The Supreme Court in the American System of Government

The Issues:  What is the function of the Supreme Court?  What sort of justices best serve the Court's high purposes?  How does the Court decide which cases to review, and how does it decide the cases that it does review?


The  Supreme Court  takes its powers from Article III  of the Constitution.  Article III, §1  provides  that  "the  judicial power of the United States,  shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."  In 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.

The Court currently consists of a chief justice and eight associate justices, 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 life.  The 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 office. 

The Term of 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 filed with 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 year.  These applications can be acted upon by a single justice.

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 the 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 (


Elena Kagan Becomes Newest Justice

In June, 2010, President Obama nominated Elena Kagan (Solicitor General and former Dean of the Harvard Law School) to be the newest Supreme Court justice, replacing John Paul Stevens.  The addition of Kagan, 50, to the Court is not expected to change the overall balance of the Court.  Justice Kennedy will remain the key swing vote on many issues.

Top row: Justices Sotomayor, Breyer, Alito, and Kagan
Bottom row: Justices Thomas, Scalia,  Roberts (C. J.), Kennedy, and Ginsburg
(October 2010)
Let's take a case through from its initial Supreme Court decision to final decision.  The case is the landmark 1969 home privacy decision, Stanley v Georgia.  Examine the documents and records below sufficiently to understand the purpose of each document and its potential significance to the outcome of the case:
(1) Jurisdictional Statement for Robert Stanley
Note: A Jurisdictional statement is virtually identical in purpose and substance to a petition for certiorari.
(2) Motion to Dismiss the Appeal and Affirm the Judgment
(3) Questions Presented for Review
(4) Brief of Appellant on the Merits
(5) Transcript of Oral Argument in Stanley v Georgia (1/14/69)
(6) Notes of Supreme Court Conference (1/17/69)
(7) Opinion of the Court in Stanley v Georgia (4/7/69)
(8) Concurring Opinion of Justice Stewart in Stanley (4/7/69)

Justice Thurgood Marshall, author of the Court's opinion in Stanley

Link: 4th Amendment

Consider these questions about Stanley v Georgia:
1. What questions did Stanley's lawyer initially see as the most promising, and did they turn out to be the decisive issues in the majority's opinion? 
2. How important were the facts of this case, and what facts seemed to be of greatest interest to justices during oral argument? 
3. Did any justice express a different view in conference about the case than the view reflected in the opinion he either wrote or joined?
4. What is the holding of Stanley
5. Would the case have come out differently if Stanley had been caught showing the films to his dinner guests? 
6. Would it have been decided the same if the films had been discovered on his person while he was walking down a street?
7. What is the significance of the concurring opinion? 
8. Does Stanley tell us exactly what sort of materials an individual has a constitutional right to use in his own home? 
9. Would the result have been different if Stanley possessed child pornography? 
10. Could one argue that Stanley offers protection for the private possession of illegal drugs?  (Tha Alaska Supreme Court thought so.  See its decision extending  Stanley to find constitutional protection for the private possession of marijuana for personal use: Ravin v State (1975).)

Familiarize yourself further with the process used by the Supreme Court by reading the following short essay: A History of the Supreme Court (FindLaw)

General Questions for Class Discussion

1.  How does the Supreme Court compare in its power to the other two branches of government?  Is it the most powerful because it has the last word as to the meaning of the Constitution and can order other branches to comply with its dictates?  Is it the weakest branch because it has only a few marshals to enforce its orders?  Is it "the least dangerous branch"?
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?

Politics and the Supreme Court

Few would deny that the political values of justices, as well as theories of constitutional interpretation, play a role in their decisions in specific cases.  The conservative wing of the Court, for example,  generally favors a restrictive interpretation of the federal commerce power (and therefore a broad view of states' rights), favors an expansive interpretation of the 11th Amendment,  and rarely votes to overturn criminal convictions.  The conservatives also take a skeptical view of affirmative action, are likely to reject most substantive due process, procedural due process, and establishment clause claims, and are generally reluctant to expand the fundamental rights strand of equal protection law (unless the plaintiff is George Bush, cynics would say).  The moderate-liberal wing of the Court is likely to take the opposite side on all of the above-mentioned issues.

Another way of dividing Supreme Court justices is between "judicial activists" (those who are relatively willing to invalidate acts of federal and state legislatures and executive branches) and "advocates of judicial restraint" (those who are more reluctant to use their judicial power to invalidate).  There are both conservative and liberal judicial activists.  Justices Scalia and Thomas, for example, are conservative activists while Justice William O. Douglas was a liberal judicial activist.  Current thinking suggests that Chief Justice Roberts is likely to prove to be a conservative advocate of judicial restraint, possibly in the mold of John Marshall Harlan.  There also have been liberals on the Court who advocated judicial restraint, including Felix Frankfurter.


Chief Justice John Roberts
The Chief Justice is striving to have the Supreme Court function more as a true court, submerging some of the political differences that exist and producing more unanimous opinions on narrower points of law.

Five members of the current Supreme Court were appointed by Republican presidents.  Four justices were nominated by a Democratic president.  The standard (and simplistic) view of the current Court's politics is:

THE CONSERVATIVES: Scalia (appointed by Reagan) , Thomas (appointed by George Bush, Sr.),   Alito (appointed by George W. Bush),  and C. J. Roberts (appointed by George W. Bush).
"SWING JUSTICE": Kennedy (appointed by Reagan).   Justice Kennedy is more moderate than the conservative justices.  His views tend to be more libertarian than, for example, those of Chief Justice Roberts.

THE LIBERALS: Breyer (appointed by Clinton),  Ginsburg (appointed by Clinton), Sotomayor (appointed by Obama), Kagan (appointed by Obama).

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