Supreme Court

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Date: 2022
Publisher: Gale, part of Cengage Group
Document Type: National organization overview
Length: 2,780 words
Content Level: (Level 5)
Lexile Measure: 1410L

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The Supreme Court of the United States is the nation's highest seat of judicial authority. Established in 1789 under Article III of the US Constitution, the court acts as a check on the power of the legislative and the executive branches of the federal government. The court also retains the power of judicial review, a practice established by Chief Justice John Marshall in Marbury v. Madison (1803). Judicial review allows the court to uphold or invalidate state and federal laws or executive decisions based on whether those laws or decisions comply with the Constitution. The court's mandate to interpret the law gives it considerable power to shape government policy and define the limits of constitutional principles such as states' rights and freedom of the press.

Most cases are heard in the federal judiciary's lower courts—which include ninety-four district (trial) courts, thirteen appellate courts, and two special courts—before being heard in the Supreme Court. Only a few cases, such as disputes between states or high-ranking officials, are originally heard in the Supreme Court. In 2018, for example, the court heard arguments in Texas v. New Mexico and Colorado regarding water agreements between states. When plaintiffs are dissatisfied with a lower court's decision, they may file a petition for a writ of certiorari with a higher court. The Supreme Court receives thousands of petitions a year but typically grants writ of certiorari to only a very small percentage, reviewing and hearing between 100 and 150 cases a year.

The process of appointing justices to the Supreme Court begins with the president, who holds the power to nominate candidates under Article II of the Constitution. The Senate Committee on the Judiciary holds hearings to assess the nominee's fitness for the position. A majority vote in the Senate is required for confirmation. Justices may serve for life or until they choose to retire. Justices may be impeached, but this has only occurred with one justice, Samuel Chase (1741–1811), who was acquitted. Congress has the power to determine the number of judges on the court. Since the passage of the Judiciary Act of 1869, the size of the court has been fixed at nine justices.

Though the ideological makeup of the Supreme Court has shifted repeatedly, the court has come under increased criticism for becoming too politicized in the first decades of the twenty-first century. Such criticism intensified as conservative justices secured a majority in October 2020 with the confirmation of Justice Amy Coney Barrett. The potential of this majority to transform federal law became apparent in June 2022 when conservative justices called decades of legal precedent into question with its decision in Dobbs v. Jackson Women's Health Organization. The court's ruling overturned Roe v. Wade (1973), which had established the constitutional right to abortion by determining that certain state laws restricting abortions were unconstitutional. Further, the majority and concurring opinions in Dobbs outlined the vulnerability of other legal precedents, implying it could have far-reaching implications for other controversial issues.

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Main Ideas

  • One of three branches of the federal government, the Supreme Court serves as a check on the powers exercised by Congress and the president. The power of judicial review allows the Supreme Court to determine whether federal or state laws and executive orders comply with the US Constitution.
  • The US Constitution allows the president to appoint justices to the bench, but confirmation depends on a majority vote in the Senate. Appointments and confirmation hearings became especially politicized and contentious in the first decades of the twenty-first century.
  • The number of justices on the court was fixed at nine under the Judiciary Act of 1869. Justices are appointed for life but can choose to retire.
  • The Supreme Court has ruled on many of the most contentious social and political issues in the country's history, including segregation, abortion, gun rights, labor issues, campaign finance, and marriage equality.
  • The Supreme Court has protected individual liberties and expanded civil rights through case rulings and by affirming the constitutionality of federal law.
  • The chief justice position was last filled by a liberal presidential administration in 1969. In the early twenty-first century, conservatives appointed by Republican presidents have held a majority on the court. Some conservative justices have sided with the liberal minority on several major court decisions.
  • Conservative legal professionals established the Federalist Society for Law and Public Policy Studies in 1982 to support conservative judges. As of 2022, the majority of Supreme Court justices maintain membership in the Federalist Society.

Expanding Civil Rights and Individual Liberties

The court last held a solidly liberal majority under Chief Justice Earl Warren, who served from 1953 to 1969. The Warren Court advanced civil rights, individual liberties, and the interests of marginalized groups in society. Major rulings included Brown v. Board of Education of Topeka, Kansas (1954), which mandated the racial desegregation of public-school facilities, along with decisions to uphold the Civil Rights Act of 1964 and Voting Rights Act of 1965. The Warren Court expanded the rights of criminal defendants through Gideon v. Wainwright (1963) and Miranda v. Arizona (1966). The Senate confirmed President Lyndon Johnson's nomination of the Supreme Court's first African American justice, Thurgood Marshall, in 1967.

The Warren Court determined that state bans on the use of contraceptives by married couples violated the Fourteenth Amendment in Griswold v. Connecticut (1965), affirming privacy within marital relations to be a constitutional right. The court's interpretation of a constitutional right to privacy in the Griswold decision laid the legal foundation for the court's decisions in Roe v. Wade and Obergefell v. Hodges (2015), affirming the right to same-sex marriage.

Ideological Shifts

The ideological makeup of the Supreme Court became more conservative after President Richard Nixon nominated Warren Burger as chief justice in 1969. Burger served until his retirement in 1986 and was the first of ten consecutive Supreme Court justices to be appointed by a Republican president. Some justices appointed by Republican presidents frequently sided with their liberal colleagues once they reached the bench, such as Harry Blackmun and David Souter. Others, such as Sandra Day O'Connor, occupied the middle ground as occasional swing voters. O'Connor, nominated by President Ronald Reagan in 1981, was the first woman nominated to the Supreme Court, appointed with unanimous approval in the Senate.

The Burger Court decided several rulings in the interests of protecting individual and collective freedoms while limiting the power of the state, including Roe v. Wade (1973). In New York Times Company v. United States (1971), commonly known as the Pentagon Papers case, the court affirmed the right of a free press to expose public deception by the government. Three years later, in United States v. Nixon (1974), the Burger Court ordered President Nixon to comply with a subpoena during the investigation of the Watergate scandal, contributing to the president's decision to resign. The court also upheld campaign finance regulations in Buckley v. Valeo (1976) while limiting government regulation of campaign spending.

President Ronald Reagan oversaw the confirmation of William Rehnquist to the position of chief justice, in which he served from 1986 until his death in 2005. President Reagan filled Rehnquist's vacated associate justice seat with Antonin Scalia. President Reagan also nominated Anthony M. Kennedy, who was confirmed by the Senate in 1988. President George H. W. Bush appointed Justice Clarence Thomas in 1991. President Bill Clinton oversaw the nominations and confirmations of Ruth Bader Ginsburg, the first Jewish woman on the court, in 1993 and of Stephen Breyer in 1994. Under Rehnquist, the court reflected the growing conservatism and accusations of political bias that would come to typify the court in the late twentieth and early twenty-first centuries. The Rehnquist Court's controversial ruling in Bush v. Gore (2000) put an end to a recount of votes in Florida for the 2000 presidential election, resulting in George W. Bush becoming the forty-third president.

Interpreting Rights in the Twenty-First Century

George W. Bush nominated John G. Roberts Jr. to fill the chief justice position after Rehnquist died in 2005. The first appointment to the Roberts court came in 2006 when Bush appointed Samuel A. Alito Jr. Several rulings of the Roberts court put forth novel interpretations of rights. On several occasions, the court ruled to expand the rights of corporations. Critics have characterized the court as more sympathetic to business interests than any Supreme Court since 1945, when it ruled on corporate responsibility in interstate commerce in International Shoe Co. v. Washington.

Some decisions weakened labor rights, such as the ruling in Ledbetter v. Goodyear Tire & Rubber Company (2007) that a woman seeking restitution could not sue for pay discrimination after the 180-day limitation period set by Title VII of the Civil Rights Act of 1964, though she was not initially aware of the discrimination. The Roberts court has repeatedly ruled in favor of corporations in cases regarding environmental regulations and the federal government's ability to enforce them. Activists and others have expressed concern that such rulings would prevent the government from enacting and enforcing practical and effective environmental policy. Those fears became further realized when the court ruled in West Virginia v. Environmental Protection Agency (EPA) (2022) that the EPA could not impose new regulations without explicit authorization from Congress to address a specific issue, which, in that case, referred to the climate crisis.

The Roberts court's ruling in Citizens United v. Federal Election Commission (2010) generated significant controversy. The court focused on two broader questions: whether spending money was a form of speech and whether corporations should have equivalent free speech rights as individuals in their funding of political campaigns. The court concluded that corporate "persons" and labor unions can draw from their general treasuries, allowing these entities to spend unlimited amounts to influence the outcome of elections. The ruling overturned several judicial precedents and nullified campaign finance laws dating back more than a century.

Regarding gun rights, the Roberts court has contributed significantly to how courts interpret the Second Amendment in the early twenty-first century. The court has ruled repeatedly to overturn state and local laws imposing restrictions on firearms. In District of Columbia v. Heller (2008), the court ruled that the Second Amendment guaranteed gun ownership as an individual right separate from the maintaining of a militia. This precedent made passing gun control legislation a gamble for state and local governments, complicating efforts to reduce gun violence. For example, in New York State Rifle & Pistol Assn., Inc. v. Bruen (2022) the court struck down a law limiting permits for concealed firearms.

The election of Barack Obama brought the appointment of liberal justices with the confirmation of Sonia Sotomayor, the first Supreme Court justice of Hispanic descent, in 2009 and Elena Kagan in 2010. They joined their liberal colleagues as well as conservative Anthony Kennedy in deciding to affirm marriage equality rights in Obergefell v. Hodges (2014). The decision built upon an interpretation of the Fourteenth Amendment previously applied in Roe v. Wade and other cases related to privacy and other rights not explicitly identified in the Constitution. In Bostock v. Clayton County (2020), two conservative justices sided with their liberal colleagues in affirming employers could not discriminate against employees based on sexual orientation or gender identity.

In Shelby County v. Holder (2013), the court invoked the Tenth, Fourteenth, and Fifteenth Amendments in ruling a section of the Voting Rights Act of 1965 unconstitutional. Originally passed to address racial discrimination in the voting process, the act prohibited certain jurisdictions from making new voting laws without federal approval. By overturning this section of the law, the court enabled state and local governments to enact restrictions that democracy experts warned would hurt voters of color, voters of lower socioeconomic status, rural voters, and other marginalized groups.

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Critical Thinking Questions

  • How would you characterize the role of the Supreme Court within the federal government, and do you believe the court wields an appropriate amount of power?
  • Do you think Supreme Court justices should be subjected to term limits? In what ways do you think such limits would affect US law?
  • In your opinion, has the Supreme Court become too politicized in the twenty-first century? Explain your answer.

Politicization of the Court

Historically, Supreme Court justice appointments are politically charged processes, though some confirmation processes have led to greater contention than others. The process became especially heated due to arguments between Republicans and Democrats during the final year of President Obama's second term. Conservative Justice Scalia died suddenly in February 2016, leaving a vacant seat on the court. Nine months out from the general election, the Republican-controlled Senate led by majority leader Mitch McConnell (R-KY) refused to consider Merrick Garland, President Obama's nominee to replace Scalia. McConnell argued that the seat should remain vacant until the next president took office. Garland's nomination lasted 293 days, longer than any other in Supreme Court history, and the Senate never allowed his nomination to proceed to a confirmation hearing. The delay by Senate Republicans allowed Obama's successor, Republican president Donald Trump, to nominate federal appellate judge Neil Gorsuch, a conservative, to fill the vacancy in 2017.

President Trump drew his nominees from a list of candidates recommended by Leonard Leo, the former executive vice president of the Federalist Society for Law and Public Policy Studies. The organization was founded in the 1980s by legal professionals and law students to cultivate a greater conservative presence in law schools and federal and state judiciaries. The organization promotes the idea of originalism, a legal approach that asserts the Constitution should be interpreted as it was understood at the time it was written. Chief Justice Roberts, along with Justices Alito and Thomas, are members of the Federalist Society, and Gorsuch's nomination sparked concern that the organization would soon gain effective control over the nation's highest court. Democrats in the Senate strongly opposed Gorsuch's nomination and filibustered the choice to prevent the Senate's vote on his appointment. In response, Senate Republicans invoked a rule change allowing Gorsuch to be confirmed with a simple majority of fifty-one votes rather than the supermajority of sixty votes previously required.

Justice Kennedy announced in June 2018 that he would be retiring the following month, providing President Trump with another opportunity to select a justice. Trump once again conferred with the Federalist Society, whose members recommended Brett Kavanaugh, a federal judge who had previously worked for the second Bush administration. Republicans threw their full support behind Kavanaugh, even after accusations of sexual assault against Kavanaugh surfaced. The nominee's Senate hearing turned extremely contentious. The Senate confirmed Kavanaugh in October 2018.

In September 2020, two months out from the November presidential election, Justice Ginsburg died, leaving a vacancy on the Supreme Court. Ginsburg, a liberal justice who served twenty-seven years on the court, often played a key role in issuing dissenting opinions against the Roberts court. Despite previous arguments put forth by Republicans for refusing a hearing for President Obama's nominee in 2016 during an election year, McConnell announced that the Senate would immediately move forward with confirmation hearings.

Trump nominated federal judge Amy Coney Barrett, also a Federalist Society member, to take Ginsburg's place. Hearings on her confirmation were held less than a month before the election. With a slim Republican majority in the US Senate, Barrett's nomination was pushed through as early voting was ongoing in many states. Her confirmation occurred less than two weeks before the election. Like all other conservative justices on the court, Barrett testified during her confirmation that she did not have a political agenda and that she acknowledged the precedents already established by the court, including its ruling on Roe.

On January 26, 2022, Justice Stephen Breyer announced his retirement from the court. Appointed by President Bill Clinton in 1994, Breyer served as one of the more liberal justices. President Joe Biden nominated Judge Ketanji Brown Jackson in March 2022. Confirmed by the Senate on April 7, 2022, Brown became the court's first Black female justice, replacing Breyer. The overall makeup of the conservative court did, however, not change with Brown's appointment.

During the court's 2021–2022 term, conservative justices provided majority opinions in many cases that reversed long held legal traditions, including school prayer (Kennedy v. Bremerton School District), tribal sovereignty (Oklahoma v. Castro-Huerta), and Miranda rights (Vega v. Tekoh). The court's ruling in Dobbs v. Jackson Women's Health Organization was preceded by a leaked draft of the majority opinion asserting that Roe v. Wade had been improperly decided and should be overturned. Anti-abortion groups celebrated the ruling, while conservative officials immediately moved forward with abortion restrictions in several states. Legal experts, as well as both conservative and liberal activists, anticipate that the Roberts court's originalist opinions, and the Dobbs decision specifically, will lead to more decisions to overturn precedent, especially in cases based on the implied constitutional right to privacy.

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Gale Document Number: GALE|PC3010999048