Supreme Court of the United States
Justices are appointed by the president and confirmed by the Senate. The Constitution does not stipulate the size of the Court, leaving that determination to congressional statute. The familiar nine-member bench has been constant in size only since 1869; it began with six members in 1789 and had as many as ten justices in the period 1863 66. The Supreme Court of the United States is unique because it serves two functions, each of which must be carried on in a subtle relationship to the other. It is, first, a court of law, operating within the forms and rituals of Anglo-Saxon legal procedure with roots going back to 12th-century England; as such it is the highest court in the land, with a final authority over all adjudication whether originating in the federal or the state courts. Because its pronouncements on U.S. law are final, they become guides for every judge and lawyer in the nation. In addition to being a court of law, the Supreme Court is a policymaking body. It is a political institution in the sense that it exerts a commanding influence on the public policies of the United States, a fact that Alexis de Tocqueville recognized so perceptively in 1834 when he observed: "Scarcely any question arises in the United States that is not resolved, sooner or later, into a judicial question."
The U.S. judicial system is complex, with authority dispersed vertically among layers of local, state, and federal governments and horizontally among the branches of the national government. Because the entire scheme is controlled by a written constitution that enunciates general rules to guide and control those who wield power, there is a need for someone to see that the rules are interpreted and followed. Early in the country's history the Supreme Court assumed the role of referee, or overseer, not only to declare definitively what the rules are but to make certain that all public officials from police officer to the nation's president obey them. When the Supreme Court declared the Texas and Georgia abortion statutes unconstitutional in Roe v. Wade and Doe v. Bolton (1973), it was acting as a court in hearing argument on appeal from a lower federal court. Obviously, however, the court was also involved in a major public policy decision when it said that under the Constitution a woman has a right, although qualified, to terminate her pregnancy through an abortion.
How Cases Reach the Court
Certification. A lower federal court may send up a question of law for instructions, a process called certification.
Appeal. Eight categories of cases are appealed to the Court as a matter of right under the Judiciary Act of 1925. A litigant may appeal from the highest state court in which a decision may be had if the court (1) has invalidated a federal statute or treaty; or (2) has upheld its own law or constitutional provision allegedly in conflict with federal laws, treaties, or the U.S. Constitution. A litigant may appeal from a federal court of appeals if (1) a federal law or treaty has been declared unconstitutional; or (2) a state law or constitutional provision has been held to conflict with a federal law, treaty, or the Constitution. Finally, it is possible to appeal directly from a federal district court to the Supreme Court if (1) a federal statute with a criminal penalty is invalidated; (2) a judgment has been rendered under the antitrust laws, the Interstate Commerce Act, or Title II of the Federal Communications Act; (3) a three-judge court has either issued or denied an injunction to restrain enforcement of a state or federal law; or (4) a one-judge court has held a federal law unconstitutional.
The Court has some discretion in deciding whether to accept such cases. It may reject an appeal on the ground that the federal question raised is trivial or insubstantial, that the question was not validly raised in a state court, or that the state court's judgment might be sustained on an independent ground of state law. Thus the right of appeal is subject to certain technical restrictions.
Certiorari. Most of the cases reviewed by the Supreme Court reach the bench on a writ of certiorari, a Latin term meaning to be informed of or to be made certain in regard to. In English practice certiorari was a writ that commanded judges of inferior courts to return records or certify proceedings for review by a higher court, and this is essentially its practical meaning today. Prior to 1925 approximately 80 percent of the Supreme Court's appellate jurisdiction was obligatory, and, as a matter of course, the Court was not able to keep its docket clear. As a result of Chief Justice William Howard Taft's efforts, however, Congress enacted the Judiciary Act of 1925 under the terms of which, with the exceptions noted above, most cases became reviewable in the Supreme Court on a writ of certiorari. In a practical sense this legislation means that a person who loses a case in the lower courts, although usually unable to appeal to the Supreme Court as a matter of right, may petition the high court to grant a writ of certiorari. Because about 90 percent of the cases decided by the Supreme Court annually reach it by this method, the Court has considerable discretion over the kinds of cases it accepts.
Under the Court's rules, certiorari is granted only "where there are special and important reasons therefor." Among these reasons are the following possibilities: when two federal courts of appeals or two 3-judge federal district courts have rendered conflicting decisions; when a state court or a federal appellate court has passed on an important question of federal law on which the Supreme Court has never made a pronouncement; or when a federal court has so far departed from the accepted canons of judicial proceedings as to call for exercise of the Supreme Court's powers. Generally the Court accepts only 10 to 15% of the annual certiorari petitions.
The Process of Review. When a litigant who loses in a lower court wishes to take the case to the Supreme Court, he or she may send a request for a hearing, whether by appeal or certiorari, to the office of the chief justice, who circulates it among the eight associate justices. All nine justices take part in the decision whether to hear the case. The number of requests now totals more than 7,000 annually, of which only a small percentage are decided by full opinion. In the late 20th century the number of opinions handed down declined gradually from a high of 175 in 1986 to 90 in 1998. Every justice must personally review the records; if four justices are in favor of taking a case, it is placed on the docket. If a case is rejected, the decision of the last court in which it was heard stands; such a rejection does not, the Court maintains, necessarily indicate approval of the lower court's ruling. Once a case is accepted for review, it is placed on one of three dockets, the original, the appellate, or the miscellaneous the latter including a large number of petitions, often handwritten, filed by indigent persons, many of whom are serving time in prison. Any person who executes an oath that he or she is without any financial resources may, under a federal statute, sue in forma pauperis (as a poor person) in any federal court without paying filing fees, transcript costs, or other expenses usually connected with a lawsuit.
How the Court Operates
Attorneys submit written briefs to the Court. Oral argument gives the justices a chance to ask questions and add to their knowledge of a case. It also gives the public an opportunity to see the Court in action (188 seats are available on a first-come, first-served basis), although the Court's most important work is done behind closed doors. In the Court's early years, lawyers might have argued a case for days, but attorneys are now usually limited to half an hour. No opinion is written or decision rendered until after the Court has met in conference and discussed the cases. The conference is unusual for a public body because it is closed to all but the nine justices. No official record is kept, and whatever is said remains forever secret unless the justices wish to divulge something, which they rarely do. Justice Hugo L. Black believed so strongly in the principle of conference confidentiality that he specified in his will that the informal notes he had taken during conferences be destroyed at his death.
Presiding over the conference is one of the most important tasks of the chief justice, who may in this role exert a special influence over colleague justices. The chief justice presents the cases for discussion, controls the debate, and assigns the writing of opinions. The chief justice presents his view of the case first, then elicits the opinions of the other justices in order of seniority. After all have expressed their views, the chief announces how he is recording the vote in the case, ascertaining that all agree with his count. If the chief justice is in the majority, he will later formally assign the writing of the opinion; if he is in dissent, the most senior justice in the majority makes the assignment. Although the assigning of opinions is simply a parceling out of the work, some political strategy is involved, because the opinion of a particular justice may carry more weight on a given question than that of others. Some develop special expertise; some are more highly respected generally. For example, Justice William Brennan, after writing the opinion in Roth v. United States (1957), became the Court's expert on obscenity and wrote the opinions in the significant obscenity cases that followed. It seemed most appropriate that Justice Black write the opinion in Gideon v. Wainwright (1963), when the constitutional right to counsel was extended to state courts through the 14th Amendment, because Black had been advocating this right to counsel for a decade and a half. Chief justices tend to write some of the most controversial opinions, but generally all of the justices are given the opportunity to speak for the Court in significant cases.
All justices may record their own views of a case. If a justice is among the majority, but disagrees with the reasoning supporting the decision, that justice may write a concurring opinion in which the view is expressed that although the case was correctly decided, it should have been supported on different constitutional grounds. Any or all of those who believe that the case was wrongly decided may write dissenting opinions in which they marshal the arguments for their position. Until John Marshall became chief justice in 1801, the Court presented its opinions seriatim that is, each justice wrote an opinion of the law in each case, an arrangement that made it difficult for lawyers to determine precisely what had been decided. Marshall instituted the system described above, which has prevailed. Although some critics of the Court bemoan many of its decisions not being unanimous, it may be argued that given the difficult and controversial nature of the cases that they decide the easier ones having already been disposed of by lower courts it is a wonder that the justices agree as much as they do. Often they are unanimous, and rarely are so many opinions written in a case that the constitutional question involved remains unsettled. Examples of such a situation are New York Times Company v. United States (1971) and University of California v. Bakke (1978). Nine separate opinions were written in the first case and five in the second. In each instance the law was left fragmented and uncertain, inviting additional litigation.
When a justice has completed a written opinion it is circulated among the other justices for comment. This review is done not only with the assigned majority opinion but with the concurrences and dissents as well. The final opinions that emerge from this interaction often differ from the original versions as the authors take into account the critiques of their colleagues, and occasionally a vote is changed. All of these negotiations are carried on in private, as are the original discussion and voting, and the final opinions are announced publicly from the bench.
The justice who has written the majority opinion, which becomes the official opinion of the Court, delivers it from the bench. Over the years the style has varied with the individual justice. Some simply read the opinion in full; others summarize the major points. Justice Felix Frankfurter used to amaze reporters and onlookers by expounding his opinions from memory, including the citing of volume and page numbers of pertinent cases bearing on the one at hand. The process of handing down opinions may take from an hour to several days, depending on the number of decisions and the styles of the justices involved.
A Supreme Court justice has one of the most demanding jobs in the world. Over a half-century ago Chief Justice Taft would rise at 5:15 A.M., work for almost 4 hours before walking to the Capitol where the Court was housed, and, after the end of the Court session at 4:30 P.M., work until 10:00 P.M. with an hour out for dinner. Taft talked of the "exhausting character" of the judicial work (a reason for his efforts to have the Judiciary Act of 1925 passed in order to lighten the workload). Charles Evans Hughes, who had been an active lawyer, governor of New York, and a vigorous presidential candidate, said that service on the Court was the toughest job of all. Today the justices are more hard pressed than ever. They handle the ever-increasing business partly by confining to a minimum the number of cases in which they render a full opinion, but they also use a larger number of law clerks. Each justice takes on top-ranking law graduates who serve for a year or two and handle much of the preliminary work leading to a final opinion or to a justice's decision to vote for or against granting review. Some former law clerks have become justices themselves, including, in recent years, William Rehnquist, Byron White, John P. Stevens, and Stephen G. Breyer.
The Court As Political Force
The Supreme Court emerged once again as a major force in American life under the chief justiceship of Earl Warren from 1953 to 1969. Known for its consistent protection of civil liberties, the Warren Court will be remembered particularly for three revolutionary decisions: Brown v. Board of Education of Topeka, Kansas (1954), which outlawed segregation in the public schools and spearheaded the civil rights movement of the 1950s and 1960s; Baker v. Carr (1962), which ordered equitable reapportionment of the state legislatures and guaranteed a close approximation of the "one man one vote" principle; and Miranda v. Arizona (1966), which required police to inform suspects of their rights before interrogating them.
Although the Court under Chief Justice Burger (1969 86) retreated from some Warren positions, it did not overrule any of the major Warren decisions. It stirred major controversy with its 1973 decision in Roe v. Wade, striking down state laws prohibiting abortion. The Court's independence, integrity, and responsibility were brought into sharp focus when it unanimously ordered President Richard M. Nixon to obey a subpoena directing him to surrender tape recordings of conversations made in the White House. Within a few days of the decision in United States v. Richard M. Nixon (1974), the president resigned.
During the period 1980 92 the Court was in transition as Republican presidents Ronald Reagan and George Bush made five appointments. In 1981, Sandra Day O'Connor, the first woman to sit on the high bench, replaced retiring Potter Stewart. When Chief Justice Warren Burger retired in 1986, President Reagan elevated William Rehnquist to the chief justiceship and named Antonin Scalia to Rehnquist's former seat. Anthony Kennedy became Lewis Powell's replacement in 1988. President Bush appointed David Souter to the vacated seat of William Brennan in 1990 and chose Clarence Thomas, a black conservative, to replace the liberal Thurgood Marshall the following year. In 1993, Ruth Bader Ginsburg acceded to the seat vacated by resignee Byron White. Her appointment by Bill Clinton was the first made by a Democratic president in 25 years. The next year Clinton appointed the 108th Supreme Court justice, Stephen G. Breyer, to replace Harry A. Blackmun. Although partisan politics has generally played a role in the presidents' selections of justices, politicization of the nominating process became more pronounced in the 1980s and '90s. Some critics have suggested that presidents will attempt to avoid political adversity by appointing bland nominees whose records are noncontroversial and not subject to attack. Thus a new wave of justices may be competent but unexciting and even pedestrian.
Under Rehnquist's leadership the Court's jurisprudence tended toward restraint (deference to the popularly elected branches), literalism (basing decisions on the constitutional text as understood when written), localism (respect for federalism and state autonomy), and stare decisis (adherence to precedent and modifying rather than overruling past decisions). During the Rehnquist years it has been difficult to discern any unifying theme or any predictable alignment of the justices. Only in cases involving federalism in which the Court has been redefining the proper constitutional spheres between the states and the national government has there been a steady majority of five (Rehnquist, Scalia, Thomas, O'Connor, and Kennedy) voting to curb national power. In other areas, notably civil liberties, alliances have shifted depending on the issues. Collectively, the judicial results have been moderately conservative. Roe v. Wade remained the law through the 1990s, albeit with some modifications. In 1989 the Court upheld a state law prohibiting the use of public facilities or employees to perform abortions (Webster v. Reproductive Health Services), and in 1990 it approved state laws requiring parental notification before an unmarried minor could obtain an abortion (Ohio v. Akron Center for Reproductive Health). In 1992 the Court upheld further restrictions, including a waiting period of 24 hours after a woman's request for an abortion (Planned Parenthood v. Casey).
In freedom of speech cases the Court maintained a strong protective posture, upholding the right to burn an American flag as a symbolic protest (Texas v. Johnson, 1989) and the right to display symbols, including cross burning, that arouse anger in others on the basis of race, color, creed, or gender (R.A.V. v. St. Paul, 1992). It also held that a school board might not deny the use of school premises to a church seeking to discuss public issues (Lamb's Chapel v. Center Moriches, 1993). Additional cases protecting free speech include Rosenberger v. University of Virginia (1995), holding that a university may not withhold funds from a campus religious newspaper on the ground that it violated the establishment clause; Reno v. American Civil Liberties Union (1996), in which the Court held that Congress lacks the power to criminalize the display of indecent material online; Buckley v. American Law Foundation (1999), in which the Court invalidated several of Colorado's restrictions on the signature-gathering process for ballot-initiative petitions as a violation of free speech; and in Hurley v. Irish American Gay Group (1995) the Court held that a municipality violates the free-speech rights of private sponsors of a parade by forcing them to include gays, lesbians, and bisexuals. On the other hand, in National Endowment for the Arts v. Finley (1998) the Court held that a law requiring the National Endowment for the Arts to consider "standards of decency" in awarding grants did not violate the right to free speech. Nor did a lower-court injunction keeping antiabortion demonstrators at least 15 ft (4.6 m) from the entryways to abortion clinics (Schenk v. Pro-Choice Network, 1996).
In interpreting the religion clauses of the 1st Amendment the Court maintained that a city's right to include a Nativity scene in a public Christmas display did not violate the "establishment clause" (Lynch v. Donnelly, 1984) but held violative of the clause the invocation and benediction by the clergy at a public secondary school graduation (Lee v. Weisman, 1992). Under the "free exercise clause" the Court held that a person might not claim unemployment insurance benefits after discharge for using peyote (an illegal drug) in a religious ceremony (Employment Division v. Smith, 1990), but it invalidated a city ordinance regulating animal sacrifice that effectively prohibited only sacrifice as practiced by the Santeria religion (Church of Lukumi v. Hialeah, 1993). In two cases involving the religion clauses as they affect public schools, the Court in one (Board of Education v. Grumet (1994) held that a New York statute creating a public school district for a Hasidic Jewish village violated the establishment clause, but in the other, Agostini v. Felton (1997), it held permissible the use of public school teachers to teach specially financed remedial classes on the premises of parochial schools.
Criminal defendants' rights were curtailed in part as the Miranda rule was qualified in more than a dozen cases. Coerced confessions no longer result in automatic reversal of a conviction, but may be subject to the "harmless error" rule when erroneously admitted in evidence (Arizona v. Fulminante, 1991); death-row appeals are limited to one with carefully defined exceptions (McCleskey v. Zant, 1991; and warrantless searches of closed containers found in automobiles are now permissible (California v. Acevedo, 1991). In 1984 the Court narrowed the exclusionary rule by allowing the use of illegally seized evidence: first, with proof that the police would have "inevitably discovered" the evidence lawfully (Nix v. Williams) and, second, under a defective warrant that was the fault of the issuing magistrate and not the police (United States v. Leon). In several cases the court continued to uphold warrantless searches of the occupants of an automobile, including a search disclosing drug evidence (Pennsylvania v. Labron, 1996) and a search of persons not suspected of any crime so long as there is probable cause to believe that one of the travel companions has committed an offense justifying the search (Wyoming v. Houghton, 1999). With respect to drug testing the court ruled in Chandler v. Miller (1997) that a Georgia law requiring candidates for public office to be tested and certified drug free violated the 4th Amendment's prohibition of unreasonable searches and seizures, but in Vernonia School District v. Acton (1995) it ruled that drug testing of students participating in athletic programs did not violate the 4th Amendment.
Recasting the standards of affirmative action, the formal effort to improve opportunities for minorities, the Court overruled Griggs v. Duke Power Co. (1971), moving the burden of proof to the person alleging discriminatory hiring or promotion practices rather than requiring the employer to prove its absence (Ward's Cove Packing Co. v. Atonio, 1989). Further indication of the emerging majority position that racially based legal preferences are constitutionally infirm was the decision in Shaw v. Reno (1993) that disapproved the distorted shaping of electoral districts simply to create greater minority representation. The principle was reaffirmed when the Court in 1995 (Miller v. Johnson) and 1997 (Abrams v. Johnson) again rejected race based congressional districting. Gender discrimination was also firmly prohibited when the court declared the Virginia Military Institute's male-only admissions policy unconstitutional (United States v. Virginia, 1996).
In several cases the Rehnquist Court has woven new principles into the fabric of constitutional law. To cite a few examples, the Court upheld the right of a state to prohibit doctor-assisted suicide (Washington v. Glucksberg, 1997) and for the first time revitalized the privileges-and-immunities clause of the 14th Amendment by holding that a California law awarding lower welfare benefits to new state residents, confining them to benefits they would have received in their previous states of residence, was unconstitutional (Saenz v. Roe, 1999). It also held in Lunding v. N.Y. Tax Appeals Tribunal (1998) that a state violated the privileges-and-immunities clause of Article IV when it denied nonresidents any deduction from taxable income for alimony payments while allowing residents to deduct such payments. Although "privileges and immunities" are not defined in either clause, the intention of the framers in Article IV was to prevent a state from discriminating against citizens of sister states, whereas the intent of the similar clause of the 14th Amendment was to prevent the states from abrogating any rights that adhere to national citizenship. In cases involving the structure of government particularly federalism and the separation of powers the Rehnquist Court may have left an enduring legacy. Typical of the Court's judicial posture with respect to national and state powers were the decisions in Printz v. U.S. (1997), which held that Congress may not require local law-enforcement authorities to perform background checks of would-be handgun buyers, and Alden v. Maine (1999), which ruled that state sovereign immunity prevents Congress from subjecting a nonconsenting state to private lawsuits for damages in its own courts. In a landmark case (President Clinton v. City of New York, 1998) involving the separation of powers, the Court held that the Line Item Veto Act of 1996, which gave the president the power to cancel provisions of statutes he has signed into law, was unconstitutional. In a curb on presidential power, the Court ruled for the first time that a sitting president may be subject to a lawsuit based on acts committed outside his official duties (Clinton v. Jones, 1998).
It should be pointed out that a large part of the Supreme Court's labors does not involve the constitutionality of laws but rather the interpretation, clarification, and application of valid statutes. By the very nature of the legislative process, laws are at best open textured and, at worst, vague, and the Court must determine what the statutory language means. Several cases involving statutory interpretation by the Rehnquist Court have had a significant impact on public policy. For instance, in Bragdon v. Abbott (1998) the Court ruled that the Americans with Disabilities Act protects persons infected with the virus that causes AIDS against discrimination even if they show no symptoms of the disease. Also, in two cases that arose in 1998 under Title VII of the Civil Rights Act of 1964 the Court interpreted the vague language of Title VII to outlaw sexual harassment (Faragher v. City of Boca Raton and Burlington Industries v. Ellerth). In a third case the Court expanded the category of victims to those alleging harassment by persons of the same sex (Oncale v. Sundowner Offshore Services, 1998). And in interpreting the Census Act the Court held that the act forbids the use of statistical sampling to determine the population count for the purpose of congressional apportionment (Department of Commerce v. U.S. House of Representatives, 1999). It should be noted that Congress may overrule the Supreme Court on statutory interpretation, unlike a decision on unconstitutionality, which requires a constitutional amendment to overrule a decision of the Court.
Viewing the Court in historical perspective, it is notable that precedent, respect for the Constitution, the Anglo-American legal tradition, continuity through life tenure, and self-imposed discipline confine the Court's decision making within relatively narrow boundaries. Usually changes in American constitutional law occur incrementally, not abruptly, and over time the Court's view of the nation's policies tend to conform to those held by the American public. Only when the Court strays too far from the language of the Constitution, as it did in the abortion decision, does it invite bitter criticism from a large segment of the citizenry. Although the Rehnquist Court has introduced some new principles into American constitutional law, its decisions have been relatively free of twisted or distorted constitutional linguistics. Like its predecessors, it continues to be a captive as well as a creator of history.
Unfortunately, the Rehnquist court may not be remembered for its judicial achievements but for its decision in one case, Bush v. Gore (2000). In the presidential election of 2000 the returns indicated that Republican candidate George W. Bush had 246 electoral votes to Democrat Al Gore's 262, not including Florida's 25 votes, which were in dispute. In this painfully close election neither candidate could attain a majority in the electoral college without Florida's votes. Bush had been certified the winner in Florida with a popular-vote margin of 537, but the Gore campaign persuaded the Florida Supreme Court to order a manual recount of all ballots in the state for which machine counts had shown no vote for president. On appeal by Bush's lawyers, the U.S. Supreme Court reversed the Florida court by ordering an end to all recounts. Seven justices agreed that the Florida system presented equal protection and due process problems, but only a majority of five concurred in ordering an end to all recounting, which in effect confirmed Florida's official certification of Bush as the winner. Since all five justices voting in the majority had been appointed by Republican presidents, the Court was subject to a barrage of criticism by the legal community and the media, accusing the judges of voting on the basis of political ideology rather than judicial propriety. On the other hand, two of the justices in the minority, Stevens and Souter, had also been appointed by Republican presidents. In any event the Court's image of impartiality was certainly tarnished, but how much and for how long only time will tell.
Robert J. Steamer
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