THE SUPREME COURT

The Supreme Court of the United States is the highest court in the nation, with authority over all other U.S. courts. Established by Article III of the Constitution of the United States, the Court is made up of eight associated justices and one chief justice - all nominated to life terms by the president and confirmed by the Senate. Once in office, they can only be removed by resignation, impeachment or death.  Each justice makes $173,600 a year, the chief justice $181,400, and they receive that same salary into retirement after fifteen years of service.  

Of the nine (9) justices currently on the Supreme Court, five (5) can be regarded as conservatives and four (4) can be regarded as liberals.  These should not be construed as fixed labels, however, as the whole conservative-liberal dichotomy is an oversimplification when it comes to the Supreme Court.  Lifetime appointment is intended to free the justices from political leaders, even those who nominated them.  Partisan politics is seen as inappropriate.  Direct contact with lobbyists is outlawed.  Public opinion is not supposed to sway decision making.  The Supreme Court ought to be "nonpolitical", but because Congress holds certain powers over the Court, justices may take Congress into consideration, and of course, their own political values. 

THE CONSERVATIVES:

Associate Justice Clarence Thomas, 52 years old, born near Savannah, Georgia, married with one child. Attended Conception Seminary, 1967-1968: Holy Cross College, B.A., Yale Law School, J.D., 1974. In 1970s, served as corporate attorney for Monsanto Co., Assistant Attorney General of Missouri, and Legislative assistant to Senator Danforth of Missouri. In 1980s, served as Assistant Secretary for Civil Rights and Chairman of U.S. Equal Employment Opportunity Commission. Former Appellate judge for District of Columbia Circuit, nominated by President Bush to Supreme Court in 1991. Active in public speaking. Enjoys auto racing.

Associate Justice Antonin Scalia, 64 years old, born in Trenton, NJ, married with nine children. Attended Georgetown University and University of Fribourg (Switzerland), B.A., 1957; Harvard, LL.B., 1960. Former Appellate Judge for the District of Columbia, nominated by President Reagan to Supreme Court in 1986. During 1970s, served as general counsel to President and Assistant Attorney General, U.S. Dept. of Justice. Also as Professor of law, University of Virginia, Georgetown, Chicago, and Stanford. Engaged in private practice of law, Cleveland, Ohio, 1961-67. Active in ABA affairs.

Associate Justice Sandra Day O'Connor, 70 years old, born in El Paso, Texas, married with three children. Attended Stanford University, B.A., 1950, LL.B., 1952. Former County Prosecutor, Civilian Quartermaster Attorney, private attorney, and Assistant Attorney General in Arizona during 1950s and 60s. Elected as Arizona State Senator from 1969 to 1975. Superior Court and Appellate judge in Arizona from 1975-1981. Nominated by President Reagan to Supreme Court in 1981. A millionaire and active in ABA affairs, women's issues, religious and nonprofit organizations. Sometimes a swing vote in liberal direction.

Associate Justice Anthony Kennedy, 64 years old, born in Sacramento, California, married with three children. Attended Stanford University, 1954-57; London School of Economics, 1957-58; Stanford University, B.A., 1958; Harvard Law School, LL.B., 1961. Professor of constitutional law, University of the Pacific, 1965 -1988. Former Ninth Circuit Appellate Judge nominated by President Reagan to Supreme Court in 1988. Engaged in private practice of tax law, Sacramento, 1967-75. Former member of California Army National Guard, Federal Judicial Center, and Harvard faculty, 1960-61. Active in ABA affairs. Sometimes a swing vote in liberal direction.

THE LIBERALS:

Associate Justice John Paul Stevens, 80 years old, born in Chicago, Illinois, twice married with four children. Attended University of Chicago, B.A., 1941; Northwestern Univ. J.D., 1947. Served in US Navy, 1942-1945. Clerked under Justice Rutledge in 1947. Private practice and Lecturer of antitrust law in Chicago during 1940s and 50s.  Served as Associate Counsel and member of legislative committees from late 1950s to 1970. Former Seventh Circuit Appellate judge, 1970-75, nominated to Supreme Court by President Ford in 1975. Active in ABA affairs, legal societies, and has written numerous articles and chapters in books. A millionaire who enjoys travel and sports.

Associate Justice Ruth Bader Ginsburg, 67 years old, born in Brooklyn, New York, married with two children. Attended Cornell University, B.A. 1954, Harvard Law School (1956-58), Columbia Law School, LL.B. (J.D.) 1959. Admitted to New York Bar in 1959 and District of Columbia Bar in 1975. American Civil Liberties Union: Women's Rights Project Founder (1972-80). Professor of Law, Rutgers Univ. 1963-72, and other faculty research or teaching positions from 1961-1990. Former Appellate judge for District of Columbia Circuit,  nominated by President Clinton to Supreme Court in 1993. A millionaire who has published numerous books and articles on civil procedure, sex-based discrimination, conflict of laws, constitutional law, and comparative law.

Associate Justice Stephen Breyer, 62 years old, born in San Francisco, California, married with three children. Attended Stanford University, B.A. 1959, Oxford University, B.A., 1961, Harvard Law School, LL.B., 1964. Clerked under Justice Goldberg in 1964. Harvard Professor of Law and Government, 1967-1980. Served as Special Assistant to the Assistant Attorney General (Antitrust), Department of Justice, 1965-1967; Assistant Special Prosecutor, Watergate Special Prosecution Force, 1973; and Chief Counsel to Senate Judiciary Committee up until 1980. Member, U.S. Sentencing Commission, 1985-1989. Former First Circuit Appellate judge nominated to Supreme Court by President Clinton in 1994. Has published numerous books and articles, mostly on economic regulation. Active in ABA affairs and legal societies. A millionaire who enjoys cooking and exercise.

Associate Justice David Souter, 61 years old, born in Melrose, Massachusetts, unmarried. Attended Harvard B.A. 1961, Oxford, 1963, Harvard Law School, LL.B. 1966, then Oxford again B.A.1989, M.A. 1989. Served as New Hampshire Superior and Supreme Court judge 1978-1990 and First Circuit Appellate judge 1990. Former private practice and Attorney General in New Hampshire, 1966-1978. Also served on New Hampshire Police Standards and Training Council and Governor's Commission on Crime and Delinquency. Nominated by President Bush in 1990. A millionaire active in ABA affairs, historical and genealogical societies.

Every year, the Supreme Court hears about 100 cases (in recent years, that number has dwindled down to about 90 cases per year).  This is only a small fraction of the many cases (about 7,000 a year) filed before it.  Therefore, the Court only addresses a small fraction or selective proportion of cases.  Sometimes, it refuses to get involved at all in controversy -- a practice known as judicial restraint, which is the legal tradition most judges are trained in and has the pragmatic purpose of avoiding attacks on the judiciary.  A good example is war; one almost never hears a judge or justice proclaim any opinion, for or against, the justness or constitutionality of a foreign conflict.  On the other hand, the opposite of judicial restraint is judicial activism -- a term which has many meanings, but generally refers to an issue so significant that the Supreme Court feels it has to assert its supremacy and change the way policy is being established by other institutions of government.  The Court realizes it can only do so much, but when it feels it has to deliver a power punch, it can and will exert power the likes of which are rarely seen, up to and including the immediate imprisonment of government officials.  Most smart people stay out of the way by voluntarily cooperating; at least that's what Presidents, lower courts, and the police do.  Legislators often just amend laws to get around Supreme Court interpretations. Analysts tend to focus on finding the trends and patterns in related issues of key rulings -- in some areas, the pattern may be expansionist, giving the police more power, for example, in searches and seizures; in other areas, the pattern may be restrictionist, as in handcuffing the police with continued Miranda warning requirements. From a civil liberties point of view, however, an expansionist pattern is whatever gives "underdogs" more rights and a restrictionist pattern erodes those rights.

Cases come before the Supreme Court from a variety of sources.  The main route (76% of all cases) is from a Federal Court of Appeals.  These are known as federal "circuit" courts, and there are twelve federal circuits in the United States.  The second most common route (14% of all cases) is from a State Court, usually a State Supreme Court, although the U.S. Supreme Court can delve down into any state level it wants to, if it thinks a significant Constitutional issue is involved.  The remaining cases come from specialized courts (6%) of military justice or special federal "district" courts (4%) that are concerned primarily with voting and election issues.  Other than having to hear mandatory appeals from the special federal "district" courts, the Supreme Court has complete discretion over its jurisdiction and has always treated its original jurisdiction (that stuff in the Constitution about trying disputes between the states and foreign diplomats) as discretionary.  Therefore, all requests to be heard by the Supreme Court must be in the form of petition for writ of certiorari (Latin, "to be informed of") which the Court uses to exercise its discretion in selecting cases it will review.  Certiorari is an extraordinary prerogative writ (all writs being essentially calls for action or remedy) in the public interest which can only be nullified if the issue is moot, or poses no real controversy.

Decisions are made by simple majority, except when a justice is ill or excuses themself from a case, usually for some conflict of interest.  Such self-disqualifications are called a recusal. The most common reasons for recusal are family stock holdings.  A tie vote results in no announcement and no written opinions. All justices are equal in power, the Chief Justice being mostly a symbolic position which presides over Senate impeachment hearings, and another justice serving as social secretary.  Each justice can employ four clerks each, and their law clerks usually serve for only one year. The Supreme Court is also served by over 300 other staff personnel. No television or cameras are allowed in the courtroom.  Release of audiotapes are delayed to avoid same-day newscasts. 

The Supreme Court is only active from around September to June every year, and tries to hear two cases a day.  This is known as the term of the Supreme Court, and is designated by the year it begins, the 2000 term beginning in October of that year.  Around September, the justices meet and begin disposing of petitions that have accumulated over the summer.  It takes a rule of four - four justices must agree the case is worth hearing - for a petition to be accepted.  They then announce which cases they will hear and the deadlines for when briefs have to be filed.  During the term, they hear cases for about two weeks, then take recesses for about two weeks.  Nearly a third of all major decisions are not announced until the end of the term, in May or June.  Attorneys appearing before them only have one half-hour to make their arguments, and are frequently interrupted by the justices.  For a lawyer, arguing before the Supreme Court is the ultimate career challenge. Decisions are made by the justices alone in conferences on Wednesdays and Fridays, with Fridays reserved for consideration of any new petitions that have come in.  In both the September and subsequent conferences, the rule of four is applied only if the case makes it on the discuss list, and the Chief Justice creates the discuss list, although other justices can add cases to it.  Cases that don't make the discuss list are denied hearings automatically, and that is the fate of many cases. Some justices will occasionally write a dissenting opinion for a case that was dropped or denied a hearing in order to make it clear that they are not affirming the lower courts decision by not taking the case.

Whenever a Supreme Court vacancy occurs, the President is in a unique situation to influence the course of history. However, because the Senate must confirm nominees, no President appoints someone who is a mirror image of their own value system.  Instead, Presidents usually try to find someone who is moderate or unknown to avoid confirmation battles in the Senate.  For example, when President Bush nominated David Souter, people assured Bush that Souter was sufficiently conservative, but once in office, Justice Souter turned out to be quite liberal.  Presidents cannot even count on their own nominees' support, as when Justices Ginsburg and Breyer turned against Clinton in the sexual harassment case of Clinton v. Jones (1997).  The Senate denies confirmation of Supreme Court nominees one out of every six times.  Presidents whose party hold a Senate majority have 90% of their nominees confirmed; those without a party majority only have 60% of their nominees confirmed.

The Constitution doesn't require that Supreme Court justices be attorneys, but it's always been assumed that only a lawyer should be nominated.  No President has ever nominated a non-lawyer.  Young people are also not appointed to the Supreme Court.  Most justices leave the Supreme Court through death or becoming too ill to continue serving.  Some justices can be lured off the bench by offers of ambassadorships, and only one justice (Samuel Chase in 1803) has ever been impeached (and later acquitted in 1805).  Efforts were made to impeach William Douglas in 1969 for his strong liberalism and Abe Fortas the same year for conflict of interest, but both attempts failed.  Impeachment of a justice is the same as for any other federal official - for treason, bribery, or any high crimes and misdemeanors (Article 2, Section 4).     

The cost of trying a case before the Supreme Court can easily reach $500,000 because attorneys accepted to practice there charge an average of $400 an hour, and it takes a lot of preparation.  If a poor person's case is to be heard, the Court often arranges an excellent attorney to take the case pro bono (free of charge; as part of community service).  Interest groups are major participants in the process, and have two ways they participate -- one, as "sponsors" of a case, where some organization's legal defense fund picks up the costs -- and two, as "friends of the court"; where the organization submits arguments on the party's behalf in written form known as amicus curiae brief.  Filing briefs with the Court is expected from the main parties, too.  With the consent of the main parties or permission of the Court, any person or organization can file an amicus curiae brief.  Representatives of government do not need such permission.  Those who file briefs will be allowed to present oral arguments in a half hour or less.  Amicus curiae briefs are filed in about 90% of all cases, and they are seldom challenged or rejected. 

The most common groups to sponsor or befriend a case are economic groups.  These are trade associations, industry representatives, business associations, professional associations, and employer-based organizations.  That is because most of the cases that come before the Supreme Court deal with antidiscrimination laws against employers.  The second most common groups are organizations like the NAACP, ACLU, the Sierra Club, Planned Parenthood, and public interest, Ralph Nader, groups.  Religious groups have the third highest levels of participation.  The federal government itself, through the office of Solicitor General (in the Justice Department), also participates in about a third of all cases, representing the criminal justice system or taking a stand on issues such as the rights of criminal defendants.

When the Court accepts a case, the justices get to choose which issues they want to hear.  They will limit and direct specific participants to address specific arguments.  They may give the case summary consideration, which means that they do not really need oral arguments and will rely upon the briefs filed by all the parties in the case.  Alternatively, they may give the case full consideration, which means they will hear arguments (four justices must want to hear oral arguments) and then require one or more parties to file additional briefs.  The Supreme Court is not even bound by the specific issues in a case; they can turn it into a landmark decision on whatever they want, and that is precisely what happened in Mapp v. Ohio (1961) when they turned an obscenity case into a restriction on police search and seizure powers.

When the Court decides a case and at least five justices reach the same conclusion, an opinion is normally written.  It's not mandatory that the justices write anything, but they do so in well over two-thirds of all cases tried.  It's also important to understand that an opinion contains two parts -- a justice siding with the majority can dissent from one part of the majority conclusion -- and a justice siding with the minority can concur with one part of the majority conclusion.  This complexity is known as the practice of concurring and dissenting opinions.  There's no common format that opinions must follow, and the only rule is that if at least five justices sign off on an opinion, it's an authoritative statement by the Court. The following table illustrates some of the common patterns in what  justices can and often do, but not always:

The two parts of an opinion are: (1) the remedy; and (2) the legal rule.  The remedy is usually the last part of an opinion, and refers to who wins and who loses.  Sometimes, it's a partial win for both sides.  The Supreme Court can affirm the lower court's ruling, leaving the existing state of affairs undisturbed, or reverse, remand, or void the lower court's ruling, and any combination of these.  The remedy statement will typically appear as something like this: "We reverse the judgment of the lower court and remand the case for further proceedings." Let's define these options more clearly:

• affirm -- let the lower court's ruling stand

• reverse -- overturn the lower court's ruling

• remand -- send the case back to the lower court for a new trial

• void or vacate -- has the same meaning as to reverse the lower court's ruling 

The Court can also issue extraordinary remedies, exerting its power to make significant changes in government policy.  The power to declare something unconstitutional extends not only to laws, but to any government agency, official, policy, or practice. This type of activity is called judicial activism, and it can take several forms:

• overturning an Act of Congress -- occurs about once every two years

• striking down a state law as unconstitutional -- occurs about ten times a year

• decriminalizing something for the nation as a whole - as with abortion or marijuana

• declaring the action of a President unauthorized by the Constitution

• settling an election dispute or wrongful termination by announcing who gets the job

• scrutinizing and advising the way American criminal justice should work

While the remedy is usually related to some unusual type of error or faulty interpretation of federal law made by the lower court, the legal rule, or rule of law, is drawn from a variety of sources and is often the subject of much disagreement.  It is not an easy task to determine the "plurality opinion" in a case where there is an unanimous or near-unanimous majority on the remedy part but disagreement on the rule part.  In recent years, the Supreme Court has been more concerned with rule-making than remedy-making. 

A justice who disagrees with the majority can write or join in either a dissenting or concurring opinion.  A dissenting opinion has the purpose of trying to persuade colleagues to change their minds, and is usually distributed in conference among all the justices before the final opinion is written.  A dissenting opinion can also serve the purpose of setting the stage for later Supreme Court decisions.  In exceptional cases, a dissenting opinion can also urge Congress to overturn the Supreme Court's interpretation of a law.  Often, there are multiple dissenters, but if there is group dissent, one of the dissenters must be recorded as the senior dissenter.  Dissents usually lead to concurring opinions as a defensive tactic.  If there are as many as four dissents, three concurring opinions are usually written.

A justice who concurs with the majority but has some reservations about the route of decision making taken by the Court writes a concurring opinion.  A concurring opinion has the purpose of expressing disagreement with the Court's rationale on legal doctrine.  They want the lower courts and legal scholars to be perfectly clear that the Court is or is not setting some new standard, test, rule, requirement, doctrine, precedent, or exception.  A concurring opinion is written for a wider audience than a dissenting opinion.  In many cases, the desire is to manage the public impact that a particular ruling may have. 

On some issues, the Supreme Court is in agreement with the general public.  Take drugs, for instance, and one can easily determine a pattern in which drugs are seen as a cause of crime, which is in keeping with what the public thinks is the main cause of crime.  You can also see an expansionist policy for police power in handling the drug problem.

In any given term, the Supreme Court addresses a variety of issues.  There are usually several school cases (presumably because the Court takes an interest in the rights of students); several religion cases (presumably because the Court takes an interest in freedom of religion); several Fourth and Sixth Amendment cases (that deal with efficiency of the criminal justice system); several First Amendment (free speech) cases; several harassment cases (sexism, racism, workplace discrimination); a few taxation cases, a few antitrust cases, a few regulatory cases, a few federalism (federal - state relationship) cases, and above all, numerous civil rights cases.

By far, the most common area of Supreme Court activity is in the area of civil rights and liberties. These cases fall into a number of subcategories: equal protection under law, substantive (fundamental freedom) rights, and procedural rights (for those involved in governmental proceedings).  It is in this broad area that restriction and expansion of the rights of criminal defendants are found.  Most criminal cases that come before the Supreme Court deal with the constitutional right to due process.  Others deal with statutory interpretation such as the constitutionality of a criminal law or criminal sentence.  

The second largest area of Supreme Court activity is with economic issues, like taxation, revenue, antitrust, labor-management relations, and environmental protection.  Federalism issues regarding the division of power between federal and state governments fall into this area. The Court is relatively silent on areas of foreign policy and agriculture.        

In recent years, the Rehnquist Court has been restrictionist on civil rights and liberties.  Only about 30% of pro-civil liberty cases have been successful in the 1990s as opposed to an 80% success rate in the 1960s.  The Court has weakened the Miranda and Mapp rules considerably, and perhaps the turning point came in 1997 with U.S. v. Watts when the Court ruled that a federal judge could lengthen a defendant's sentence for an additional offense even if a jury had acquitted the defendant of that offense.  The Rehnquist Court has moved to strike down affirmative action in many ways for racial minorities while at the same time been sympathetic to women's issues.  With the freedoms of speech, press, and religion (other than school prayer), the Rehnquist Court has been surprisingly liberal.  And, not surprisingly, in the area of economic issues, the Court has been overwhelmingly pro-business.  

The Supreme Court usually gets what it wants.  Its policies and pronouncements are carried out almost automatically by the lower courts, the states, municipalities, the criminal justice system, and the executive and legislative branch.  Schools and churches may be slower to come around, and sometimes there's regional rebellion against the Supreme Court and talk in Congress about amending the Constitution to overturn judicial decision making, but by and large, compliance and cooperation follow in the wake of the rule of law.

As the final arbiter of societal conflicts, disputes, and crises, the Supreme Court is a lightening rod for many who are angry with the state of America.  Several people blame the crime problem on the Court. It reaffirmed Miranda in 2000 when it had a chance to do away with it.  It declared school prayer unconstitutional while at the same time striking down a federal law against carrying guns in school zones.  It continues to fight with Congress over abortion, and their latest foray into Presidential politics can only negatively affect that 70% trust and respect rating they get from the American people.   

Internet Resources:
Constitutional Interpretations via the Library of Congress
Cornell's Legal Information Institute
FindLaw's Supreme Court Database
Office of Solicitor General of the U.S.
Oyez Project's Virtual Tour of the Supreme Court

Printed Resources:
Baum, L. (2001) The Supreme Court. Washington D.C.: CQ Press.
Bobbitt, P. (1984) Constitutional Fate: Theory of the Constitution. NY: Oxford Univ. Press.
Ducat, C. (2000) Constitutional Interpretation (7e). Belmont, CA: Wadsworth.
Epstein, L. and T. Walker (2001) Constitutional Law for a Changing America. Washington D.C.: CQ Press.
Gillman, H. and C. Clayton (1999) The Supreme Court in American Politics. Lawrence: Univ. of Kansas Press.
Perry, B. (1999) The Priestly Tribe: The Supreme Court's Image in the American Mind. Westport: Praeger.
Segal, J. and H. Spaeth (1993) The Supreme Court and the Attitudinal Model. NY: Cambridge Univ. Press.
Spaeth, H. and J. Segal (1999) Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court. NY: Cambridge Univ. Press.

Last updated: 06/25/03
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