941 to 1986) could be seen as leaning more toward a liberal interpretation of the Constitution and its guarantees, but not in every opinion.
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 complained about the difficulty of travel. Moreover, several individuals opposed it on the grounds that a Justice could not be expected to be impartial in an appeal if he had previously decided the same case while riding circuit. Circuit riding was abolished in 1891. Today, the duties of a "Circuit Justice" are generally limited to receiving and deciding requests for stays in cases coming from the circuit or circuits to which the Justice is assigned, and other clerical tasks such as addressing certain requests for extensions of time. A Circuit Justice may (but in practice almost never does) sit as a judge of that circuit; when he or she does, however, a Circuit Justice has seniority over the Chief Judge of that circuit.
The Chief Justice is traditionally assigned to the District of Columbia Circuit, the Federal Circuit and the Fourth Circuit, which includes Maryland and Virginia, the states surrounding the District of Columbia. Each Associate Justice is assigned to one or two judicial circuits.
Below is a table of current active Supreme Court Justices, in order of seniority:
|Justice||Birthdate||Position||Nominated By||Confirmation Vote||Prior Positions|
|John G. Roberts||January 27, 1955||Chief Justice||George W. Bush||78-22||Circuit Judge for the District of Columbia (2003-2005); Private Practice (1993-2003), Deputy Solicitor General (1989-1993), Private Practice (1986-1989), Associate Counsel to the President (1982-1986), Assistant to the Attorney General (1981-1982)|
|Antonin Scalia||March 11, 1936||Associate Justice||Ronald Reagan||98-0||Circuit Judge for the District of Columbia (1982-1986), Professor: University of Chicago Law School (1977-1982), Assistant to the Attorney General (1974-1977), Professor: University of Virginia Law School (1967-1974)|
|Anthony M. Kennedy||July 23, 1936||Associate Justice||Ronald Reagan||97-0||Circuit Judge for the Ninth Circuit (1975-1988), Professor: McGeorge School of Law /University of the Pacific (1965-1988), Private Practice (1963-1975)|
|Clarence Thomas||June 23, 1948||Associate Justice||George H.W. Bush||52-48||Circuit Judge for the District of Columbia (1990-1991), Chairman: Equal Employment Opportunity Commission (1982-1990), Legislative Assistant for United States Senator John Danforth (1979-1981), Monsanto, Inc. (1977-1979), Missouri Assistant Attorney General under Attorney General John Danforth (1974-1977)|
|Ruth Bader Ginsburg||March 15, 1933||Associate Justice||Bill Clinton||97-3||Circuit Judge for the District of Columbia Court of Appeals (1980-1993), General Counsel: American Civil Liberties Union (1973-1980), Professor: Columbia Law School (1972-1980), Professor: Rutgers University School of Law (1963-1972)|
|Steven G. Breyer||July 15, 1938||Associate Justice||Bill Clinton||87-9||Chief Judge for the First Circuit (1990-1994), Circuit Judge for the First Circuit (1980-1990), Professor: Harvard Law School (1967-1980)|
|Samuel Alito||April 1, 1950||Associate Justice||George W. Bush||58-42||Circuit Judge for the Third Circuit (1990-2006), Professor: Seton Hall University School of Law (1999-2004), U.S. Attorney for the District of New Jersey (1987-1990), Deputy Assistant Attorney General (1985-1987), Assistant to the Solicitor General (1981-1985), Assistant U.S. Attorney for the District of New Jersey (1977-1981)|
|Sonia Sotomayor||June 25, 1954||Associate Justice||Barack Obama||68-31|| Circuit Judge for the Second Circuit (1998-2009), Southern District of New York Justice (1992-1998), Private Practice (1984 - 1992), Assistant District Attorney in Manhattan (1979-1984)
|Elena Kagan||April 28, 1960||Associate Justice||Barack Obama||63-37||United States Solicitor General (2009-2010), Dean of Harvard Law School (2003-2009), Charles Hamilton Houston Professor of Law at Harvard University (2003-2009), Professor of Law: University of Chicago Law School (1991-1997)|
As of 2007, the average age of the U.S. Supreme Court justices is 67 years.
Research suggests that justices often strategically plan their decisions to leave the bench, with personal, institutional, and partisan factors playing a role. The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, if at all possible, justices seek to depart under favorable presidents and Senates to ensure that a like-minded successor will be appointed.
Currently, there is only one retired Justice of the Supreme Court, Sandra Day O'Connor, who announced her intent to retire in 2005 and was replaced by Samuel Alito in 2006. As a retired Justice, Justice O'Connor may be, and has been, designated for temporary assignments to sit with several United States Courts of Appeals. Nominally, such assignments are made by the Chief Justice; they are analogous to the types of assignments that may be given to judges of lower courts who have elected senior status, except that a retired Supreme Court Justice never sits as a member of the Supreme Court itself.
Below is a table of current retired justices:
|Name||Born||Appt. by||Conf. vote||First day||Senior Status|
|John Paul Stevens||birth date 4/20/1920||Gerald Ford||98-0||December 19, 1975||June 28, 2010|
|Sandra Day O'Connor||birth date 3/26/30 in Arizona||Ronald Reagan||99-0||September 25, 1981||January 31, 2006|
Seniority and Seating
During Court sessions, the Justices sit according to seniority, with the Chief Justice in the center, and the Associate Justices on alternating sides, with the most senior Associate Justice on the Chief Justice's immediate right, and the most junior Associate Justice seated on the left farthest away from the Chief Justice. Therefore, the current court sits as follows from left to right when looking at the bench from the perspective of a lawyer arguing before the Court: Sotomayor, Breyer, Thomas, Scalia (most senior Associate Justice), Roberts (Chief Justice), Kennedy, Ginsburg, Alito, and Kagan (most junior Associate Justice).
While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, it is common for justices to be informally categorized in legal and political circles as being a judicial conservative, moderate, or liberal.
Seven of the current justices of the court were appointed by Republican presidents, while two were nominated by a Democratic president. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Alito and Thomas compose the Court's conservative wing. Justices Ginsburg, Breyer, Sotamayor and Kagen are generally thought of as the Court's liberal wing. Justice Kennedy, generally thought of as a moderate conservative, is considered most likely to be the swing vote that determines the outcome of certain close cases.
The Supreme Court first met on 1 February 1790, at the Merchants Exchange Building in New York City, which then was the national capital. Philadelphia became the capital city later in 1790, and the Court followed Congress and the President there, meeting briefly in Independence Hall, and then from 1791 to 1800 at Old City Hall at 5th and Chestnut Streets. After Washington, D.C., became the capital in 1800, the Court occupied various spaces in the United States Capitol building until 1935, when it moved into its own purpose-built home at One First Street Northeast, Washington, DC. The four-story building was designed in a classical style sympathetic to the surrounding buildings of the Capitol complex and Library of Congress by architect Cass Gilbert, and is clad in marble quarried chiefly in Vermont. The building includes space for the Courtroom, Justices' chambers, an extensive law library, various meeting spaces, and auxiliary services such as workshop, stores, cafeteria and a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own police force, separate from the Capitol Police.
Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The jurisdiction of the federal courts was further limited by the Eleventh Amendment, which forbade the federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to "Regulat[e]" the court's jurisdiction: for example, the federal courts may consider "Controversies ... between Citizens of different states only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts.
Exercise of this power (for example, the Detainee Treatment Act, which provided that "'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee") can become controversial.
The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Supreme Court has only appellate jurisdiction. The Supreme Court considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.
The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are a variety of devices that permit so-called "collateral review" of state cases.
Because, under Article III of the United States Constitution, federal courts may only entertain "cases" or "controversies", the Court avoids deciding cases that are moot and does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard, the Court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the Court on his claim would not be able to redress any injury he had suffered. The mootness exception is not absolute; if an issue is "capable of repetition yet evading review", the Court will address it even though the party before the Court would not himself be made whole by a favorable result. In Roe v. Wade, and other abortion cases, the Court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer to appeal a case through the lower courts to the Supreme Court than the typical human gestation period.
How a Case Moves Through the Court
The vast majority of cases come before the Court by way of petitions for writs of certiorari, commonly referred to as "cert". The Court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case". The Court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law. The party that lost in the lower court is called the petitioner, and the party that prevailed is called the respondent. All case names before the Court are styled Petitioner v. Respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.
The common shorthand name for cases is typically the first party (the appellant). For example, Brown v. Board of Education is referred to simply as Brown, and Roe v. Wade as Roe. The exception to this rule is when the name of a state, or the United States, or some government entity, is the first listed party. In that instance, the name of the second party is the shorthand name. For example, Iowa v. Tovar is referred to simply as Tovar, and Gonzales v. Raich is referred to simply as Raich, because the first party, Alberto Gonzales, was sued in his official capacity as the United States Attorney General.
A cert petition is voted on at a session of the Court called a conference. A conference is a private meeting of the nine Justices by themselves; the public is not permitted to attend, and neither are the Justices' law clerks. If four Justices vote to grant the petition, then the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.
The Court grants a petition for certiorari only for "compelling reasons," spelled out in the court's Rule 10. Such reasons include, without limitation:
- to resolve a conflict in the interpretation of a federal law or a provision of the federal constitution
- to correct an egregious departure from the accepted and usual course of judicial proceedings
- to resolve an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the Court.
When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split". If the Court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the final ruling in the case.
To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool." Currently, all justices except for Justice Stevens participate in the cert pool.
When the Court grants a cert petition, the case is set for oral argument. At this point, both parties file briefs on the merits of the case, as distinct from reasons the parties may urge for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has half an hour to present its argument, and during that time the Justices can and do interrupt the advocate and ask questions of their own. The petitioner goes first, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.
At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions, circulate among the Justices until the Court is prepared to announce the judgment in a particular case.
It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. If, because of recusals and vacancies, there is no quorum to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought directly to the Supreme Court by direct appeal from a United States District Court, the Chief Justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.
The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, a number of opinions are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that may cite this set of reporters -- or a competing version published by another commercial legal publisher -- to allow those who read their pleadings and other briefs to find the cases quickly and easily.
At present there are 545 volumes of U.S. Reports. Lawyers use an abbreviated format to cite cases, in the form xxx U.S. xxx (yyyy). The number before the "U.S." refers to the volume number, and the number after the U.S. refers to the page within that volume. The number in parentheses is the year in which the case was decided. For instance, if a lawyer wanted to cite Roe v. Wade, decided in 1973, and which appears on page 113 of volume 410 of U.S. Reports, he would write 410 U.S. 113 (1973).
Checks and Balances
The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of the Supreme Court to overturn laws and executive actions it deems unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist Paper No. 78, Alexander Hamilton writes: "A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances.
The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"; however, this quotation is likely apocryphal. State militia in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Richard Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon, however, ultimately complied with the Supreme Court's ruling.
The Constitution provides that the salary of a Justice may not be diminished during his or her continuance in office. This clause was intended to prevent Congress from punishing Justices for their decisions by reducing their emoluments. Together with the provision that Justices hold office for good behavior, this clause helps guarantee judicial independence. However, as seen above, the President's practice of appointing justices with similar real, perceived or expected ideology can be seen to compromise judicial independence.
- Supreme Court candidates, judicial activists
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- Anchorage Daily News, "Police use of GPS is ruled unconstitutional by court" 1/23/2012
- JD Supra "U.S. Supreme Court Ruling Reaffirms Right of Religious Organizations to Hire, Fire" 1/12/2012
- ↑ Toobin, "SCOTUS Watch", The New Yorker, November 21, 2005; Safire, "On Language' Potus and Flotus", New York Times, October 12, 1997; O'Connor, "High Court's '9 Men' Were a Surprise to One", New York Times, October 12, 1983.
- ↑ 2.0 2.1 2.2 "A Brief Overview of the Supreme Court" (PDF). United States Supreme Court. http://www.supremecourt.gov/about/briefoverview.pdf. Retrieved on 2007-09-21.
- ↑ 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.
- ↑ In Steps Big and Small, Supreme Court Moved Right by Linda Greenhouse, New York Times, July 1 2007.
- ↑ Justices, Number of. in Hall, Ely Jr., Grossman, and Wiecek (editors), The Oxford Companion to the Supreme Court of the United States. Oxford University Press 1992, ISBN 0-19-505935-6.
- ↑ Template:Cite news
- ↑ [ http://www.senate.gov/artandhistory/history/common/briefing/Nominations.htm United States Senate. "Nominations"]
- ↑ Zinn, Howard. A People's History of the United States. New York: Perennial, 2003. p.260-261 ISBN 0060528370
- ↑ Irons, Peter. A People's History of the Supreme Court. London: Penguin, 1999. ISBN 0670870064
- ↑ Kennedy Seen as The Next Justice In Court's Middle, The Washington Post, Lane, Charles January 31, 2006
- ↑ Hamdan v. Rumsfeld (Scalia, J., dissenting)
- ↑ Template:Usc
- ↑ Template:Usc; see also Adequate and independent state grounds
- ↑ Tony Mauro (2005-10-21). "Roberts Dips Toe Into Cert Pool" (HTML). Legal Times. http://www.law.com/jsp/article.jsp?id=1129799113829. Retrieved on 2007-10-31.
- ↑ Tony Mauro (2006-07-04). "Justice Alito Joins Cert Pool Party" (HTML). Legal Times. http://www.law.com/jsp/article.jsp?id=1144330162287. Retrieved on 2007-10-31.
- ↑ [ http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1 U.S.C. Title 28, Section 1]
- ↑ "U.S.C. Title 28, Section 1" (HTML). FindLaw. http://caselaw.lp.findlaw.com/scripts/ts_search.pl?title=28&sec=1. Retrieved on 2007-10-30.
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