The Supreme Court

1. of the United States Court 101 The Supreme Court Justices Selecting Cases Deciding Cases Policy

2. 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 L’Enfant designed Washington DC he forgot to plan for the Court building • The Supreme Court didn’t have a permanent home until 1935

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

4. Jurisdiction • Original jurisdiction:1) cases involving representatives of foreign governments 2) certain cases between different states • Appellate jurisdiction:1) 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?

5. The Justices • The court currently has 8 justices and 1 Chief Justice (John G Roberts, Jr) • 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.

6. 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 O’Conner, Ruth Bader Ginsberg, latest 2 Obama nominess) have been appointed in the last 50 years.

7. 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 justices:1) 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

8. 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

9. Appointing Justices • Politics has become increasingly critical in the president’s 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.

10. Appointing Justices • The American Bar Association’s (ABA) Comm. on the Federal Judiciary ranks federal court nominees professional qualifications • Rankings: well qualified, qualified, not qualified. • President’s 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. O’Conner was recommended by Rehnquist

11. The Supreme Court at Work

12. 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

13. 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.

14. 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”.

15. 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

16. 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.

17. Steps in Deciding A Case:Step 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

18. Steps in Deciding A Case:Step 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 time’s up. • Lawyers follow Court protocol, failure to do so often means you can’t come back.

19. Steps in Deciding A Case:Step 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

20. Steps in Deciding A Case:Step 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

21. Steps in Deciding A Case:Step 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

22. How the Court Shapes Policy Three tools: • 1) Judicial review- Court’s 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

23. Limits on Court Power • Types of issues- The Court has little influence in the area of foreign policy. • Rules for accepting a case:1) 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

24. 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 Court’s 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

25. How the Court Shapes Policy Three tools: • 1) Judicial review- Court’s 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