Our goal here is simple: to use the current battle over confirmation of the next Supreme Court Justice as a springboard to learn more about the judiciary. How important is the Supreme Court? What influence do Americans have on the appointment and confirmation of justices? Should the process be more or less democratic? How much should a candidate for the Supreme Court have to explain his position on certain issues?
The resignation of Justice Sandra Day O’Connor has unleashed a political battle that will dominate our nation’s attention for the next two months, and maybe longer. Television, magazines, newspapers and the internet are already abuzz with chatter about filling her vacancy. This is the first Supreme Court nomination within the era of non-stop, 24-hour news coverage and media spotlight.
This creates a unique opportunity to educate ourselves and our children about the United States Supreme Court. Students may be awakened to an interest in law or history or politics. All of us are better off becoming more informed. The more we know, the better we can protect and promote our values.
Virtually every area of our lives has been touched by the United States Supreme Court. This course offers an engaging treatment of this important topic. Sign up, and learn!
II. The Importance of Precedent.
The Supreme Court, or simply “the Court,” has consisted of a total of nine justices for nearly 150 years. Congress can change the number and at times in our nation’s very distant past the number has been different. But no one has attempted to alter the number of justices since Americans repudiated President Franklin Roosevelt’s “court-packing” plan in 1937. Then President Roosevelt sought to add justices in order to sway the Court to his liking, and even his own party in Congress rejected the plan. The episode wounded President Roosevelt politically and set a strong precedent against anyone trying this again.
“Precedent” is a term that everyone should understand and use. It has enormous significance to the Supreme Court. A legal “precedent” is a holding in a case that influences the resolution of future, similar disputes. For example, the Supreme Court banned school prayer in 1962, in Engel v. Vitale. That “precedent” has prohibited classroom prayer in public school to this day, and has been used to censor many other religious activities from school.
There are also important political precedents. George Washington set the precedent that a president should not serve more than two terms. This was not written into law anywhere, but American presidents obeyed the precedent for nearly 150 years. When President Franklin Roosevelt broke the precedent by being elected four consecutive times as president, Americans subsequently acted to prevent anyone from doing that again. After President Roosevelt died, Americans ratified the Twenty-second Amendment limiting to two terms or ten years the maximum duration of service by a president.
However, sometimes the precedent is wrong, as in the notorious Supreme Court decision of Roe v. Wade (1973), which invented a constitutional right to an abortion. The Supreme Court often overrules precedents that are wrong, as discussed in Part VI below, but has not yet overruled Roe v. Wade.
Most important legal precedents are established by the United States Supreme Court, because all other courts in America must abide by them. Unlike most countries, the United States is governed by the “Rule of Law.” The richest or most famous person must obey this law just like anyone else. No one is “above the law,” not even the president.
III. Supreme Court Practices.
Each year, the Supreme Court decides the outcome in about 80 new cases. That number, which has been declining, is only a tiny percentage of the thousands of cases appealed to the Supreme Court each year. But the Court refuses to hear the appeals in over 95% of the cases brought to its attention. The Court will often allow injustices to remain simply by saying it is too busy to hear the dispute.
While the president cannot serve more than two full terms, or typically eight years, Supreme Court Justices can serve for the rest of their lives. Chief Justice Rehnquist, who is expected to resign in the last week of June this year, has served for 33 years. That is not even the record, as several justices served even longer. William O. Douglas served longest on the Supreme Court, serving 36 years and almost 7 months, from 1939-1975. John Marshall served 34 years, the longest tenure as Chief Justice of the Supreme Court. Stephen J. Field, Joseph Story, Hugo Black and William J. Brennan Jr. have all served for 34 years on the Court.
Over the years, Congress has threatened to impeach and remove from offices particularly controversial justices. The U.S. Constitution confers this power on Congress. But during the Jefferson Adminstration in the early 1800s, a political attempt to remove Supreme Court Justice Samuel Chase failed. The House of Representatives impeached him, but the Senate voted against removing him from the Court. That set a precedent against congressional impeachment of a justice and none has ever been removed by Congress.
The result is that once a justice is sworn into office, he alone decides when he will resign. In the past thirty years, Supreme Court Justices have typically served as long as their health would permit. They serve far longer than the president, sometimes more than eight times longer.
IV. How the Supreme Court Selects and Decides a Case.
Each year, approximately 7,500 cases come before the Supreme Court. Imagine trying to sort through all these cases, trying to decide which of these cases are important legal matters and worthy to be heard. The Court uses a refining process to filter through all the unimportant or frivolous matters. The Chief Justice resides over the selection process and he can choose which cases are placed on the “discuss list” or dropped onto the “dead list.” About one-third of cases make it to the “discuss list” where they can be brought up again at the Court’s weekly conference to be discussed further. The remaining cases are placed on the “dead list” and are only brought back up if a justice strongly insists.
At the conference, the justices vote on which cases to hear. If four justices vote in favor of a specific case, then a “writ of certiorari” is issued. This is a formal document sent to the respective lower court stating that the Supreme Court will hear the case. The process, by which four justices select a case, is referred to as the “rule of four.” A case that is not accepted is “denied cert” and the previous ruling of the lower court stands.
After the Court issues a “writ of certiorari,” the respective parties on each side submit briefs to the Court. At this time, third parties such interest groups, advocacy groups and even the federal government through the solicitor general, have the opportunity to submit “amicus curiae” briefs, which means “friend of the court” briefs. Next, oral arguments are scheduled for the days when the Court is sitting, a two-week period followed by a two-week recess. During the actual presentations, a lawyer from each side has 30 minutes to present his or her case to the Court.
The justices then meet in a conference where they vote on the respective cases, with a majority or plurality vote prevailing. In the event of a tie, where one justice is ill or has been recused himself due to a potential conflict of interest such as prior involvement with the case, the lower court’s decision stands. Although this voting is not final, it is the basis for deciding who writes the opinions. If the Chief Justice is in the majority, then he has the power to assign who writes the opinion or he may choose to write it himself. When he falls in the minority, the privilege falls to the senior associate justice in the majority.
Next comes the wait, which is all too familiar in dealing with the government. The issuance of the opinions can be delayed for many months. During this time the votes may change, but that is very rare. The final decision is typically announced sometime before the Court adjourns for the summer. The majority opinion states the legal reasoning behind its decision and it becomes the all-important precedent for future courts to follow. Meanwhile, justices in the minority are at liberty to issue their own dissenting opinions, which may carry weight in future cases or similar issues.
V. How One Becomes a Supreme Court Justice.
Most people grow up wanting to be a popular figure they see on television, such as an actor, an astronaut, a politician or maybe a hero of some type. Besides their nominations, Supreme Court Justices are almost never on television, and most people could not even identify them.
One of the first steps to becoming a potential nominee is to work on DC Circuit Court, which has entirely different caseload. The advantage is that you are already in town, known to the politicians, and don’t have to move and become acclimated to a new environment. Studies show that justices selected from outside of Washington, D.C., tend to change their positions more often upon moving to that town. The DC Circuit is widely considered the most influential and important federal panel outside of the Supreme Court, and so it makes a great stepping-stone to a seat on the Supreme Court.
The privilege of serving for life has made nominations to the Court extremely important. The effect of a President’s nomination can carry out for thirty more years. A potential nominee is faced with relentless media and political pressure from both sides. Every influential event in their past is examined and questioned; a nominee must be able to effectively deal with this pressure.
John Roberts, Bush’s current nominee to replace O’Connor, is a prime example. He served on the DC Circuit and has worked on the DC scene for most of his career. He clerked for Chief Justice Rehnquist and worked in the White House and Department of Justice. He also has an impeccable resume having served in respectable positions his entire life. It has been difficult to find anything to impede his nomination, much like Bush’s opposition has done for his other nominees.
VI. How Often the Supreme Court Reverses Its Own Decisions.
The Supreme Court has disregarded several of its own established precedents. After the landmark “separate but equal” decision in Plessy v. Ferguson (1896), the Supreme Court overruled it in the 1954 case Brown v. Board of Education (1954). In the 1943 decision of West Virginia State Bd. of Educ. v. Barnette, the case in which the Court ruled that school children could not be forced to recite the pledge of allegiance or salute the American flag, the Court overruled a decision of only three years earlier Minersville School Dist. v. Gobitis (1940).
A recent example was in Hudson v. United States (1997), when the Supreme Court unanimously overruled its own prior unanimous decision of United States v. Halper (1989). Supreme Court nominee John Roberts had argued for Halper, and the Court agreed with Roberts in 1989, that the Double Jeopardy Clause of the Fifth Amendment protected a defendant against a new lawsuit by the government to impose a large fine for conduct for which he had earlier been convicted. In Hudson the Supreme Court completely reversed its own precedent.
There are many other examples, though less well-known. In all its haste to establish judicial precedent, the Court does reverse itself.
Write down at least three aspects of the Supreme Court that you do NOT understand. Then write down how you might find answers to those questions.
For extra credit: email me names and citations to Supreme Court decisions, in addition to those mentioned in Part VI above, in which it has overturned one of its own prior decisions.
Next Class: Who is John Roberts?