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

History

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

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

That changed during the Marshall Court (1801–1835), which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison) and made several important rulings which gave shape and substance to the constitutional balance of power between the federal 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 Court was entrusted with maintaining the consistent and orderly development of federal law.

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

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. The Taney Court is primarily remembered for its ruling in Dred Scott v. Sandford, the case which may have helped precipitate the Civil War. In the Reconstruction era, 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 accommodationmarker in 1935 and changed its interpretation of the Constitution in order to facilitate Franklin Roosevelt's New Deal (West Coast Hotel Co. v. Parrish, Wickard v. Filburn), giving a broader reading to the powers of the Federal Government.

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

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

The Rehnquist Court (1986–2005) was noted 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 strengthening state sovereign immunity (Seminole Tribe v. Florida, Alden v. Maine). It was also noted for its 5 to 4 decision in Bush v. Gore which ended the electoral recount during the presidential election of 2000 and led to the presidency of George W. Bush. In addition, the Rehnquist court decriminalized homosexual sex (Lawrence v. Texas); narrowed the right of labor union organizers to enter an employer's property (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); affirmed the power of Congress to extend the term of copyright (Eldred v. Ashcroft); and expanded the government's power of eminent domain (Kelo v.marker City of New Londonmarker).

The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John G. Roberts on September 29, 2005, and is the current presiding court. The Roberts Court is seen as more conservative than the previous court. Some of the major rulings so far have been in the areas of abortion (Ayotte v. Planned Parenthood, Gonzales v. Carhart); anti-trust legislation (Leegin Creative Leather Products, Inc. v. PSKS, Inc.); the death penalty (Baze v. Rees, Kennedy v. Louisiana); the Fourth Amendment (Hudson v. Michigan); free speech of government employees and of high school students (Garcetti v. Ceballos, Morse v. Frederick); military detainees (Hamdan v. Rumsfeld, Boumediene v. Bush); school desegregation (Parents v. Seattle); voting rights (Crawford v. Marion County Election Board); and the Second Amendment (District of Columbia v. Heller).

Composition

Size of the Court

The United States Constitution does not specify the size of the Supreme Court, but in Article III it authorizes the Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices. As the country grew geographically, Congress increased the number of justices to correspond with the growing number of judicial circuits: the court was expanded to seven members in 1807, nine in 1837 and ten in 1863.

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

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

Appointment and confirmation

Article Two of the United States Constitution gives the President power to appoint Justices "by and with the advice and consent of the Senate". Most Presidents nominate candidates who broadly share their ideological views, although a Justice's decisions may end up being contrary to what the nominating President anticipated. Because the Constitution does not set any qualifications for service as a Justice, the President may nominate anyone to serve. However, that person must receive the confirmation of the Senate.

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 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 Streetmarker. However, the modern practice of questioning began with John Marshall Harlan II in 1955. A simple majority vote is required to confirm or to reject a nominee. Once the Committee reports out the nomination, the whole Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.



Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate, preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968. The President may also withdraw a nominee's name before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush withdrew his nomination of Harriet Miers before Committee hearings had begun.

Before 1981 the approval process of Justices was usually rapid. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees Justices as playing a more political role than in the past.

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

Recess appointments

When the Senate is in recess, the President may make a temporary appointment without the Senate's advice and consent. Such a recess appointee to the Supreme Court holds office only until the end of the next Senate session (at most, less than two years). To continue to serve thereafter and be compensated for his or her service, the 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 regular appointment. No president since Dwight Eisenhower has made a recess appointment to the Supreme Court and the practice has become highly controversial even when applied to lower federal courts. During the 110th Congress, the Democratic leadership of the Senate specifically blocked Republican President George W. Bush from making any recess appointments with the use of pro forma sessions.

Tenure

The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is well understood to mean Justices may serve for the remainder of their lives, although they can voluntarily resign or retire. A Justice can also be removed by Congressional impeachment and conviction. However, only one Justice has been impeached by the House (Samuel Chase, in 1805) and he was acquitted in the Senate. Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House. No mechanism presently exists for removing a Justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.

Because Justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the departures of Chief Justice Rehnquist and Justice Sandra Day O'Connor (by death and retirement, respectively) in 2005 and 2006.

Despite the variability, all but four Presidents up to Barack Obama have been able to appoint at least one Justice. The four 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, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Johnson was denied the opportunity to appoint a Justice by a contraction in the size of the Court (see Size of the Court above). Carter is the only President who completed at least one full term in office without making a nomination to the Court during his presidency.

Current membership

Below is a table of Supreme Court Justices. ("Conf. Vote" = Senate Confirmation Vote)
Name Born Appt. by Conf. vote Age at appt. First day Prior positions

John G. Roberts(Chief Justice) (age ) in Buffalo, New Yorkmarker George W. Bush 78–22 50 Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice (1993–2003); Professor, Georgetown University Law Centermarker (1992–2005); Principal Deputy Solicitor General (1989–1993); Private practice (1986–1989); Associate Counsel to the President (1982–1986); Special Assistant to the Attorney General (1981–1982)
John Paul Stevens (age ) in Chicagomarker, Illinoismarker Gerald Ford 98–0 55 Circuit Judge, Court of Appeals for the Seventh Circuit (1970–1975); Private practice (1948–1970); Lecturer, University of Chicago Law School (1950–1954); Lecturer, Northwestern University School of Lawmarker (1954–1958)
Antonin Scalia (age ) in Trentonmarker, New Jerseymarker Ronald Reagan 98–0 50 Circuit Judge, Court of Appeals for the D.C. Circuit (1982–1986); Professor, University of Chicago Law School (1977–1982); Assistant Attorney General (1974–1977); Professor, University of Virginia School of Lawmarker (1967–1974); Private practice (1961–1967)
Anthony Kennedy (age ) in Sacramentomarker, Californiamarker Ronald Reagan 97–0 51 Circuit Judge, Court of Appeals for the Ninth Circuit (1975–1988); Professor, McGeorge School of Law, University of the Pacificmarker (1965–1988); Private practice (1963–1975)
Clarence Thomas (age ) in Pin Point, Georgiamarker George H. W. Bush 52–48 43 Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991); Chairman, Equal Employment Opportunity Commission (1982–1990); legislative assistant for Missourimarker Senator John Danforth (1979–1981); employed by Monsanto Company Inc. (1977–1979); Attorney General in Missourimarker under State Attorney General John Danforth (1974–1977)
Ruth Bader Ginsburg (age ) in Brooklynmarker, New Yorkmarker Bill Clinton 96–3 60 Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993); General Counsel, American Civil Liberties Union (1973–1980); Professor, Columbia Law School (1972–1980); Professor, Rutgers University School of Lawmarker (1963–1972)
Stephen Breyer (age ) in San Franciscomarker, Californiamarker Bill Clinton 87–9 56 Chief Judge, Court of Appeals for the First Circuit (1990–1994); Circuit Judge, Court of Appeals for the First Circuit (1980–1990); Professor, Harvard Law Schoolmarker (1967–1980)
Samuel Alito (age ) in Trentonmarker, New Jerseymarker George W. Bush 58–42 56 Circuit Judge, Court of Appeals for the Third Circuit (1990–2006); Professor, Seton Hall University School of Law (1999–2004); U.S. Attorney for the District of New Jersey (1987–1990); Deputy Assistant Attorney General (1985–1987); Assistant to the Solicitor General (1981–1985); Assistant U.S. Attorney for the District of New Jersey (1977–1981)
Sonia Sotomayor (age ) in The Bronxmarker, New Yorkmarker Barack Obama 68–31 55 August 6, 2009 Circuit Judge, Court of Appeals for the Second Circuit (1998–2009), District Judge, District Court for the Southern District of New York (1992–1998), Private practice (1984–1991), Assistant District Attorney, New York Countymarker, New Yorkmarker (1979–1984)
As of August 26, 2009 the average age of justices is 67 years old.

Retired justices

Currently, there are two living retired Justices of the Supreme Court, Sandra Day O'Connor and David Souter. As retired Justices, they may be designated for temporary assignments to sit with several United States Courts of Appeals. 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 selected senior status, except that a retired Supreme Court Justice never sits as a member of the Supreme Court itself.

Research suggests that justices sometimes strategically plan their decisions to leave the bench, with personal, institutional, and partisan factors playing a role. The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, if at all possible, justices seek to depart under favorable presidents and Senates to ensure that a like-minded successor will be appointed.

Name Born Appt. by Conf. vote Age at appt. First day Senior Status
Sandra Day O'Connor (age ) in El Pasomarker, Texasmarker Reagan 99–0 51 September 25, 1981 January 31, 2006
David Souter (age ) in Melrosemarker, Massachusettsmarker G.H.W. Bush 90–9 51 June 29, 2009


Seniority and seating

Many of the internal operations of the Court are organized by the seniority of the Justices; the Chief Justice is considered to be the most senior member of the Court, regardless of the length of his or her service. The Associate Justices are then ranked in order, by the length of their service.

During Court sessions, the Justices sit according to seniority, with the Chief Justice in the center, and the Associate Justices on alternating sides, with the most senior Associate Justice on the Chief Justice's immediate right, and the most junior Associate Justice seated on the left farthest away from the Chief Justice. Therefore, the current court sits as follows from left to right when looking at the bench from the perspective of a lawyer arguing before the Court: Alito, Ginsburg, Kennedy, Stevens (most senior Associate Justice), Roberts (Chief Justice), Scalia, Thomas, Breyer, and Sotomayor. In the official yearly Court photograph, Justices are arranged similarly, with the five most senior members sitting in the front row in the same order as they would sit during Court sessions, 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, the current practice is for Justices to speak and vote in order of seniority from the Chief Justice first to the most junior Associate Justice last. The most junior Associate Justice in these conferences is tasked with any menial labor the Justices may require as they convene alone, such as answering the door of their conference room, serving coffee, and transmitting the orders of the court to the court's clerk.Justice Joseph Story served the longest as the junior Justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows close behind, with 4,199 days when Samuel Alito joined the court on January 31, 2006.

Salary

Associate justices of the Supreme Court are paid $208,100 per year as of 2008, and the Chief Justice receives $217,400 per year.

Judicial leanings

While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, refer to legal outlook rather than a political or legislative one.

Six of the current justices of the court were appointed by Republican Presidents, while three were appointed by Democratic Presidents. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court's conservative wing. Justices Stevens, Ginsburg, and Breyer are generally thought of as the Court's more liberal wing. Justice Anthony Kennedy, generally considered a conservative who "occasionally vote[s] with the liberals", is most likely to be the swing vote that determines the outcome of close cases. Recent appointee Justice Sotomayor has voted only in a single unanimous per curiam decision so far.

Quarters



The Supreme Court first met on 1 February 1790, at the Merchants' Exchange Building in New York Citymarker, which then was the national capital. Philadelphiamarker became the capital city later in 1790, and the Court followed Congress and the President there, meeting briefly in Independence Hallmarker, and then from 1791 to 1800 at Old City Hall at 5th and Chestnut Streets. After Washington, D.C.marker, became the capital in 1800, the Court occupied various spaces in the United States Capitolmarker 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 complexmarker and Library of Congressmarker 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, the Supreme Court Police, separate from the Capitol Police.

Due chiefly to security concerns, the present building is being remodeled (2009) to allow installation of security monitors. The renovation will remove access to the building through the expansive and impressive front steps.

Visitors can tour the building on their own, though not the courtroom itself. The building is open to the public from 9am to 4:30pm weekdays but closed on weekends and holiday. It is located behind the United States Capitolmarker at One First Street NE and Maryland Avenue There's a cafeteria, gift shop, exhibits, and a half-hour informational film. When the Court is not in session, lectures about the courtroom are held hourly from 9:30am to 3:30pm and reservations are not necessary. When the Court is in session the public may attend Oral Arguments, which are held twice each morning on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available. Sometimes there are also afternoon argument sessions. The number of open seats varies from case to case. For important cases, some visitors arrive the day before and wait through the night. In mid-May until the end of June, the court releases orders and opinions beginning at 10am, and these 15 to 30 minute sessions are open to the public on a similar basis. Supreme Court Police are available to answer questions.

Jurisdiction

Section 2 of Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:

The jurisdiction of the federal courts was further limited by the Eleventh Amendment to the United States Constitution, which forbade federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (see Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to regulate the court's appellate jurisdiction: for example, the federal courts may consider "Controversies ... between Citizens of different States" only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts.

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

The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Court has only appellate jurisdiction. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.

The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases.

Since Article Three of the United States Constitution stipulates that federal courts may only entertain "cases" or "controversies", the Supreme Court avoids deciding cases that are moot and does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard, , 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 than the typical human gestation period to appeal a case through the lower courts to the Supreme Court.

Justices as Circuit Justices

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "Circuit Justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time.

Under the Judiciary Act of 1789, each Justice was required to "ride circuit," or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many Justices, who cited the difficulty of travel. Moreover, several individuals opposed it 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 so, 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.

As of August 17, 2009, the circuits were assigned as follows:
For the D.C. Circuit, John G. Roberts, Jr. For the Seventh Circuit, John Paul Stevens
For the First Circuit, Stephen G. Breyer For the Eighth Circuit, Samuel A. Alito, Jr.
For the Second Circuit, Ruth Bader Ginsburg For the Ninth Circuit, Anthony M. Kennedy
For the Third Circuit, Samuel A. Alito, Jr. For the Tenth Circuit, Sonia Sotomayor
For the Fourth Circuitmarker, John G. Roberts, Jr. For the Eleventh Circuit, Clarence Thomas
For the Fifth Circuit, Antonin G. Scalia For the Federal Circuit, John G. Roberts, Jr.
For the Sixth Circuit, John Paul Stevens
The circuit assignments often reflect the geographic regions where the assigned Justices served as judges or practitioners before joining the Supreme Court. Five of the current Justices are assigned to circuits on which they once sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Breyer (First Circuit), Justice Alito (Third Circuit), Justice Stevens (Seventh Circuit), and Justice Kennedy (Ninth Circuit). Furthermore, Justices Thomas and Ginsburg are assigned to the circuits that include their home states (the Eleventh and Second Circuits, respectively).

How a case moves through the Court

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". 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 the petitioner and the party that prevailed is the respondent. All case names before the Court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Though it has not happened since 1794, parties in an action at law in which the Supreme Court has original jurisdiction may request that issues of fact be determined by a jury.

The common shorthand name for cases is typically the first party (the petitioner). For example, Brown v. Board of Education is referred to simply as Brown, and Roe v. Wade as Roe. The exception to this rule is when the name of a state, or the United States, or some government entity, is the first listed party. In that instance, the name of the second party is the shorthand name. For example, Iowa v. Tovar is referred to simply as Tovar, and Gonzales v. Raich is referred to simply as Raich, because the first party, Alberto Gonzales, was sued in his official capacity as the United States Attorney General.

A cert petition is voted on at a session of the Court called a conference. A conference is a private meeting of the nine Justices by themselves; the public and the Justices' clerks are excluded. If four Justices vote to grant the petition, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.

The Court grants a petition for cert only for "compelling reasons," spelled out in the court's Rule 10. Such reasons include:
  • 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 and Justice Alito participate in the cert pool.

Oral Argument

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, 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, and during that time the Justices may interrupt the advocate and ask questions. The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.

Decision

At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions, circulate among the Justices until the Court is prepared to announce the judgment in a particular case.

It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought directly to the Supreme Court by direct appeal from a United States District Court, the Chief Justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.

Published Opinions

The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, several opinions are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports—or a competing version published by another commercial legal publisher—to allow those who read their pleadings and other briefs to find the cases quickly and easily.

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).

Institutional powers and constraints

The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of this Court to overturn laws and executive actions it deems unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances. This power allows judges to have the last word on allocation of authority among the three branches of the federal government, which grants them the ability to set bounds to their own authority, as well as to their immunity from outside checks and balances.

The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgiamarker ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"; however, this alleged quotation has been disputed. 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.

Some argue that the Supreme court is "the most separated and least checked of all branches of government."Justices are not required to stand for election by virtue of their tenure "during good behavior," and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v. Georgia (1793); the Thirteenth and Fourteenth Amendments in effect overturned Dred Scott v. Sandford (1857); the Sixteenth Amendment reversed Pollock v. Farmers' Loan and Trust Co. (1895); and the Twenty-sixth Amendment overturned some portions of Oregon v. Mitchell (1970). However, when the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter act, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.

In addition, there are other mechanisms by which the other two branches can restrain the Court. Congress could increase the number of justices, giving the President power to influence future decisions via appointments (as in Roosevelt's Court Packing Plan discussed above). Congress could pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The Court sanctioned such congressional action in the Reconstruction case ex parte McCardle (1869), though it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871).

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), (where it effectively gave the Presidency the power to terminate ratified treaties without the consent of Congress or the Senate). The Court's decisions can also confine the presidency, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).

Criticism of the Supreme Court

Some criticisms leveled at the Supreme Court are:

  • Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Judicial activism can be conservative or liberal. An often cited example of conservative judicial activism is Lochner v. New York, a decision criticized by many prominent thinkers, including Robert Bork,, Justice Antonin Scalia,, and Chief Justice John Roberts. An example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion by using a circuitous reasoning regarding a "right to privacy" inferred from the Fourteenth Amendment, according to critics. The Roe decision has been criticized by legal scholars, justices, and presidential candidates. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan and former presidential contender Barry Goldwater. Lincoln warned, refering 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." Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up." During different historical periods, the court has leaned in different directions. Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead. Critics include writers such as Andrew Napolitano, Phyllis Schlafly, Mark R. Levin, and Mark Sutherland, as well as Pulitzer Prize-winning historian James MacGregor Burns. Past presidents from both parties have attacked judicial activism, including Franklin Roosevelt, Nixon, and Reagan. 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." Senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than [the politician] would like."


  • Federal versus state power. There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison and Alexander Hamilton argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, others argue that expansive federal power is good and consistent with what the Framers wanted. The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the interstate Commerce Clause was used to protect non-commercial cave bugs within a state. Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Justice Alito said congressional authority under the Commerce Clause is "quite broad." Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that "states should be free to serve as laboratories of democracy." One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." However, others see the Fourteenth Amendment as a positive force which extends "protection of those rights and guarantees to the state level."


  • Judicial interference in political disputes. Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions which 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 Albert Gore, has been criticized extensively, particularly by liberals. Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called "political questions."


  • Failing to protect individual rights. Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery; Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal; Kelo v.marker City of New Londonmarker (2005) was criticized by prominent politicians, including New Jerseymarker governor Jon Corzine, as undermining property rights. A student criticized a 1988 ruling which allowed school officials "to block publication of a student article in the high school newspaper." Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver’s licenses, especially poor and minority voters," according to one report. Senator Al Franken criticized the court for "eroding individual rights." However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamomarker detainees, on the grounds that habeas corpus was "limited" to sovereign territory.


  • Supreme Court has too much power. This criticism is related to complaints about judicial activism. George Will wrote that the court has an "increasingly central role in American governance." It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009. A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch. Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis". Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."


  • Courts are poor check on executive power. British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to wind their way through the system, their ability to restrain the other two branches is severely weakened.


  • Not choosing enough cases to review. Senator Arlen Spector said the court should "decide more cases." On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court hears now is smaller today than when he first joined the Supreme Court, he also stated that he has not changed his standards for deciding whether review a case, nor does he believe his colleagues have changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the Courts.


  • Secret proceedings. The court has been criticized for keeping its deliberations hidden from public view. Its inner workings are difficult for reporters to cover, like a closed "cartel", only revealing itself through "public events and printed releases, with nothing about its inner workings," according to a review of Jeffrey Toobin's expose The Nine: Inside the Secret World of the Supreme Court. The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives." Larry Sabato complains about the court's "insularity." However, in recent years, many justices have appeared on television, written books, and made public statements to journalists. In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Kyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution, with only the Justices' private conferences being inaccessible to others.


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


  • Lifetime tenure. Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day." Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity. James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." Proposals to solve these problems include term limits for justices, as proposed by Levinson and Sabato as well as a mandatory retirement age proposed by Richard Epstein. However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."


See also





Notes

  1. See, in dicta Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59 (1982); United States ex rel. Toth v. Quarles, 350 U.S. 11, 16 (1955).
  2. | pages = 146 | isbn = 0-88738-127-8
  3. 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
  4. "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
  5. See .
  6. .
  7. http://news.yahoo.com/s/ap/us_sotomayor_senate
  8. David N. Atkinson, Leaving the Bench (University Press of Kansas 1999)ISBN 0-7006-0946-6
  9. See for example Sandra Day O'Connor:How the first woman on the Supreme Court became its most influential justice, by Joan Biskupic and Sandra Day O'Connor, Harper Collins, 2005, p. 105. Also Rookie on the Bench: The Role of the Junior Justice by Clare Cushman, Journal of Supreme Court History 32 no. 3 (2008), pp. 282–296.
  10. In a 2007 interview, Justice Stevens stated he considers himself a "judicial conservative", and only appears liberal because he has been surrounded by increasingly conservative colleagues.
  11. Toobin, Jeffrey. The Nine: Inside the Secret World of the Supreme Court, Doubleday, 2007 ISBN 0-385-51640-1
  12. The Nine: Inside the Secret World of the Supreme Court
  13. Hamdan v. Rumsfeld (Scalia, J., dissenting)
  14. ; see also Adequate and independent state grounds
  15. See Georgia v. Brailsford, , in which the Court conducted a jury trial.
  16. See generally, Tushnet, Mark, ed. (2008) I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases, Malaysia: Beacon Press, pp. 256, ISBN 978-080700036-6
  17. The American Conflict by Horace Greeley (1873), p. 106; also in The Life of Andrew Jackson (2001) by Robert Vincent Remini
  18. See for example "Judicial activism" in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall; article written by Gary McDowell
  19. Irons, Peter. A People's History of the Supreme Court. London: Penguin, 1999. ISBN 0670870064
  20. Special keynote address by President Ronald Reagan, November 1988, at the second annual lawyers convention of the Federalist Society, Washington, D.C.
  21. .
  22. 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.
  23. 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.


References



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