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.
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 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