The Supreme Court

1
The Supreme Court
of the United States
2
Inside The Supreme Court Building
3
Part1 Power/jurisdiction of the Court
4

• Article III of the Constitution establishes the
  Supreme Court as the this co-equal branch of the
  US government.
• In its early history the Court was not so
  prestigious. John Jay retired from the Supreme
  Court to run for governor of New York. He later
  declined Adams appointment as Chief Justice
• The framers of the Constitution spent only two
  days drafting and debating Article III
• When Pierre LEnfant designed Washington DC he
  forgot to plan for the Court building
• The Supreme Court didnt have a permanent home
  until 1935

5
The Scope of Judicial Power

• Judicial power is passive and reactive
• Hamilton called it the least dangerous branch.
• Power only to decide judicial disputes
• A Dual court system
• Two court systems, state and federal, exist and
  operate at the same time in the same geographic
  areas

• Cases must be ripe
• Cases cannot be moot
• Cases cannot be political

Judicial Federalism State Federal Courts
6

• Chief Justice John Marshalls 35 year tenure
  shaped the Court into what it is today, a strong
  check on power, and protector of liberty.
• Marshalls pro-Federalists decisions strengthened
  both the Court and the national government
• Marbury v. Madison established the precedent of
  judicial review

7
Jurisdiction

• Original jurisdiction1) cases involving
  representatives of foreign governments
• 2) certain cases between different states
• Appellate jurisdiction1) cases from the 12 US
  Courts of Appeals and US Court of Appeals
  for the Federal Circuit 2) US Court of Military
  Appeals3) cases from district courts regarding
  acts of Congress4) Appeals from state high
  courts on issues of constitutional law.
  Example?

8
Part 2 The Justices
9
The Justices

• The court currently has 8 justices and 1 Chief
  Justice
• The number of justices is determined by Congress.
• Justices are appointed for life or good behavior.
  They can be impeached for treason, bribery, or
  other high crimes and misdemeanors.
• No justice has ever been removed from the bench
  due to an impeachment trial.

10
The Justices

• There are no Constitutional requirements to serve
  as a court justice
• However, most have been attorneys, and judges.
• In the 20th Century most justices have been
  appointed from the ranks of the lower federal
  courts.
• As a group, they represent an elite segment of
  society.
• The only minorities (Thrugood Marshall, Clarence
  Thomas) and the only women (Sandra Day OConner,
  Ruth Bader Ginsberg) have been appointed in the
  last 50 years.

11
Appointing Justices

• Justices are nominated by the president and must
  be approved by the Senate.
• The Senate Judiciary Committee holds hearings for
  the nominee
• Once the committee completes its hearings it
  issues an report to the full Senate with its
  recommendations.
• The full Senate then votes (by simple majority)
  to confirm or reject the nominee.
• Senatorial courtesy does not apply to Supreme
  Court nominees

12
Appointing Justices

• Politics has become increasingly critical in the
  presidents selection
• The president will turn to staff, the attorney
  general and key members of congress, and a few
  interest groups to select nominees.
• The WhiteHouse will vet potential nominees, that
  is to conduct a thorough background check,
  including reading everything the nominee has
  written, and every court decision/opinion with
  which the nominee is involved
• The White House will often leak the names of
  nominees to get public response before a formal
  announcement.

13
Appointing Justices

• The American Bar Associations (ABA) Comm. on the
  Federal Judiciary ranks federal court nominees
  professional qualifications
• Rankings well qualified, qualified, not
  qualified.
• Presidents will consult the ABA but are not
  bound by its opinions
• Other interest groups may speak out against
  nominees whose opinions are threatening to their
  views. Example?
• Members of the Supreme Court often offer the
  president suggestions for the bench. OConner was
  recommended by Rehnquist

14
The Role of Politics in Selecting Judges

• There are no Constitutional requirements
• The process of judicial selection is a highly
  partisan and political process
• Because of the power wielded by the Supreme
  Court, presidents take a personal interest in
  selecting appointees

Judge Samuel A. Alito prior to the start of his
second day of questioning before the Senate
Judiciary Committee
Judicial Tenure

• The Constitution stipulates that federal judges
  shall hold their Offices during good Behavior
• Judges cannot be removed for any reason by a
  President
• Congress cannot impeach judges because they dont
  like their decisions

15
The Politics of Selecting Judges
Previous Backgrounds Number Job
Experience Most Recent Example 33 Federal
Judges Sonia Sotomayor (2009) 22 Practicing
Lawyers Lewis F. Powell (1971) 18 State Court
Judges Sandra Day OConnor (1981) 15
Other Elena Kagan, Solicitor General (2010)
8 Cabinet Members Arthur Goldberg, Labor Sec.
(1962) 7 Senators Harold H. Burton, R-Oh
(1945) 6 Attorney Generals Tom Clark
(1949) 3 Governors Earl Warren, D-Ca
(1953) 1 President (POTUS) William Howard
Taft (1921)
16

• The Politics of Appointing Federal Judges
• Political Litmus Tests
• Senate Advice and Consent
• The Role of Party, Race, Age, and Gender
• The Role of Ideology and Judicial Experience
• The Role of Judicial Philosophy and Law Degrees

Activist
Breyer
Scalia
Thomas
Conservative
Liberal
Ginsburg
Alito
Roberts
Kennedy
Sotomayor
Self-Restraint
17
The Process of Judicial Selection

• Submission of an appointees name to the Senate
  Judiciary Committee
• Hearings are held by the Senate Judiciary
  Committee
• Nomination goes to the full Senate, where there
  is debate and, if no filibuster, a vote

Senate Confirmation

• Filibustering Court Nominees
• Constitution requires only a majority vote of the
  senate to advise and consent to a presidential
  nominee
• 60 votes required to end a filibuster

18

• The Politics of Appointing Federal Judges
• Do Judges Make Law?
• Adherence to Precedent - Stare Decisis
• The rule of precedent, whereby a rule or law
  contained in a judicial decision is commonly
  viewed as binding on judges whenever the same
  question is presented
• Judicial Longevity and Presidential Tenure
• Reform of the Selection Process
• Changing the Numbers
• Changing the Jurisdiction

19
Party Affiliation of District Judges and Courts
of Appeal Judges Appointed by Presidents
President Party
Appointees from Same Party Roosevelt Democrat 9
7 Truman Democrat 92 Eisenhower Republican 9
5 Kennedy Democrat 92 Johnson Democrat 96 Nixo
n Republican 93 Ford Republican 81 Carter
Democrat 90 Reagan Republican 94 G.H.W.
Bush Republican 89 Clinton Democrat 88 G.W.
Bush Republican 93
First woman appointed to the Supreme Court, by
Ronald Reagan
20
Diversity in the Judiciary
One of the most significant changes affecting the
judiciary in recent decades has been the
expansion of opportunity for women and members of
minority groups to serve as judges
21
Female and Minority Appointments to Federal
Judgeships
22
The Supreme Court Justices
Back Row Sonia Sotomayor , Stephen Breyer,
Samuel A. Alito, Elena Kagan, Front Row Clarence
Thomas, Antonin Scalia, John G. Roberts, Jr.,
Anthony Kennedy, Ruth Bader Ginsburg
23
Antonin Scalia

• Associate Justice
• Appointed by Ronald Reagan.
• Took his seat on the High Court on 9/26/86.
  (longest current serving)
• Graduate of Georgetown and Harvard Law.
• Born 3/11/36.
• RIGHT leaning.

24
Anthony Kennedy

• Associate Justice
• Appointed by Ronald Reagan.
• Took his seat on the High Court on 2/18/88.
• Graduated from Stanford and Harvard Law.
• Born 7/23/36.
• Moderate.

25
Clarence Thomas

• Associate Justice
• Appointed by George HW Bush.
• Took his seat on the High Court on 10/23/91.
• Graduate of Holy Cross and Yale Law
• Born 6/23/48.
• RIGHT leaning.

26
Ruth Bader Ginsburg

• Associate Justice
• Appointed by William Clinton.
• Took her seat on the High Court on 8/10/93.
• Graduate of Cornell and Columbia Law.
• Born 3/15/33.
• LEFT leaning.

27
Stephen Breyer

• Associate Justice.
• Appointed by William Clinton.
• Took his seat on the High Court on 8/3/94
• Graduate of Stanford and Harvard Law.
• Born 8/15/38.
• LEFT leaning.

28
John Roberts

• Chief Justice
• Appointed by George W. Bush.
• Took his seat on High Court on 9/25/05.
• Graduate of Harvard and Harvard Law
• Born 1/27/55
• Right leaning.

29
Samuel Alito

• Associate Justice.
• Appointed By George W. Bush.
• Took his seat on the High Court on 1/31/06.
• Graduate of Princeton and Yale Law.
• Born 4/1/50.
• Right leaning.

30
Sona Sotomayor

• Associate Justice.
• Appointed by Barack Obama.
• Took her seat on the High Court on 8/8/2009.
• Graduate of Princeton and Yale Law.
• Born 6/25/54
• Left leaning.

31
Elena Kagan

• Associate Justice
• Appointed by Barack Obama.
• Took her seat on the High Court on 8/7/10.
• Graduate of Princeton, Oxford, and Harvard Law
  School
• Born 9/17/39.
• Left leaning.

32
Duties

• Duties of the court have evolved over the
  centuries. The primary task is to hear and rule
  on cases.
• Three primary decisions made by justices1)
  which cases to hear2) ruling on cases before the
  court3) providing and explanation for ruling
  (opinion)
• Ride the circuit
• The Chief Justice has the added responsibility of
  presiding over the conference, and serve as
  administrator of the federal court system
• Since 1882 clerks have assisted the justices

33
Section 3 The Court at work
34
Court Basics

• During a term, the Court sits for two weeks per
  month
• During these sittings, the Court hears oral
  arguments on cases.
• Arguments are heard on Mondays-Wednesdays
• Thursday and Friday are reserved for conference.
  These are meetings held in private chambers in
  which justices to decide cases
• After two weeks of hearing cases, Court recesses.
  During the recess justices write opinions and
  discuss what cases they will consider in the
  future
• The Court hears only 5 of the cases appealed

35
How Cases Reach the Court

• The main road to the Supreme Court is by a writ
  of certiorari
• A cert is an order from the Supreme Court to a
  lower court to send records on a case for review.
• Certs are granted when attorneys for the case
  petition the Court on the grounds that the case
  was mishandled by the lower court or the case
  involves an important Constitutional question.

36
How Cases Reach the Court

• 90 of all petitions for Certiorari are rejected
  Why?
• The court may feel that the case has no real
  Constitutional merit
• They may feel that another case pending will
  address the issue more effectively
• They may not want to deal with a hot potato
• If the Court refuses to take the case, the lower
  court decisions stands. Stare decisis let the
  decision stand.

37
How Cases are Selected

• Cases with merit are placed on a discuss list by
  justices and their clerks, cases not making the
  list a remanded to the lower courts
• Justices and their clerks review petitions for
  certiorari while in recess.
• Friday afternoon justices discuss cases on the
  list, if 4 of the 9 decide to take the case a
  writ of certiorari will be issued (k.a. the Rule
  of Four)
• Lawyers in the case will be notified and send
  briefs to the Court

38
How Cases are Selected

• In some cases the justices will decide a case
  without hearing oral arguments.
• During the Friday discussion justices can accept
  a case and issue a per curiam opinion
• A per curiam (by the court) opinion is a decision
  made by the court without hearing arguments or
  receiving new information.
• Even though a per curiam is unsigned all courts
  are bound by the decision.
• Usually involves a case where there was a clear
  procedural error by the lower court.

39
Steps in Deciding A CaseStep 1 Submitting
Briefs

• Once a case is accepted, lawyers must submit
  briefs to the Court. A brief is a written
  statement that outlines the legal arguments,
  facts of the case, precedents that support their
  case
• Amicus curiae briefs may be submitted by parties
  not directly involved in the case but have an
  interest in its outcome. Example?
• Amicus briefs are filed by interest groups,
  government agencies, or private citizens
• Amicus briefs are ways of lobbying or influencing
  the Court

40
Steps in Deciding A CaseStep 2 Oral Arguments

• After briefs are received the case is placed on
  the docket
• Lawyer for each side are given 30 minutes to
  argue their case. During this time justices are
  free to interrupt with questions (time is not
  credited)
• A light on the podium notifies the attorney when
  times up.
• Lawyers follow Court protocol, failure to do so
  often means you cant come back.

41
Steps in Deciding A CaseStep 3 Conference

• Friday Conference. Justices debate cases for 6 to
  8 hours. No notes of the discussions are kept.
• The Chief Justice serves as moderator.
• Justices discuss their opinions on the case in
  order of seniority.
• Each case is given about 30 minutes. The
  discussion on what cases to consider in the
  future is often less than 5 minutes.
• Once discussion is closed, justices vote. 6
  justices are required for a quorum. If a tie
  occurs the lower court decision stands

42
Steps in Deciding A CaseStep 4 The Opinion

• In major cases the Court issues at least one
  opinion. The opinion states the facts of the
  case, the Constitutional questions, announces the
  Courts decisions and offers some explanation.
• The opinion serves as the precedent for lower
  courts to follow when deciding similar cases
• It also serves as a way for the Court to
  communicate to Congress, the president, and state
  governments

43
Steps in Deciding A CaseStep 4 The Opinion

• Four types of opinions
• 1) Unanimous- all justices vote the same way
• 2) Majority
• 3) Concurring- when one or more justices have
  other reasons for decision other than those
  mentioned in the majority
• 4) Dissenting- opinion of justices on the
  losing side. May serve as the precedent for
  cases in the future

44

• The Supreme Court How it Operates
• Opinions
• Majority
• Dissenting
• Concurring
• Circulating Drafts
• Releasing Opinions to the Public
• After the Court Decides
• Sometimes remands the case
• Uncertain effect on individuals who are not
  immediate parties to the suit
• Decisions are sometimes ignored
• Difficult to implement decisions requiring the
  cooperation of large numbers of officials

45
Caseload of Federal Courts
Year District Court Caseloads Judges
Circuit Court Caseload Judges 1950 91,005
224 2,830
65 1960 87,421 245 3,899
68 1970 125,423 401
11,662 97 1980
196,757 516 23,200
132 1990 264,409 575
40,898 156 2000 386,200
940 84,800 430 2010
642,500 1,510 171,600
840 2020 1,109,000 2,530
325,100 1,580
SOURCE Committee on Long Range Planning,
Judicial Conference of the United States,
Proposed Long Range Plan for the Federal Courts
(Judicial Conference of the United States, 1995),
pp. 14-15
46
The Supreme Courts Increasing Caseload
47
Caseload in Federal Court
48
How the Court Shapes Policy

• Three tools
• 1) Judicial review- Courts power to examine the
  laws and actions of the national, state,
  and local governments
• 2) Interpretation of law- Courts authority to
  refine and clarify the language of the law
• 3) Overturning previous decisions- Legal system
  based on the principle of stare decisis. To
  lend predictability to the law precedents
  serve as the guide for subsequent decisions

49
Limits on Court Power

• Types of issues- The Court has little influence
  in the area of foreign policy.
• Rules for accepting a case1) Court will only
  consider cases where a decision will make a
  difference. It will not give advisory
  opinions (ruling on a law that has not been
  challenged)2) Plaintiffs must have suffered some
  real harm3) Case must have a substantial
  federal question4) Courts typically refuse
  to hear cases of a political nature

50
Limits on Court Power

• Limited control on the agenda- Court can only
  deal with cases within its jurisdiction and when
  plaintiffs bring a case. As federal laws change
  so does the Courts authority.
• Lack of enforcement power- Court has no mechanism
  by which to enforce its decisions. Most
  decisions are obeyed, others
• Checks and balances- The president appoints
  justices, Senate confirms nominees. Congress has
  the authority to create all federal courts below
  the Supreme Court as well as determine the number
  of justices

51
How the Court Shapes Policy

• Three tools
• 1) Judicial review- Courts power to examine the
  laws and actions of the national, state,
  and local governments
• 2) Interpretation of law- Courts authority to
  refine and clarify the language of the law
• 3) Overturning previous decisions- Legal system
  based on the principle of stare decisis. To
  lend predictability to the law precedents
  serve as the guide for subsequent decisions