The United States Supreme Court

Most of us took some sort of class on government when we were in high school.  That’s where we learned about the United States government and the separation of powers between the executive, legislative and judicial branches, but most of us know very little about the U.S. Supreme Court and how it works.  We know the sitting President nominates potential justices, and we read about Senate confirmation hearings, especially when nominees are hotly contested by opponents.  Those things make the evening news.  The actual workings of the Court remain a mystery to most people.  Yet, we need to understand how and why the Court makes decisions, because those decisions impact our everyday lives. 

The Supreme Court Evolved to Become the Final Authority on the Constitutionality of Laws.

The United States Supreme Court was created by Article III, Section I of the Constitution.  It begins: “The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”  The Senate followed by passing the Judiciary Act of 1789 which set up the federal court system, creating 13 judicial districts and authorizing a chief justice and five associate justices to make up the U.S. Supreme Court.  The first session of the Court took place in New York City. It was purely administrative in nature.  In 1791, the Court moved to Philadelphia, and in 1800 moved to its permanent home in Washington, D.C.  The first few Court sessions were devoted to organizational issues.  It wasn’t until 1792 that the Court heard its first case, a monetary dispute between a farmer and someone who lent him money.

In the early days, the justices were required to travel.  The 1789 Act mandated they make two visits per year to each of the 13 judicial districts to hold circuit court.  With poor roads and long distances, this was a huge burden on the justices. These were older men, and frequently traveling over rutted, muddy roads by horse or carriage was exhausting. In 1793, Congress changed the rules to require only one visit per year. This change made their lives a bit easier.   The practice of the justices traveling from circuit to circuit was not abolished until late in the 19th century.

During its first 10 years, the Court spent its time deciding property and financial disputes.  Scholars of the time considered it the weakest of the three branches of government.  It seemed the Court’s only role was to be the ultimate legal authority on case disputes.  That changed abruptly in 1801, when John Marshall became Chief Justice of the Supreme Court.  Marshall was a charismatic man who held considerable influence over his fellow justices.  Marshall fervently believed the Court should have a pivotal role in checking the power of the other government branches.  He implemented that idea in 1803, with the landmark decision in Marbury v. Madison., In an opinion authored by Marshall, the Court held that the Supreme Court had the power to overturn a law passed by Congress if it violated the U.S. Constitution.  The case established the concept of judicial review of the constitutionality of laws.  The courts were no longer the weakest branch of government.

Many political figures of the day were appalled by Marbury v. Madison.  Thomas Jefferson commented: “The Constitution . . . is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”  The Marshall Court went on to expand the power of the federal government with several other landmark decisions.  In McCulloch v. Maryland (1819), the Court held that the Interstate Commerce Clause of the Constitution gave the federal government the power to create a national bank.   In Gibbons v. Ogden (1824), the Marshall Court held the Interstate Commerce Clause gave Congress the power to regulate interstate navigation.

This notion of interpreting language in the Constitution to create rights and powers was a new idea.  Despite objections by political figures of the day, the trend continued.  Today, we accept as a matter of course the right of the courts to interpret the Constitution.   The Marshall Court made other ground-breaking decisions.  It established the idea that federal law can preempt or override state laws, and it allowed state court decisions to be appealed to the U.S. Supreme Court for the first time.   As the Court’s caseload increased over the years, it became necessary to appoint more justices.  The number varied over the years, but in 1869, Congress set the number of justices at nine, and it has remained at nine justices to this day. 

How are Justices Appointed?

Most people have a basic understanding of the process.  When a Supreme Court Justice dies or retires, the President of the United States nominates a replacement.  The President usually chooses his nominee from his own political party and often pulls his selection from the federal court system.  The Senate then holds a confirmation hearing where the nominee is either confirmed or rejected.  As you know from following the news, those hearings can be heated and contentious as senators question the nominee about his or her past decisions, political views, and other matters.  Supreme Court justices are appointed for life.  They cannot be fired.  That fact makes the justices immune from political influence.  They cannot be pressured by Congress or the President on how to decide a case. 

A justice can be impeached.  The only justice who ever faced impeachment charges was Samuel Chase in 1804.  He was impeached for allowing his partisan views to impact his decisions.  However, he was acquitted in his trial before the Senate and served on the Supreme Court until his death in 1811.   Over the years, there have been campaigns to impeach various justices, but none of them ever came to fruition. 

How Does the Court Select its Cases?

Every year about 7000 cases are submitted to the Court for review.  Naturally, the Court cannot consider all of them.  Most of the cases arrive requesting a “writ of certiorari.”  This is when one or both sides to a conflict ask the Court to review a lower court ruling.  If the Court elects to consider the case, it will issue the “writ.”    In addition to these 7000 submitted cases, another 1200 arrive addressed to specific justices.  These are requests for emergency legal action like restraining orders or stays of execution.  These go to the justice assigned to the federal circuit where the request originated.  A justice can handle these special requests on his or her own.  They do not require the full Court.

When the certiorari request cases arrive, the clerk of the court screens them to make sure they are in the appropriate form for review.  The cases then move on to the law clerks.  Each justice has 4 clerks.  The clerks are lawyers or recent law school graduates, selected by the justice for the job.  The clerks sort through the cases to decide which ones raise important legal and constitutional issues that are within the Court’s purview to decide.  Sorting through 7000 cases is a big job.  The justices will normally pool all their clerks together to handle the task.  The clerks then divide up the cases and draft memoranda analyzing the facts and legal issues in the cases they have selected.

The justices then gather together in a closed-door session and hash out the potential cases.  They use the so-called “rule of four.”  If at least 4 justices vote to consider a case, it is added to the docket.  The Court generally accepts about 150 of the 7000 cases submitted for review.  The cases accepted are then scheduled for oral argument.

How Cases are Decided

Oral argument is important.  The questions and answers that arise in oral argument often determine the course of the case and can shape the opinion.  After oral argument, the justices meet in conference to deliberate.  They meet on Wednesdays and Fridays to consider cases and decide how to rule.  Once the decision is reached, the most senior justice on the majority side selects the person to write the opinion.  The minority side also selects someone to write the dissent.  If a justice has a strong individual opinion on a case, that justice may add his or her own comments to the decision.  Law clerks help with the drafting, research, and revisions on the opinions, but the opinions are those of the justices, not the clerks.  Sometimes, a justice will start out in the majority, but by the time the opinion is drafted, have moved to the dissent.

After an opinion is revised and completed, a “master proof” is sent to the printers. About three-fourths of the cases considered end up as published decisions.  The justices then announce their decision from the courtroom.  The decision is then public and may be reported in the press.  United States Supreme Court decisions are the final authority on a legal issue.  A litigant cannot appeal to anyone higher.

Although a Supreme Court decision is the final word, there have been many instances in our country’s history where the Court has revisited a particular issue and changed its prior ruling.  One case in point was Plessy v. Ferguson, an 1896 case where the Court ruled the equal protection clause of the Constitution did not prohibit racial segregation in schools and public places so long as “separate but equal” facilities were offered to the other race.  The Supreme Court overturned Plessy v. Ferguson in 1954 in Brown v. Board of Education, when it held segregation in schools to be unconstitutional. The Brown case had a major impact on the growing civil rights movement, and it led to other changes in the law. The law is a living thing.  It changes and grows as society changes and grows.



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