Court takes its powers from Article
III of the
Constitution. Article III, §1
that "the judicial power of the United
be vested in one supreme Court, and in such
inferior Courts as the
Congress may from time to time ordain and
accordance with this provision, the Suprem Court
of the United States
was created by the authority of the Judiciary Act
of 1789. The
Court met for the first time on February 2, 1790.
currently consists of a chief justice and eight
each with equal voting power to the chief's.
(The number of
justices has varied, beginning with six, then
increasing to seven in
1801, and finally to nine in 1869.) Each justice
is nominated by the
President, confirmed by the Senate, and serves for
Senate confirmation process begins with hearings
before the Judiciary
Committee and ends with a vote of the full
Senate. A simple
majority is required for confirmation.
Justices who commit "high
crimes or misdemeanors" are subject to impeachment
and removal from
the Court begins, by law, on the first Monday in
October. In a
typical year, decisions are announced in all the
argued cases by the
end of June. An average of about 7,000 to
8,000 petitions are
the Court over the course of a single Term; of
those only about 100 or
so are set for full briefing and oral
argument. In addition to
the petitions, another 1,200 or so applications
(e.g., a request for an
immediate stay of a decision below) are filed each
applications can be acted upon by a single
The Court and Constitutional Interpretation
"The republic endures and this is the symbol of its faith."
CHIEF JUSTICE CHARLES EVANS HUGHES, Cornerstone Address—Supreme Court Building
EQUAL JUSTICE UNDER LAW — These words, written above the main entrance to the Supreme Court Building, express the ultimate responsibility of the Supreme Court of the United States. The Court is the highest tribunal in the Nation for all cases and controversies arising under the Constitution or the laws of the United States. As the final arbiter of the law, the Court is charged with ensuring the American people the promise of equal justice under law and, thereby, also functions as guardian and interpreter of the Constitution.
The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence.
"The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans . . . . A more imposing judicial power was never constituted by any people."
The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American "experiment in democracy" with the oldest written Constitution still in force.
The Constitution of the United States is a carefully balanced document. It is designed to provide for a national government sufficiently strong and flexible to meet the needs of the republic, yet sufficiently limited and just to protect the guaranteed rights of citizens; it permits a balance between society’s need for order and the individual’s right to freedom.
To assure these ends, the Framers of the Constitution created three independent and coequal branches of government. That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government.
The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.
While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.
Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.
Despite this background the Court’ s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’ s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.
In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves."
The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court’s history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.
The Justices must exercise considerable discretion in deciding which cases to hear, since more than 7,000 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between States or between a State and the Federal Government.
When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.
Chief Justice Marshall expressed the challenge which
Supreme Court faces in maintaining free government by
noting: "We must
never forget that it is a constitution we are expounding
. . . intended
to endure for ages to come, and consequently, to be
adapted to the
various crises of human affairs."
From the U.S. Supreme Court web site (www.supremecourtus.gov)
General Questions for Class Discussion
2. What factors should be most important in the determination of the Court whether or not to review a decision below? How much justices disagree with the decision below is? Whether there is a split among courts of appeal with respect to the issue? Whether clarification of the law at issue might be of significant benefit to the country?
3. What steps in the process of deciding cases are most critical to the final outcome? The framing of the specific questions for determination? The briefs? The oral argument? Discussion at conference? When in the process and the minds of various justices most likely to change?
4. Can law clerks influence the outcomes of cases? Newspapers? How true is the statement, "The Supreme Court reads the election returns"?
5. What would the membership of an ideal Supreme Court look like? Would it include male and female members of diverse racial and religious backgrounds? Should it include younger members as well as older members, gay members as well as straight members, conservatives as well as liberals? What would be the disadvantage of having nine like-minded justices (so long as you agreed with their approaches to judging)? Senator Roman Hruska of Nebraska once said, when Richard Nixon nominated for the position of justice a lawyer, Harold Carswell, who was criticized for having an undistinguished record: "Even if he was mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there." What do you think of Hruska's point?
6. If you were president and had the opportunity to make an appointment to the Supreme Court, how would you choose your nominee?
7. If the President is free to nominate someone for the Supreme Court because he likes his or her judicial philosophy, should the Senate equally be free to reject the nominee because they dislike his or her judicial philosophy, or ought the President be given some deference?
The Supreme Court of the
United States: Selected Links
the Supreme Court