(From Grolier Multimedia Encyclopedia)

Supreme Court of the United States

Supreme Court of the United States, the court that heads the judicial branch of the U.S. government. It is undoubtedly the world's most powerful tribunal. The court's unusual authority derives from its dual legal and political roles, for it is the nation's highest appellate law court and at the same time the official interpreter and expounder of the U.S. Constitution. Because many of the most important provisions of the Constitution are extremely broad and offer much room for difference of opinion, the court's influence in the political development of the American republic has been very great, often exceeding that of the president or Congress.

The Supreme Court was created directly by Article III of the Constitution and entrusted with "the judicial Power of the United States." It is headed by the chief justice of the United States, who in ceremonies of state is the third-ranking official, after the president and vice president. The chief justice presides over the court in its public sessions and its private conferences and, acting through the Administrative Office of the U.S. Courts and the Judicial Conference, directs the administration of the federal judicial system.

The number of judges on the court is fixed by Congress, not by the Constitution. The Supreme Court was originally composed of six members but was subsequently both increased and reduced by Congress. Since 1869 the size of the court has remained fixed at nine members. Justices of the Supreme Court and all other federal judges are appointed by the president, by and with the advice and consent of the Senate. They serve "during good Behaviour," which in effect means life tenure.

Jurisdiction

The function of the Supreme Court, according to the U.S. Constitution, is to decide "cases" and "controversies." The cases it hears come to it in three ways. First, the Constitution defines two classes of cases that are in the court's original jurisdiction, that is, that are heard without prior consideration by any other court. Such cases, comparatively few, are (1) those in which a state is a party and (2) those affecting foreign ambassadors and ministers.

Second, the Supreme Court receives appeals from the lower federal courts: 93 district courts, 11 courts of appeals, and a few specialized tribunals, such as the U.S. court of claims. Although the Supreme Court has a statutory obligation to hear certain types of appeals, most cases come up for review on the writ of certiorari, a discretionary writ that the court can grant or refuse as it sees fit. The writ is granted on the affirmative vote of four justices. Thus the court is largely free to decide only cases that present issues of public importance.

Third, the court reviews appeals from state supreme courts that present a substantial "federal question," generally where a federal constitutional right has been denied in the state courts. Article VI makes the federal Constitution, laws, and treaties "the supreme Law of the Land" and binding on state judges. Review by the Supreme Court enforces this obligation.

Limitations. Because the Supreme Court has the power to interpret the Constitution and to declare acts of the president and congressional statutes unconstitutional, the American system is often referred to as one of "judicial supremacy." The court is limited, however, by the countervailing powers of the other two branches. The president can arouse public opinion against court decisions to which he or she objects but has the greatest influence on the court through the appointment of the justices. The president must, of course, keep in mind the need to secure Senate confirmation. About one-fifth of the nominees to the court have been rejected or not acted on by the Senate; nevertheless, only four nominees have been rejected in the 20th century.

Congress exercises pressure on the court principally by initiating legislation or constitutional amendments to reverse judicial interpretations, but it can also threaten impeachment. The Constitution even provides that the appellate jurisdiction of the court is subject to "such Regulations as the Congress shall make." This language suggests the theoretical possibility that an unfriendly Congress could partially or completely deny the Supreme Court its appellate jurisdiction. Although action of this sort has occasionally been threatened, it is highly unlikely to happen.

Conduct of Business. The Supreme Court occupies a stately marble building in Washington, D.C., where its annual term runs from October to June. The court sits for four hours daily, Monday through Wednesday, to hear cases and to hand down decisions. Oral argument, usually limited to one-half hour for each side, permits counsel to summarize and clarify positions taken in the written briefs and allows the justices to put questions.

On Friday of each week when the court has been sitting, the justices meet in closed conference to decide cases heard that week. The chief justice presents each case that is ready for decisions, with his or her comments. Discussion is then continued by the associate justices in order of seniority. After all have spoken, the vote is taken, with the most junior justice voting first and the chief justice last. The chief justice decides who shall write the opinion for the court, except that where there is a divided vote and the chief justice is in the minority, the senior associate justice in the majority controls the assignment. Drafts of opinions are circulated among the justices, and the author may revise the final opinion on the basis of his or her colleagues' comments. Justices who differ from the opinion of the court are free to file dissenting opinions.

Political History of the Court

It is possible to distinguish four periods in the history of the Supreme Court's activity as a major participant in the development of national policies. In the first period, extending from the founding of the nation to the Civil War, the court's major emphasis was on strengthening the authority of the national government and establishing its own claim to supremacy in interpreting the Constitution. From the Civil War to the New Deal of the 1930s, the court's mission was principally to protect the growing capitalist industrial development from legislative regulation. In the third period, from the late 1930s through the 1970s, the emphasis shifted from economic freedom to civil liberties, and the court emerged as the national guardian of individual rights. In the fourth period, beginning about 1980, the court moved in the direction of political conservatism.

From the Founding to the Civil War. The first decade of the court's history gave little indication of its subsequent stature. President Washington's appointees were all Federalists sympathetic to the administration, and the entire federal judiciary quickly developed a partisan tone. Two of the first three chief justices, John Jay and Oliver Ellsworth, resigned after a few years, and the other, John Rutledge, was refused confirmation by the Senate after four months in office. Justice Samuel Chase openly pronounced his Federalist political views on the bench. When Jefferson became president, Chase was impeached but escaped conviction.

Though the court heard comparatively few cases during its first decade, it did establish its own authority and that of the new nation. When President Washington submitted some legal questions in the field of foreign relations for judicial advice, the court declared that its constitutional role was only to decide actual controversies, not to render advisory opinions.

The court strongly supported federal authority against the states. Ware v. Hylton (1796) held that the treaty of peace with Britain overrode a Virginia law on the issue of debts owed by Americans to British subjects. In Chisholm v. Georgia (1793) the court unwisely attacked state sovereignty by interpreting Article III to mean that a state could be sued in federal courts by the citizens of another state. This holding was so bitterly resented by the states that the 11th Amendment was promptly adopted to override it.

One month before Jefferson's inauguration in 1801, John Marshall of Virginia was named chief justice by the outgoing president, John Adams. For 35 years Marshall dominated the court and did more than any other justice to determine its character and that of the federal constitutional system. His courage, his convictions, and the intellectual force of his opinions raised the court to a position of equality with the president and Congress.

Marshall's greatest success was Marbury v. Madison (1803), in which he held that the Supreme Court had the power to declare acts of Congress unconstitutional. This authority was implied by the language of the Constitution, but it was not specifically stated, and the dominant Jeffersonians were hostile to the federal judiciary. In Marbury, Marshall fashioned a stunning victory for the court out of a case that had seemed to offer only a choice between two evils.

William Marbury had been appointed a justice of the peace for the District of Columbia by President Adams, but his commission had not been delivered to him by the time Adams left office, in March 1801. The new secretary of state, James Madison, refused to deliver the commission to Marbury, who then brought suit in the original jurisdiction of the Supreme Court for a writ of mandamus to compel Madison to deliver the commission. If Marshall granted the writ, Jefferson would order Madison not to obey it. If Marshall refused to issue the writ, he would admit the impotence of his court.

Marshall avoided both horns of this dilemma and found another issue on which to decide the case. He held that the statute purporting to grant the Supreme Court authority to issue writs of mandamus in its original jurisdiction, under which Marbury had brought the suit, had extended the court's original jurisdiction beyond that provided for in the Constitution. The heart of his opinion, and its enduring contribution, was a logical demonstration that the court was obliged to refuse enforcement of any statute that it found to be contrary to the Constitution.

Having placed the court in a strong position, Marshall had as his next purpose the guarantee of broad authority for Congress. Here his greatest opinion was McCulloch v. Maryland (1819), in which he ruled that Congress enjoyed not only the powers that were specifically granted by the Constitution but also those implied powers necessary or helpful in carrying out its constitutional purposes. One of the most important of the specifically granted powers, to regulate commerce, was given a broad interpretation in Gibbons v. Ogden (1824).

Part of Marshall's strategy to promote a strong national government was to win the support of the propertied interests by giving them federal protection. For example, in a series of decisions, such as Dartmouth College v. Woodward (1819), he extended the protection of the contract clause—Article I, Section 10, whereby states were forbidden to pass any "Law impairing the Obligation of Contracts"—to a corporate franchise, which was clearly beyond the intentions of the framers.

Marshall's successor was Roger B. Taney (chief justice, 1836–1864), a Democrat. Eastern mercantile and financial interests feared that Taney was a radical democrat, but Taney proved no less determined than Marshall to preserve the prerogatives of judicial review. During his first 20 years on the court, Taney, owing to his attachment to the economic interests of the South and West, appeared to be an economic liberal. This same attachment, however, resulted in the fateful decision in Dred Scott v. Sandford (1857), by which his court, under the delusion that it could solve the slavery question, denied both the power of Congress to control slavery in the territories and the right of blacks to be citizens. This decision tarnished Taney's reputation and seriously compromised the court, so that it was in no position to challenge the constitutionally questionable actions that President Lincoln took in reacting to the secession crisis. When Taney held Lincoln's suspension of the writ of habeas corpus unconstitutional in Ex Parte Merryman (1861), Lincoln ignored the ruling. Another confrontation was narrowly averted when the court by a vote of 5 to 4 upheld Lincoln's sea blockade of the Confederacy in the Prize Cases (1863).

From the Civil War to the New Deal. The political system that emerged from the Civil War was one of congressional supremacy. Lincoln was dead, and Andrew Johnson, his unfortunate successor, was impeached and escaped conviction by a single vote. The Supreme Court, still bearing the burden of the Dred Scott decision, was in disrepute. Congress showed its low opinion of the court by changing its size three times in seven years for political reasons. When the court appeared likely to declare some Reconstruction legislation unconstitutional in 1868, Congress simply withdrew the court's jurisdiction to decide the case, and the court acquiesced in Ex Parte McCardle (1869).

The post–Civil War Congress, lacking members from the secessionist states and dominated by northern Republican abolitionists, turned to the task of bringing the liberated slaves into the community of free people. With this object Congress secured the ratification of three amendments—the 13th (1865), 14th (1868), and 15th (1870)—and enacted a series of civil rights laws dating from 1866 to 1875. But as part of the settlement in their favor of the disputed Hayes-Tilden election of 1876, the congressional Republicans largely abandoned their concern over the freedmen's and -women's fate. What permanent effect these amendments and the civil rights legislation were to have was left to the Supreme Court.

The post–Civil War court had been chastened by its experiences but by no means reconstructed. Its members at first could not conceive that the 14th Amendment had fundamentally reordered the relations between the nation and the states. That amendment imposed three basic new obligations on the states: they were forbidden to make or enforce any laws abridging the privileges or immunities of citizens of the United States; depriving any person of life, liberty, or property without due process of law; or denying any person within their jurisdiction the equal protection of the laws.

When the court was first asked to enforce these new standards, in the Slaughterhouse Cases (1873), and to declare unconstitutional a state law setting up a slaughtering monopoly in New Orleans, it replied that the 14th Amendment had given no such power. But the pressures for judicial protection of property rights were very great. The postwar period was one of rapid industrial expansion, effected by raw methods. Resentment against the monopolists and "robber barons," particularly in the agrarian states, had led to the adoption of the regulatory Granger legislation. The Supreme Court was pressed to take sides, and following its ruling in Munn v. Illinois (1877), it concluded that the due process clause was a directive to the courts to review all legislation regulating the use of property to see whether it accorded with judicial concepts of economic freedom. Thus the doctrine of "substantive due process" was born, which was to be the major theme of judicial review up to the New Deal.

During this period the chief justices—Salmon P. Chase (served 1864–1873), Morrison R. Waite (1874–1888), and Melville W. Fuller (1888–1910)—fell far short of the stature of Marshall and Taney and failed to mold the court in their own image. With no strong leadership, the court for the first time found its intellectual quality among its associate justices, individuals such as Samuel F. Miller, Stephen J. Field, Joseph P. Bradley, and the first John M. Harlan.

By the dawn of the 20th century, the conservative, laissez-faire image of the court was firmly established. Its antagonism toward government interference with free enterprise was shown by decisions invalidating a New York ten-hour law for bakers, holding unconstitutional the federal Child Labor Act, and voiding the District of Columbia minimum wage law for women. While the court did accept the arguments justifying much legislative intervention, such as regulation of work hours for women, its predominantly conservative character made it a principal target of criticism for the Progressive movement.

Chief Justice Fuller was succeeded in 1910 by Edward D. White of Louisiana. He was followed by former president William Howard Taft (1921–1930). The most influential and distinguished member of the court during these years, however, was Associate Justice Oliver Wendell Holmes, Jr. Appointed by Pres. Theodore Roosevelt in 1902 from the Massachusetts supreme court, Holmes steadily grew in stature and reputation until he resigned in 1932, aged 91.

The public knew Holmes as the great dissenter, and he was generally regarded as a liberal because his dissents were often protests against the denial of civil liberties or against the judicial invalidation of progressive legislation. But some of his protests were less an expression of political liberalism than of a philosophy of limited judicial review.

Holmes's position was gradually strengthened in the country and on the court by events such as the appointment to the court in 1910 of the reform governor of New York, Charles Evans Hughes, and the election of Woodrow Wilson as president in 1912. Hughes left the court in 1916 to run for president, but that same year Wilson named to the court an ardent Progressive, Louis D. Brandeis, who was confirmed by the Senate despite the opposition of the organized bar and big business.

The phrase "Holmes and Brandeis dissenting" quickly became a part of American folklore as these two justices, though proceeding from different premises, joined in case after case to protest the court's policies. In 1925 they were joined by the liberal Harlan F. Stone, who had been U.S. attorney general.

Hughes returned to the court in 1930 as chief justice. A much more flexible man than Taft, he had the responsibility of guiding the court in its review of the constitutional aspects of the new and experimental legislation enacted by Franklin Roosevelt's New Deal to combat the Great Depression. On the Hughes court Brandeis and Stone were joined by Benjamin N. Cardozo, who was a sensitive and highly literate chief judge of the New York state court of appeals when he was appointed by President Hoover in 1932 to fill the Holmes vacancy. These three justices were generally favorable to the New Deal, but they were opposed by four conservatives—Willis Van Devanter, James C. McReynolds, George Sutherland, and Pierce Butler. The balance of power on the court thus rested with Hughes and the ninth member, Owen J. Roberts.

The court at first seemed willing to adapt itself to the new legislative trends of the Depression era. In 1935 and 1936, however, the court invalidated a series of important federal and state laws, usually by a vote of 5 to 4 or 6 to 3, depending on whether Roberts alone, or Roberts and Hughes, voted with the conservative bloc.

After his reelection in 1936, President Roosevelt, who had not had a single opportunity to appoint a justice during his first term, sought to eliminate the judicial barrier to reform. He proposed increasing the court to 15 justices, but the court-packing plan was defeated in Congress. In several key cases in the spring of 1937, however, Roberts shifted to the liberal side, giving the administration some 5 to 4 victories. Van Devanter then retired, and Roosevelt had his opportunity to begin remaking the court.

From the New Deal through the 1960s. Between 1937 and 1943 Roosevelt appointed eight members to the court, one position being filled twice, and elevated Stone to the chief justiceship as successor to Hughes in 1941. All these appointees were liberals on economic issues, and there ceased to be any danger of the court's invalidating regulatory legislation affecting property.

The characteristic problem of the Roosevelt court was civil liberty. The justices quickly found themselves more divided than ever, but now over the nature of their judicial responsibility for the protection of libertarian values. Justices Hugo Black, William O. Douglas, Frank Murphy, and Wiley Rutledge were a cohesive group firmly committed to the use of judicial power to protect civil liberties from legislative or administrative infringement. Justice Felix Frankfurter, the brilliant and influential professor from Harvard Law School, argued contrariwise that the Holmes tradition called for judicial restraint.

The libertarian character of the Roosevelt court was substantially altered by President Truman's four appointments. Chief Justice Fred Vinson succeeded Stone in 1946. Both Rutledge and Murphy died in 1949, leaving only Black and Douglas in the court's activist bloc. The most difficult problems of the Vinson court were generated by the Cold War. The court upheld the convictions under the Smith Act of the leaders of the American Communist party in Dennis v. United States (1951), and it refrained from interfering with the hunt for Communists that was conducted by Sen. Joseph McCarthy and the House Committee on Un-American Activities.

On Vinson's death in 1953, President Eisenhower named Earl Warren, three-term governor of California, as chief justice. In his first term the court decided Brown v. Board of Education (1954), unanimously declaring racial segregation in the public schools unconstitutional and overturning the rule of "separate but equal" facilities, which had justified segregation for almost 60 years.

This decision was an appropriate beginning for the Warren court, which during its 16 years was to be the most controversial in American history. Racial segregation was almost the only policy issue on which the court was unanimous. During its early years the Warren court was rather evenly balanced between the activists and the justices who were more cautious in taking new positions. Black and Douglas were joined in the activist camp by Warren and William J. Brennan, Jr., while John M. Harlan, a grandson of the earlier Harlan, was a powerful recruit to the Frankfurter wing. Following Frankfurter's retirement in 1962 and the appointment of four justices by Presidents Kennedy and Johnson, the balance swung substantially toward the activist position. One of Johnson's nominees was Thurgood Marshall, the court's first black member.

An initial attack on the Warren court culminated in 1958, when congressional conservatives proposed a series of measures to curb the court or reverse some of its decisions. The proposals were narrowly defeated. In addition to the Brown decision, congressional opposition had been aroused by rulings that supported limiting state powers and restricting the operation of both federal and state anti-Communist programs.

During the 1960s the conservative assault on the court became more intense. The first target was a series of "one man, one vote" decisions, in which the court held that the House of Representatives and both houses of state legislatures must be elected from districts roughly equal in population. Conservatives also criticized decisions holding that prayer and Bible reading in the public schools amounted to an unconstitutional establishment of religion, and they attacked numerous decisions imposing stricter standards for state criminal prosecutions. Again opposition in Congress to the court was largely unsuccessful. Efforts to secure constitutional amendments reversing the prayer and reapportionment decisions failed.

In 1968, a few months before the presidential election, Chief Justice Warren notified President Johnson of his desire to retire. To fill this anticipated vacancy, Johnson sent to the Senate the nomination of Abe Fortas, a member of the court since 1965. For a variety of reasons, such as the reluctance of Republicans to see this important post filled by Johnson so near the end of his term, opposition to Fortas's liberal views, and the alleged impropriety of Fortas's close relations with the White House while on the bench, the nomination was subjected to a filibuster in the Senate and had to be withdrawn. Justice Fortas's troubles were not over, however. His acceptance of an annual fee for services to a foundation run by a financier who was under federal indictment forced him to resign in 1969, the first justice in history to leave the court under allegations of unethical conduct.

From the 1970s to the Present Earl Warren continued to serve until June 1969, at President Nixon's request. The president then named as chief justice a judge of the federal court of appeals for the District of Columbia, Warren E. Burger. Burger, though personally active in criminal law reform, had been outspoken on and off the bench in opposing the criminal prosecution decisions of the Warren court. Having announced that the appointment to the Fortas vacancy would go to a southern judge, Nixon saw his first two nominees—Clement F. Haynsworth, Jr., of South Carolina, and G. Harrold Carswell, of Florida—rejected by the Senate. Angrily charging the Senate with prejudice against the South, Nixon then named a Minnesota federal appeals court judge, Harry A. Blackmun, who was confirmed unanimously.

The court's two strongest members, Hugo Black and John M. Harlan, both retired during the summer of 1971. Nixon's effort to appoint two relatively unknown persons to these posts was frustrated by unfavorable reports from the American Bar Association committee on the federal judiciary, and he then named two able conservatives, Lewis F. Powell, Jr., and William H. Rehnquist. Justice William O. Douglas suffered a stroke in 1975 and subsequently retired, having served longer than any other justice in the court's history. President Ford appointed in his place John Paul Stevens, a federal appellate judge of moderate views.

The court under Chief Justice Burger was notably more conservative than the Warren court, particularly in dealing with the rights of criminal defendants and in limiting access to federal courts for the enforcement of civil rights. But there was no wholesale reversal of precedents, and the court continued its activist stance. Between 1969 and 1976 the court nullified more acts of Congress on 1st Amendment and equal protection grounds than all of its predecessors combined. The court's decision in United States v. Nixon (1974), rejecting the president's claim of executive privilege and requiring him to yield White House tapes implicating him in the Watergate cover-up, was directly responsible for Nixon's resignation.

It was not until Ronald Reagan assumed the presidency in 1981 that the Supreme Court embarked on a more decisive turn to the Right. Reagan arrived in office harboring an ambitious social agenda, and his administration—backed by vocal social conservatives—openly targeted a number of the Supreme Court's most controversial decisions from the past two decades, including those outlawing school prayer, legitimating busing, expanding suspects' rights, and supporting affirmative action programs. The selection of more conservative Supreme Court justices became a central element in the Reagan administration's overall political strategy.

Potter Stewart's resignation during Reagan's first year in office allowed the president to appoint Sandra Day O'Connor, the first female Supreme Court justice in U.S. history. O'Connor was a former Arizona state legislator then serving as a state judge; she thus brought to the court a less hostile perspective on states' rights issues. When Chief Justice Warren Burger retired from the court in 1986, Reagan replaced him with the most conservative associate justice then sitting on the court, William Rehnquist. Rehnquist's old seat subsequently went to Judge Antonin Scalia, an ardent conservative sitting on the federal appeals court in Washington, D.C.

Finally, when the moderate "swing justice" Lewis Powell resigned from the court in 1987, Reagan tried to replace him with Scalia's more controversial colleague from the D.C. circuit, Judge Robert H. Bork. Bork's nomination carried with it considerable baggage, however. As solicitor general during the height of the Watergate scandal, Bork had executed President Nixon's orders to fire the Watergate special prosecutor as part of the now infamous "Saturday night massacre." Bork also sported a troublesome paper trail; as a law professor at Yale he had authored a number of articles heaping criticisms on many of the Warren court's precedents, as well as on the court's controversial 1973 opinion in Roe v. Wade. Subjected to especially aggressive questioning from senators during his confirmation hearings, Bork failed to answer his critics persuasively, and public opinion quickly turned against him. Ultimately the Senate defeated Bork's nomination by a 58-to-42 vote. After being forced to withdraw his second nominee, appeals judge Douglas Ginsburg, amid charges of the candidate's marijuana use, Reagan finally turned to the longtime federal appeals judge, Anthony M. Kennedy, to fill Powell's still vacant Supreme Court seat.

Even without Bork, Reagan's conservative supporters generally got what they had hoped for: together, Reagan's appointees helped move the court in a decidedly more conservative direction. In a number of policy areas, Reagan's four appointees generally acted as a united conservative bloc. Indeed, in the year after Powell's retirement, the bloc enjoyed some immediate success. The court tightened the rules of affirmative action in Richmond v. J. A. Croson Company (1989), applying strict scrutiny review for the first time ever to a benign racial classification. In Webster v. Reproductive Health Services (1989), the court moved further away from Roe's trimester framework, with Kennedy and Scalia joining White and Rehnquist in their condemnation of the court's abortion jurisprudence.

The successive retirements of Justices Brennan and Marshall during George Bush's term as president spelled the death of various liberal doctrines crafted during the heyday of the Warren court. Although Brennan's successor, appeals judge David Souter, was a moderate former state judge from New Hampshire, Marshall's replacement was the highly conservative D.C. circuit judge Clarence Thomas. An African American who had been a former official in the Reagan administration, Thomas strongly opposed affirmative action and thus was considered an enemy (rather than a hero) by most civil rights groups. After narrowly surviving a grueling confirmation process—which even included allegations of sexual harassment lodged by Thomas's former aide, Anita Hill—the 43-year-old Thomas arrived on the court determined to contribute to a conservative legacy. Not surprisingly, Thomas often joined with the four Reagan appointees to bring significant change to the constitutional landscape.

Separation-of-powers cases have generally defied categorization on this more traditional liberal-conservative continuum. When the court struck down the use of legislative vetoes in INS v. Chadha (1983), it seemed to signal that it would take a more formalist approach to reading constitutional provisions. Yet the court upheld the constitutionally dubious special prosecutor law against constitutional attack in Morrison v. Olsen (1989). Then in Clinton v. Jones (1997), the court unanimously refused to grant temporary immunity to a sitting president to fend off civil lawsuits stemming from nonofficial presidential actions.

By contrast, there was a dramatic and visible shift by the court in the 1990s toward curtailing the reach of federal power in states' rights cases. In New York v. United States (1992), the court invalidated a provision of federal law requiring states to assume liability for radioactive wastes. For the first time in nearly 60 years, the court struck down federal legislation on commerce clause grounds in United States v. Lopez (1995). And in Printz v. United States (1997), the court invalidated a provision of the Brady gun-control bill that required local sheriffs to enforce federal law. In Adarand Constructors v. Peña the court invalidated federal affirmative action programs that were not narrowly tailored to meet a compelling state interest.

Despite this overall trend toward more conservative outcomes, the court has occasionally straddled a more moderate line, frustrating both sides of the political spectrum. Aided by Anthony Kennedy's defection, the court rescued Roe from near total extinction in Planned Parenthood v. Casey (1992). The court also refused to loosen its scrutiny of gender discrimination in United States v. Virginia (1996). President Clinton's appointment of two moderates in the early 1990s, federal appeals judges Ruth Bader Ginsburg and Stephen G. Breyer, all but guaranteed that the court's sudden movement to the Right would not soon be followed by an equal and opposite reaction.

The moderate makeup of the court came into question in July 2005, when Justice Sandra Day O'Connor unexpectedly announced her resignation. Since O'Connor had frequently been the swing vote on a court divided between more liberal and conservative factions, eyes immediately focused on whom Pres. George W. Bush would appoint to the court vacancy. Bush, who had repeatedly promised to nominate conservatives to the nation's highest bench, nominated John G. Roberts, Jr., a judge on the U.S. court of appeals for the D.C. circuit, as O'Connor's successor. Just days before confirmation hearings on Roberts's appointment were to begin in the U.S. Senate, Chief Justice William H. Rehnquist died. President Bush then selected Roberts as his nominee for chief justice. Following confirmation hearings during which Roberts demonstrated a superior intellect and stated that he was not "an ideologue," but refused to comment on issues or cases that he thought might come before the Supreme Court, the Senate approved Roberts's nomination by a vote of 78-22. Roberts was sworn in as the nation's 17th chief justice on Sept. 29, 2005.

Attention then turned to whom President Bush would name for the still vacant O'Connor seat. The president chose White House Counsel Harriet Miers for the position. Her nomination stirred debate on both the Left and the Right. Some Republicans charged that she was not conservative enough, while Democrats noted her lack of judicial experience. In turn, the Texas lawyer and longtime Bush associate withdrew herself from consideration. The president then selected Samuel A. Alito, Jr., a judge on the U.S. court of appeals for the third circuit, for the post. After intense confirmation hearings in the U.S. Senate, Alito, who was considered a staunch conservative, was confirmed by a vote of 58-42. He was sworn in as the nation's 110th Supreme Court justice on Jan. 31, 2006. With two new conservative judges in place, it appeared likely that the court would again move toward the Right.

The Roberts court completed its first full term in June 2007. Legal analysts determined that the court had become more conservative, with Justice Kennedy succeeding OConnor as the "swing" justice. He issued the deciding vote in 19 cases that were equally divided between the conservative wing—Roberts, Scalia, Thomas, and Alito—and the liberal side—Stevens, Souter, Ginsburg, and Breyer. In two 5-4 decisions the court ruled that two schools could not use race as factor in school placement programs intended to promote diversity and upheld a 2003 federal law prohibiting late-term abortions. The latter decision marked the first time the court had supported a ban against a type of abortion.