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Supreme Court of the United States

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Supreme Court of the United States
Seal of the United States Supreme Court.svg
Established March 4, 1789; 231 years ago[1]
Location Washington, D.C.
Coordinates 38°53′26″N 77°00′16″WCoordinates38°53′26″N 77°00′16″W
Composition method Presidential nomination with Senate confirmation
Authorized by Constitution of the United States
Judge term length Life tenure
Number of positions 9 (by statute)
Website www.supremecourt.gov
Chief Justice of the United States
Currently John Roberts
Since September 29, 2005; 14 years ago

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America. It has ultimate (and largely discretionaryappellate jurisdiction over all federal and state court cases that involve a point of federal law, and original jurisdiction over a narrow range of cases, specifically “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party”.[2] The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law.[3] However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones, but it has ruled that it does not have power to decide non-justiciable political questions.

Established by Article III of the Constitution, the composition and procedures of the Supreme Court were initially established by the 1st Congress through the Judiciary Act of 1789. As later set by the Judiciary Act of 1869, the Court consists of the chief justice of the United States and eight associate justices. Each justice has lifetime tenure, meaning they remain on the Court until they resign, retire, die, or are removed from office.[4] When a vacancy occurs, the president, with the advice and consent of the Senate, appoints a new justice. Each justice has a single vote in deciding the cases argued before it. When in majority, the chief justice decides who writes the opinion of the court; otherwise, the most senior justice in the majority assigns the task of writing the opinion.

The Court meets in the Supreme Court Building in Washington, D.C. Its law enforcement arm is the Supreme Court Police.

History[edit]

It was while debating the separation of powers between the legislative and executive departments that delegates to the 1787 Constitutional Convention established the parameters for the national judiciary. Creating a “third branch” of government was a novel idea; in the English tradition, judicial matters had been treated as an aspect of royal (executive) authority. Early on, the delegates who were opposed to having a strong central government argued that national laws could be enforced by state courts, while others, including James Madison, advocated for a national judicial authority consisting of various tribunals chosen by the national legislature. It was also proposed that the judiciary should have a role in checking the executive’s power to veto or revise laws. In the end, the framers compromised by sketching only a general outline of the judiciary, vesting federal judicial power in “one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”.[5][6] They delineated neither the exact powers and prerogatives of the Supreme Court nor the organization of the judicial branch as a whole.

The Royal Exchange, New York City, first meeting place of the Supreme Court

The 1st United States Congress provided the detailed organization of a federal judiciary through the Judiciary Act of 1789. The Supreme Court, the country’s highest judicial tribunal, was to sit in the nation’s Capital and would initially be composed of a chief justice and five associate justices. The act also divided the country into judicial districts, which were in turn organized into circuits. Justices were required to “ride circuit” and hold circuit court twice a year in their assigned judicial district.[7]

Immediately after signing the act into law, President George Washington nominated the following people to serve on the court: John Jay for chief justice and John RutledgeWilliam CushingRobert H. HarrisonJames Wilson, and John Blair Jr. as associate justices. All six were confirmed by the Senate on September 26, 1789. Harrison, however, declined to serve. In his place, Washington later nominated James Iredell.[8]

The Supreme Court held its inaugural session from February 2 through February 10, 1790, at the Royal Exchange in New York City, then the U.S. capital.[9] A second session was held there in August 1790.[10] The earliest sessions of the court were devoted to organizational proceedings, as the first cases did not reach it until 1791.[7] When the national capital moved to Philadelphia in 1790, the Supreme Court did so as well. After initially meeting at Independence Hall, the Court established its chambers at City Hall.[11]

Earliest beginnings through Marshall[edit]

Chief Justice Marshall (1801–1835)

Under Chief Justices JayRutledge, and Ellsworth (1789–1801), the Court heard few cases; its first decision was West v. Barnes (1791), a case involving procedure.[12] As the Court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two).[13] However, Congress has always allowed less than the court’s full membership to make decisions, starting with a quorum of four justices in 1789.[14] The court lacked a home of its own and had little prestige,[15] a situation not helped by the era’s highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.[16]

The court’s power and prestige grew substantially during the Marshall Court (1801–1835).[17] Under Marshall, the court established the power of judicial review over acts of Congress,[18] including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[19][20] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states (notably, Martin v. Hunter’s LesseeMcCulloch v. Maryland and Gibbons v. Ogden).[21][22][23][24]

The Marshall Court also ended the practice of each justice issuing his opinion seriatim,[25] a remnant of British tradition,[26] and instead issuing a single majority opinion.[25] Also during Marshall’s tenure, although beyond the Court’s control, the impeachment and acquittal of Justice Samuel Chase in 1804–05 helped cement the principle of judicial independence.[27][28]

From Taney to Taft[edit]

The Taney Court (1836–1864) made several important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects.[29] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,[30] which helped precipitate the Civil War.[31] In the Reconstruction era, the ChaseWaite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution[24] and developed the doctrine of substantive due process (Lochner v. New York;[32] Adair v. United States).[33]

Under the White and Taft Courts (1910–1930), the Court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states (Gitlow v. New York),[34] grappled with the new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the constitutionality of military conscription (Selective Draft Law Cases)[35] and brought the substantive due process doctrine to its first apogee (Adkins v. Children’s Hospital).[36]

New Deal era[edit]

The Court seated

The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis BrandeisBenjamin N. CardozoHarlan StoneOwen Roberts, and the “Four Horsemen” Pierce ButlerJames Clark McReynoldsGeorge Sutherland, and Willis Van Devanter, who opposed New Deal policies.

During the HughesStone, and Vinson Courts (1930–1953), the Court gained its own accommodation in 1935[37] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin Roosevelt‘s New Deal (most prominently West Coast Hotel Co. v. ParrishWickard v. FilburnUnited States v. Darby and United States v. Butler).[38][39][40] During World War II, the Court continued to favor government power, upholding the internment of Japanese citizens (Korematsu v. United States) and the mandatory pledge of allegiance (Minersville School District v. Gobitis). Nevertheless, Gobitis was soon repudiated (West Virginia State Board of Education v. Barnette), and the Steel Seizure Case restricted the pro-government trend.

Warren and Burger[edit]

The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties.[41] It held that segregation in public schools violates equal protection (Brown v. Board of EducationBolling v. Sharpe and Green v. County School Bd.)[42] and that traditional legislative district boundaries violated the right to vote (Reynolds v. Sims). It created a general right to privacy (Griswold v. Connecticut),[43] limited the role of religion in public school (most prominently Engel v. Vitale and Abington School District v. Schempp),[44][45] incorporated most guarantees of the Bill of Rights against the States—prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright (right to appointed counsel),[46][47]—and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona).[48] At the same time, however, the Court limited defamation suits by public figures (New York Times v. Sullivan) and supplied the government with an unbroken run of antitrust victories.[49]

The Burger Court (1969–1986) marked a conservative shift.[50] It also expanded Griswold’s right to privacy to strike down abortion laws (Roe v. Wade),[51] but divided deeply on affirmative action (Regents of the University of California v. Bakke)[52] and campaign finance regulation (Buckley v. Valeo).[53] It also wavered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),[54] but later, that the death penalty itself was not unconstitutional (Gregg v. Georgia).[54][55][56]

Rehnquist and Roberts[edit]

Justices of the Supreme Court with President George W. Bush (center), October 2005.

The Rehnquist Court (1986–2005) was noted for its revival of judicial enforcement of federalism,[57] emphasizing the limits of the Constitution’s affirmative grants of power (United States v. Lopez) and the force of its restrictions on those powers (Seminole Tribe v. FloridaCity of Boerne v. Flores).[58][59][60][61][62] It struck down single-sex state schools as a violation of equal protection (United States v. Virginia), laws against sodomy as violations of substantive due process (Lawrence v. Texas),[63] and the line item veto (Clinton v. New York), but upheld school vouchers (Zelman v. Simmons-Harris) and reaffirmed Roe’s restrictions on abortion laws (Planned Parenthood v. Casey).[64] The Court’s decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000, was especially controversial.[65][66]

The Roberts Court (2005–present) is regarded as more conservative than the Rehnquist Court.[67][68][69][70] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (TwomblyIqbal), abortion (Gonzales v. Carhart),[71] climate change (Massachusetts v. EPA), same-sex marriage (United States v. Windsor and Obergefell v. Hodges) and the Bill of Rights, notably in Citizens United v. Federal Election Commission (First Amendment),[72] HellerMcDonald (Second Amendment)[73] and Baze v. Rees (Eighth Amendment).[74][75]

Composition[edit]

Size of the court[edit]

Article III of the Constitution sets neither the size of the Supreme Court nor any specific positions on it (though existence of the office of chief justice is tacitly acknowledged in Article I, Section 3, Clause 6). Instead, these powers are entrusted to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through Judiciary Act of 1789. The size of the Court was first altered by an 1801 act which would have reduced the size of the court to five members upon its next vacancy, but an 1802 act promptly negated the 1801 act, legally restoring the court’s size to six members before any such vacancy occurred. As the nation’s boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807nine in 1837, and ten in 1863.[76]

In 1866, at the behest of Chief Justice Chase and in an attempt to limit the power of Andrew Johnson, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine,[77] where it has since remained.

President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to “pack” the Court with justices who would support Roosevelt’s New Deal.[78] The plan, usually called the “court-packing plan“, failed in Congress.[79] Nevertheless, the Court’s balance began to shift within months when Justice Willis Van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice.[80]

Appointment and confirmation[edit]

Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.[81]

Flowchart showing process of appointment of United States Supreme Court justices.

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group’s views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee’s practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955.[82] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.

Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson‘s nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas’s ethics. President Donald Trump‘s nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia‘s death was the second. Unlike the Fortas filibuster, however, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority’s prior refusal to take up President Barack Obama‘s nomination of Merrick Garland to fill the vacancy.[83] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.[84]

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred most recently with President George W. Bush‘s nomination of Harriet Miers in 2006. The Senate may also fail to act on a nomination, which expires at the end of the session. For example, President Dwight Eisenhower‘s first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, as previously noted, the Senate failed to act on the March 2016 nomination of Merrick Garland; the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump.[85]

Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the new justice can take office.[86] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[87] The importance of commissioning is underscored by the case of Edwin M. Stanton. Although appointed to the court on December 19, 1869, by President Ulysses S. Grant and confirmed by the Senate a few days later, Stanton died on December 24, prior to receiving his commission. He is not, therefore, considered to have been an actual member of the court.

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.[88] According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).[89][90]

Recess appointments[edit]

When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.[91]

No president since Dwight D. Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts.[92] In 1960, after Eisenhower had made three such appointments, the Senate passed a “sense of the Senate” resolution that recess appointments to the Court should only be made in “unusual circumstances”.[93] Such resolutions are not legally binding but are an expression of Congress’s views in the hope of guiding executive action.[93][94]

The Supreme Court’s 2014 decision in National Labor Relations Board v. Noel Canning limited the ability of the President to make recess appointments (including appointments to the Supreme Court); the Court ruled that the Senate decides when the Senate is in session (or in recess). Writing for the Court, Justice Breyer stated, “We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business.”[95] This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions.[96]

Tenure[edit]

The interior of the United States Supreme Court

The interior of the United States Supreme Court

The Constitution provides that justices “shall hold their offices during good behavior” (unless appointed during a Senate recess). The term “good behavior” is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign, or retire.[97] Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805).[98] Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969), but they did not reach a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.[99]

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 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 to succeed Harry Blackmun and the nomination of John Roberts in 2005 to fill the seat of Sandra Day O’Connor (though Roberts’ nomination was withdrawn and resubmitted for the role of Chief Justice after Rehnquist died).

Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the CourtJimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Somewhat similarly, presidents James MonroeFranklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.

Membership[edit]

Current justices[edit]

The Supreme Court consists of a chief justice, currently John Roberts, and eight associate justices. Among the current members of the Court, Clarence Thomas is the longest-serving justice, with a tenure of 10,430 days (28 years, 203 days) as of May 13, 2020; the most recent justice to join the court is Brett Kavanaugh, whose tenure began on October 6, 2018.

Justice /
birthdate and place
Appointed by SCV Age at Start date /
length of service
Previous position or office
(most recent prior to joining the Court)
Succeeded
Start Present
File-Official roberts CJ cropped.jpg John Roberts
January 27, 1955
Buffalo, New York
G. W. Bush 78–22 50 65 September 29, 2005
14 years, 227 days
Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005) Rehnquist
Clarence Thomas, official SCOTUS portrait, crop.jpg Clarence Thomas
June 23, 1948
Pin Point, Georgia
G. H. W. Bush 52–48 43 71 October 23, 1991
28 years, 203 days
Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991) Marshall
Ruth Bader Ginsburg, official SCOTUS portrait, crop.jpg Ruth Bader Ginsburg
March 15, 1933
Brooklyn, New York
Clinton 96–3 60 87 August 10, 1993
26 years, 277 days
Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993) White
Stephen Breyer official SCOTUS portrait crop.jpg Stephen Breyer
August 15, 1938
San Francisco, California
Clinton 87–9 55 81 August 3, 1994
25 years, 284 days
Chief Judge, Court of Appeals for the First Circuit (1990–1994) Blackmun
Samuel Alito official photo (cropped).jpg Samuel Alito
April 1, 1950
Trenton, New Jersey
G. W. Bush 58–42 55 70 January 31, 2006
14 years, 103 days
Circuit Judge, Court of Appeals for the Third Circuit (1990–2006) O’Connor
Sonia Sotomayor in SCOTUS robe crop.jpg Sonia Sotomayor
June 25, 1954
The Bronx, New York
Obama

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