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Supreme Court of the United States

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Not to be confused with the grumpy old Scotsman of the same name.
The Supreme Court building at dusk.
Dissents speak to a future age. It's not simply to say, 'My colleagues are wrong, and I would do it this way.' But the greatest dissents do become court opinions and gradually over time, their views become the dominant view. So that's the dissenter's hope: that they are writing not for today, but for tomorrow.
—Associate Justice Ruth Bader Ginsburg.[1]
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The Supreme Court of the United States (SCOTUS) is the highest federal court in the United States, and it has final appellate jurisdiction over all cases which involve US federal law. It consists of a certain number (currently nine) justices who are nominated by the President of the United States and subject to confirmation by the United States Senate. Once confirmed, the justices may serve for life, or until their voluntary resignation, or until they are impeached by the United States Congress.

The Court is most notable for exercising the power of "judicial review", which allows the body to invalidate local, state, or federal laws which they find to be in violation of the United States Constitution. It is also the final court of appeals. Judicial review is not mentioned in the Constitution, but it was established in the 1803 case Marbury v. Madison and most legal scholars today accept that judicial review is a proper power of the Court.[2]

Although the Court's original jurisdiction is as a trial court, the majority of its most influential decisions come from its function as an appellate court.[2] The Supreme Court also hears lawsuits between the U.S. states,[2] as with the suit by Nebraska and Oklahoma against Colorado's legalization of marijuana in 2014.[3]

The court usually hears no more than 100-150 cases a year, but they're typically presented with around 7,000 requests in the same period.[4] The Court is in now way obligated to hear any case, and it has broad discretion in choosing which are worthy of its time. In deciding a case, each justice gets one vote (which is why it's important that the Court have an odd number of justices). When in majority decision, the chief justice decides who writes the opinion of the court; otherwise, the most senior justice in the majority assigns the task of writing the opinion.

Key issues dealt with by the Court in recent years include same-sex marriage, gerrymandering, trade union fees, and Donald Trump's travel bans.[5]

Composition[edit]

Appointment and confirmation[edit]

Article II, Section 2, Clause 2 of the US Constitution is known as the "Appointments Clause", and it empowers the US president to nominate justices to the Supreme Court whenever he deems it necessary.[6] The Clause also requires, however, that the president gain the "Advice and Consent" of the US Senate for that nomination to take effect. Under current procedures, the Senate puts nominees to be examined before the Judiciary Committee before sending them to be voted on by the body as a whole.[7] The Senate tends to take SCOTUS nominees pretty damn seriously, and historically they've rejected more than a quarter of the people various presidents have brought before them.[7]

Some of the fiercest confirmation fights in the Senate were over Ronald Reagan's nominee Robert Bork (scuttled by the Democrats for being a wingnut), Clarence Thomas for sexual harassment allegations, and Brett Kavanaugh who also faced sexual misconduct allegations.[8] Most irregularly of all, Senate majority leader Mitch McConnell infamously used his Republican majority to refuse to even consider Barack Obama's nominee Merrick Garland on the basis that the nomination was in an election year.[9] McConnell has since reversed himself now that President Trump is also making an election year appointment because moral consistency is for suckers.

Number of justices[edit]

The Court in 1869, before it had a ninth seat added.

The US Constitution never did the greatest job of explaining how exactly the Court was supposed to work. For instance, the office of Chief Justice is only briefly referred to in the Trial of Impeachment Clause.[10] Most infamously, the Constitution chose not to set any hard number on the number of Associate Justices, instead leaving it up to Congress to decide and alter as they see fit.

Consequently, the size of the Court has changed over time and has naturally been manipulated for political purposes from the very beginning. The Court started with six seats, and John Adams tried to fuck over his successor Thomas Jefferson by having Congress reduce it to five.[11] Abraham Lincoln later increased the size of the Court, this time to ten seats, because he was justifiably pissed over the Dred Scott v. Sandford decision.[11] Congress in 1866 then reduced the Court to just six Justices in order to prevent President Andrew Johnson from appointing a new one.[2] Since 1869, though, the Court has remained consistent with only nine Justices, although Franklin Delano Roosevelt famously threatened to expand the body to 15 justices. The death of Ruth Bader Ginsburg in 2020 has caused many liberals and progressives to demand for the court size to be increased once again.

Leaving the bench[edit]

Justice Ginsburg lies in repose outside the SCOTUS building.

Supreme Court Justices are not covered by the Judicial Conduct and Disability Act of 1980 and may only be removed if impeached and convicted by Congress.[12] This has never happened, although multiple candidates for the 2020 Democratic Party presidential nomination called for Justice Kavanaugh to be impeached.[13] The last time the Senate heard an impeachment case against a sitting SCOTUS Justice was in 1804 when Thomas Jefferson tried to have staunch Federalist partisan Samuel Chase removed for talking shit about him.[14] Chase was acquitted.

Somewhat disturbingly, no mechanism yet exists for the removal of a Justice who is permanently incapacitated but unwilling to resign.[15]

Other than that, Justices serve on the bench until they either die or voluntarily resign. Some recent justices are notable for attempting to choose the nature of their departure based on political concerns. Some conspiracy theories still float around alleging that Anthony Kennedy's abrupt resignation was tied to his son's business relationship with Donald Trump.[16] Ruth Bader Ginsburg also battled against cancer and her increasingly ailing health in an attempt to outlast Donald Trump's presidency.[17] The Demography journal actually did the math and found that justices are 2.6 times more likely to retire when a ideologically compatible president is in office.[18]

Despite the irregularity of Supreme Court vacancies, almost all of the US presidents have been able to make at least one confirmed nomination to the body.[19] Jimmy Carter holds the distinction of being the only modern president to have not had an opportunity to place a justice on the Court, and he's the only president to have served a full term without having that opportunity. Such bad luck was typical of the poor man's presidency.

Procedures[edit]

Inscription on the Court building quoting Marbury v. Madison on judicial review.

Choosing cases[edit]

The Supreme Court typically only hears cases which it views as being nationally significant or in which there is conflict between different levels of the court system. The vast majority of cases the Court hears are appeals, where the parties petition the Court to issue a writ of certiorari. Granting cert means that the Court has chosen to hear the case, and it uses that doctrine to select cases at will and according to its own discretion.[20]

Cert is granted when at least four Associate Justices agree that a case should go before the Supreme Court.[21]

A very narrow number of cases fall under the Court's original jurisdiction, which is constitutionally defined as "all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party."[22] The number of original jurisdiction cases per term is pretty small. So small, in fact, that the Court usually passes pretrial activities onto a trusted surrogate, as the Court itself is very unsuited to doing anything save for hearing oral arguments and making opinions.[23]

Oral arguments[edit]

Justices Kagan and Kavanaugh during oral arguments for Franchise Tax Board of California v. Hyatt.

The Court's term begins on the first Monday of every October, and the Court typically goes to recess in early to mid-summer. From October to April the Court hears oral arguments, in which the two sides of each case has a half hour to lay out their reasoning to the nine justices.[24] Typically, though, the justices are uninterested in hearing the same arguments reheated and fought over. Instead, most of the time is simply spent on verbal examination, where the Justices ask questions of the attorneys based upon what they read from the case briefs.[24]

If the US government is involved in a case, then the Justice Department's Solicitor General serves as the government's attorney.[25] The Solicitor General typically has a very close relationship with the Court, and any requests for cert he makes are almost always granted.[26] Although rare, the Solicitor General can also butt in on cases in which the government is interested but not involved in order to lay out the government's arguments.[24]

Oral arguments are open to the public, but space is rather limited. For high-profile cases it's not unusual for people to wait for days to ensure that they get inside the building to be present at arguments.[27] Or, if you're rich like actor Rob Reiner, you can just pay someone else $6,000 bucks to hold your place in line on your behalf.[28]

Interior of the Court, showing where the Justices sit during proceedings.

In order to address the Court, however, attorneys need to join the Supreme Court Bar, the requirements for which are rather stringent.[29] There's also a $200 dollar fee required to even be considered, because of course there is.[30] That being said, Bar membership has other benefits like access to the SCOTUS law library, preferential seating during oral arguments, a chance to meet the Justices, and a fancy-ass big-dick certificate to hang in your office.[29]

Conferences[edit]

After oral arguments, the Court holds what's called a Justices' Conference to make the actual decision of the Court. The Justices' law clerks aren't allowed to participate, which makes it rather difficult for Justices to participate and follow along if they happened to nod off during proceedings.[31] However, they've usually discussed the case with their law clerks beforehand.

During the Conference, every Justice has an opportunity to have their say about the case, and speeches proceed in order of seniority.[32] Justices have typically decided how they're going to vote by this point. After everyone has talked, the Chief Justice casts the first vote, followed by everyone else in order of seniority. The majority forms the opinion of the Court, but a tied vote (which can happen in a vacancy) results in the lower court's decision standing.

It is possible for a Justice to make up their minds at this stage. Anthony Kennedy in 1992 nearly sided with Chief Justice William Rehnquist in the Planned Parenthood vs. Casey case to overturn the Roe decision, but he heard something during Conference that led him to abruptly change his mind.[33]

Opinions[edit]

Records of the Supreme Court preserved in a law library.
The first opinion the Court ever filed has a dissenting opinion. Dissent is a tradition of this Court
—Associate Justice William O. Douglas, 1973.[34]

After the Court's decision has occurred, then it must write out its reasoning for the public in documents called "opinions". If the Chief Justice is in the majority, he assigns someone to write the opinion, but if he's in the minority then the seniormost Associate in the majority gets to pick.[35] Justices can also choose to write concurrences or dissents. If a justice agrees with the majority decision but disagrees with the rationale behind it, then they write a concurrence. If they disagree vehemently, they can choose to write dissents. Due to serving on a usually conservative Court, Justice Ginsburg became famous for her many firmly-worded dissents.[36]

Interestingly, Justices still have the opportunity to switch their votes, as opinions do not become official until they are read publicly, typically on the last day of the Court's session. That's just in case a Justice is particularly swayed by the writings of one of their colleagues.

Membership[edit]

Current bench[edit]

Supreme Court Justices (October 2018 - September 2020). Front row (left to right): Stephen Breyer, Clarence Thomas, John Roberts (Chief Justice), Ruth Bader Ginsburg, and Samuel Alito. Back row (left to right): Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh.

Due to the Court's conservative majority, its decisions have been some of the most conservative in decades, and each of the last four Republican Presidents (Reagan, Bush, and Trump) appointed the men responsible for such decisions as Citizens United, the anti-union Janus, Bush v. Gore, Hobby Lobby vs. Burwell, Trump's Muslim Travel Ban, and the striking down of parts of the Voting Rights Act over the past 40 years.[37] By 2020, five of the six conservative Justices were appointed by presidents who did not win the popular vote, as Bush nominated Roberts and Alito, while Trump nominated Barrett, Gorsuch, and Kavanaugh, three of whom[38] worked for Bush's legal team during the infamous Bush v. Gore case in 2000. From 1980 through 2020, a span of 40 years, 11 of 15 justices were appointed by Republican presidents.[39]

Remarkably, Republicans from Eisenhower through George H.W. Bush had picked justices who turned out to be fairly moderate or downright liberal, such as Earl Warren, William Brennan, Henry Blackmun, and John Paul Stevens. Even firmly conservative Justices were not the partisans of the Roberts Court, as Kennedy and O'Connor became swing votes, while Warren Berger, Lewis Powell, and Potter Stewart ruled against Nixon over Watergate, and even Rehnquist pronounced the right to remain silent as a permanent feature of the criminal justice system. By the time Souter was nominated, and promptly turned out to be yet another surprise liberal, conservatives were so incensed that they made sure never to appoint "another Souter" ever again. Tellingly, they forced George W. Bush to not nominate Iraq War supporter, torture advocate, and waterboarding perpetrator Alberto Gonzales because Gonzalez was seen as too liberal on abortion and affirmative action.[40] [41]

The liberal Justices were appointed by the last two Democratic Presidents since 1980. Before Clinton and Obama, liberals had to rely on Republican-appointed moderates to uphold basic liberties and human rights, and they lucked out in having multiple outright liberals (or moderates-turned-liberals) accidentally nominated by Republicans. During Obama's presidency, his party had control of the Senate from 2009 until 2015, and while he appointed two justices of his own, there were calls for Clinton's justices (Breyer and Ginsburg) to retire early after serving nearly 20 years apiece. [42] President Obama himself even approached Ginsburg, heavily suggesting she should retire so he could appoint a younger replacement, but she refused.[43]

  • Amy Coney Barrett (the Coathanger, ACB, Waffle Coney): Appointed by President Donald Trump to replace Ruth Bader Ginsburg, she had her start as a member of George W. Bush's legal team against Al Gore in 2000; she is directly responsible, along with Gorsuch and Kavanaugh, for providing a legal fig leaf to get the Supreme Court to stop counting votes in Florida, handing the election to Bush. A devout Christian fundamentalist and a member of a faith-based group that employs handmaids, Barrett is the exact ideological foil to her predecessor, having clerked for Antonin Scalia whom she views as her ideological godfather. As only the fifth woman to ever be a Supreme Court Justice, "Coathanger" Barrett is personally opposed to abortion, sparking concerns that she would outlaw Roe v. Wade. She is also opposed to marriage equality, leading to fears she may also target Obergefell which enshrined gay marriage as the law of the land. Barrett was nominated by Trump to serve on the Seventh Circuit for the Court of Appeals and wrote numerous opinions outlining her extreme views. Many of her rulings and opinions are beyond extreme, verging on cruel. Two Yemenis, Zahoor Ahmed and Mohsin Yafai, fled their country during their country's civil war and famine crisis, and applied for visas, but the United States rejected their visas. Their children tragically drowned while their applications were pending, but the U.S. still denied their visas, because the consulate believed Yafai and Ahmed were "smuggling" their children in the country, so they took it to the courts. Barrett said it did not matter if the consulate's accusation had no evidence. It did not matter how much evidence Ahmed and Yafai showed proving they were not smugglers. It did not matter if Yafai and Ahmed fulfilled all legal and procedural requirements to seek residency in the United States. Barrett simply did not give a fuck and tossed out their case. Barrett wrote that because the consular officer had cited a statute (the anti-smuggling one) in denying the visa, the decision was “facially legitimate and bona fide,” and therefore would not be reviewed by the court. Her fellow judge, Kenneth Ripple, a Reagan judge, dissented, saying Barrett showed “no respect for the Constitution or Congress” because it meant that the government could simply arbitrarily deny visas to people fully legally qualified for them, who had gone through the correct process and done everything right. This is just one of many examples of Barrett proving herself to be one of the most extreme judges to have ever been put on the court. Mack Sims, a black man wrongfully accused of committing a crime despite no physical evidence pointing to it, was ruled a miscarriage of justice as the prosecution was found to have forced the accuser's testimony against Sims. Barrett, however, did not agree that it was a miscarriage of justice and simply deferred to the prosecution. She was the lone dissenter. In another case, a mentally ill man was shot to death by the cops, who provoked the man into a frenzy before killing him; Barrett said the cops were right to kill a mentally disabled man and provoke him into attacking them so they could shoot him dead. Three black Chicago men were falsely accused of a drive-by shooting by the police, again without evidence beyond simply being near the scene of the crime, and the cops themselves admitted they could not remember why they arrested those three black men. Barrett believed such stop and frisk-like behavior was "reasonable." Barrett ruled that Rafael Herrera-Garcia, who feared being tortured if he was deported, could not seek asylum even if he was tortured after being deported. Barrett wrote a 40-page dissent defending the Trump administration’s authority to "restrict legal immigration" by people expected to make “use of certain public benefits programs — including food stamps, Section 8 housing vouchers, and Medicaid.” She ruled in favor of allowing prison guards to shoot at inmates so long as the guards were "maintaining discipline" rather than out of personal enjoyment, incredibly difficult to prove. All of this was when she was merely a circuit judge. By October 26, 2020, she is now the ninth Supreme Court Justice, confirmed on mostly party lines a week before the 2020 election on November 3rd. [46]
  • Brett Kavanaugh ("I like beer" no nickname yet): Appointed by President Trump to replace Anthony Kennedy,[47] his confirmation hearing was delayed due to multiple accusations of sexual misconduct. Trump ordered a (hamstrung) FBI investigation.[48] Environmentalists and gun control activists are worried about his views on said issues.[44] It is, however, possible that Kavanaugh may not be the staunch anti-abortion crusader that the far-right hoped for. He recently joined the liberal justices in declining to hear the anti-Planned Parenthood cases Gee v. Planned Parenthood of Gulf Coast and Andersen v. Planned Parenthood of Kansas and Mid-Missouri.[49]
  • Clarence Thomas (the Stoic): A George H. W. Bush nominee, this Justice questioned Barack Obama's eligibility to be President.[50][note 1] He adheres rigidly to originalism, meaning the Constitution should be interpreted strictly as it was originally meant, with total disregard for precedence or prior rulings. He has not asked a single question for nine years and can be seen writing his own opinions before lawyers get to argue. He voted against a decision to overturn a California law banning the sale of violent video games to minors, arguing that the First Amendment does not reach that far.[44]
  • Elena Kagan (the Writer): As Obama's second appointee, Kagan is the first Justice in decades who has not previously served as a judge. Her writing is comprehensible to the layperson without sacrificing legal acceptability. She is an aggressive questioner.[44]
  • Neil Gorsuch (no nickname yet): Nominated by Donald Trump to replace the deceased Antonin Scalia. He was forced through after Mitch McConnell removed the filibuster for Supreme Court picks, a year after McConnell himself refused to give a hearing to Merrick Garland, Barack Obama's choice the year before. He cements the conservative majority, as can be seen from the Court's recent rulings on Trump's travel bans, gerrymandering and trade union fees.[44] He has accurate knowledge of Indian law and has consistently sided with Native Americans (and liberals) on Native American issues.[51]
  • Samuel Alito (the Prosecutor): This George W. Bush appointee is not always willing to stick rigidly to the freedom of speech in cases where said speech is hateful or harmful. However, he voted against an Illinois labor union case, arguing that workers do not have to pay dues to a labor union they do not support because such a requirement would be a violation of free speech. He does not ask many questions, but his questions are quite sharp, intended to unravel the logic of an argument.[44]
  • Sonia Sotomayor (the Public Justice): Sotomayor was both the first Hispanic person nominated to the Court and Barack Obama's first appointee. She is known for demystifying the Court and her experience with criminal trials. She cannot emphasize the importance of race in legal matters enough.[44]
  • Stephen Breyer (the Pragmatist): Another Clinton nominee, he has defended the Supreme Court's use of international law and is a stalwart advocate of abortion rights. Breyer has faith in government and he believes that the Court must take into account the history and context of the law.[44] He opposes the use of originalism when interpreting the law, which often places him in conflict with the staunch conservatives.[52] He has recently warned that overturning Roe v. Wade against 40 years of legal precedent would undermine the stability of the law.[53]

Notable former justices[edit]

  • Earl Warren: Once Attorney General of California, he pushed for Japanese American internment during World War 2, which he admits was his greatest regret. A Rockefeller Republican par excellence, he became Governor of California, and just like FDR, he implemented New Deal-style social democracy programs, which led to him becoming the only person to be California's governor for three straight terms. He was chosen to be Dewey's running mate against Truman, but they lost, and he ran for the nomination in 1952, only to lose to Dwight Eisenhower, who would later appoint him to be Chief Justice. Warren's Court made several rulings that struck down laws designed to suppress communists (thereby causing the decline of McCarthyism, struck down restrictions on access to birth control, established Miranda rights, made the right to privacy constitutional, applied the Bill of Rights to even local and state governments, upheld the Civil Rights Act of 1964, struck down anti-miscegenation laws, reversed a libel conviction against the New York Times, reversed the suspension of a black student who protested the Vietnam War, required equal populations for congressional districts (thus achieving "one man, one vote"), and most famously, ended segregation and Jim Crow laws. As a man who deeply feared Richard Nixon, he tried to retire under LBJ's presidency, but his chosen successor was forced to withdraw his candidacy for nomination due to conflicts of interest, and he ended up retiring under Nixon, something Warren would come to regret, as he would be replaced by the ironically named Warren Earl Berger, who opposed gay rights.
  • Thurgood Marshall: A lawyer for the NAACP who filed and won Brown v. Board of Education, he became the first African American justice on the Supreme Court, nominated by Lyndon B. Johnson. As former Solicitor General under John F. Kennedy, he bluntly said his philosophy was simple: "You do what you think is right and let the law catch up." He supported abortion rights, protected individual rights (including the rights of criminal suspects), ruled against instances of gender discrimination, and consistently opposed the death penalty throughout his entire life and career. He was loathed by conservatives who accused him of being an activist instead of a judge, while they themselves nominated conservative activists to serve as judges. He retired in 1991 due to ill health, and he died merely four days after Clinton was inaugurated. Marshall was replaced by Clarence Thomas, who has proven to be his exact opposite on every single issue.
  • Lewis Franklin Powell Jr.: He wrote the Powell Memorandum, officially called "Attack on the American Free Enterprise System," an anti-Communist and anti-New Deal blueprint that he made in response to Ralph Nader's exposing of the auto industry's lack of care for drivers' safety. Powell, incensed at Nader's audacity in caring about people over profits, feared pro-consumerism would undermine the power of private business and a step towards socialism. He was a corporate lawyer and director for the board of Phillip Morris, making him one of the fiercest supporters of the tobacco industry even when scientific evidence came showing the dangers of tobacco. Powell had the balls to argue tobacco companies' First Amendment rights were being infringed when news organizations were not giving credence to the cancer denials of the industry. His memorandum, which identified "college campus, the pulpit, the media, the intellectual and literary journals, the arts and sciences, and politicians" enemies of capital, Powell advocated "constant surveillance" of textbook and television content, as well as a purge of all left-wingers. He named consumer advocate Nader as the "chief antagonist of American business." Most of all, Powell called for business to stage a hostile takeover of the courts so they could rewrite the laws to benefit their profit. Among those directly influenced by his views were ALEC and the Heritage Foundation. He was then put on the Supreme Court by Richard Nixon. Powell was the deciding vote in two Supreme Court cases: Buckley v. Valeo, which identified political donations to campaigns as free speech, and National Bank of Boston v. Bellotti, which declared corporate financial influence of elections should be protected with the same vigor as individual political speech. Money in politics was Powell's lasting legacy overriding and overshadowing every other opinion in every other ruling he had ever done.[54]
  • William Rehnquist: Nominated by President Nixon, he was the most conservative of the Berger Court, almost always voting "with the prosecution in criminal cases, with business in antitrust cases, with employers in labor cases, and with the government in speech cases." Henry Kissinger and H.R. Haldeman, one of Nixon's advisors, thought Rehnquist was not only "pretty far right" (Kissinger's assessment) but "way to the right of Buchanan." He would later be nominated Chief Justice by Ronald Reagan after Berger left the court. He once invalidated a federal law extending minimum wage and maximum hours provisions to state and local government employees, saying "this exercise of congressional authority does not comport with the federal system of government embodied in the Constitution." Rehnquist supported segregation, outright saying "Plessy v. Ferguson was right and should be re-affirmed." He consistently defended prayer in schools. [55] He dissented against fair use, and ruled in favor of copyright holders and stronger copyright laws. He supported the view that the Fourth Amendment permitted a warrantless search incident to a valid arrest, which is not how that amendment works at all.[56] When the court ruled a federal agency administrator did have authority to take President Nixon's presidential papers and tape recordings, thereby proving his complicity in Watergate, Rehnquist supported Nixon and dissented with the court ruling, calling it "a clear violation of the constitutional principle of separation of powers." This means releasing evidence of the President's complicity in a crime and its coverup somehow violates the President's power as head of the executive branch and therefore is an overreach of the constitution. To the surprise of no one, Rehnquist also voted in favor of Bush over Gore, supported the death penalty, voted in favor of restricting prisoners' rights and criminal rights, and opposed abortion rights, dissenting in Roe v. Wade. Rehnquist served as Chief Justice for nearly 19 years (from 1986 to 2005), making him the fourth-longest-serving Chief Justice, and the eighth-longest-serving Justice (from 1972 to 2005). Upon his retirement, George W. Bush replaced him with John Roberts.
  • John Paul Stevens: A lifelong self-identified conservative and registered Republican, Stevens became associated more with the liberals of the court by the time of his retirement in 2010 due to the Supreme Court's utterly extreme rightward shift over the decades. He was the third-longest-serving justice in the history of the Supreme Court, nominated by President Gerald Ford, who expressed no regret in Stevens' drift towards liberalism.[57] A moderate, and one of the last Rockefeller Republicans, John Paul Stevens began as a standard conservative, as he opposed affirmative action, supported banning flag burning, upheld a principal's censorship of a student newspaper in 1988, rejected a challenge to Detroit ordinances barring adult theaters, and voted to reinstate the death penalty. Stevens also authored a 2005 ruling that allowed the federal government to arrest, prosecute, and imprison patients who use medical marijuana regardless of whether such use is legally permissible under state law, effectively criminalizing marijuana. But owing to his later drift towards liberalism, he struck down an Alabama clause mandating public prayer in schools, opposed displaying the Ten Commandments in the Texas Capitol, and ruled in favor of suing the EPA if it failed to regulate air pollutants like greenhouse gases. He joined the liberals again in ruling against New Jersey's hate crime statute, saying a judge increasing a sentence beyond its statutory maximum was unconstitutional. Stevens, once an impassioned opponent of affirmative action circa 1978 and 1980, later changed his mind, voting to uphold the affirmative action program at the University of Michigan Law School in 2003. He similarly changed his mind on censoring pornography, voting to strike down a federal law regulating online obscene content considered "harmful to minors." He admitted he still opposed pornography being exposed to children, but as a judge, could not in good conscience allow himself to rule in favor of any way that restricted freedom of speech. Despite his 1988 ruling in favor of a principal censoring a student newspaper, Stevens dissented against two court rulings that restricted students' freedom of speech in 1986 and 2007, generally supporting students' right to free speech in public schools. He held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay violated the Geneva Conventions and thus should not proceed. A 2008 landmark case, District of Columbia v. Heller, struck down certain firearms restrictions and held that the Second Amendment protects an individual's right to possess a firearm unconnected with service in a militia for traditionally lawful purposes, such as self-defense within the home; Stevens rejected this idea and ruled with the liberals against it. Years following his retirement, after the infamous Parkland massacre, Stevens wrote an essay demanding the outright repeal of the Second Amendment, saying it is "a relic of the 18th century."[58] He vehemently opposed Citizens United, which he called "a disaster for our election law," and voted against Bush in the infamous Bush v. Gore ruling, calling it an outright partisan and wholly biased court decision in his scathing dissent. Stevens retired in 2010 and Barack Obama replaced him with Elena Kagan.
  • Sandra Day O'Connor: The first woman ever confirmed to the Supreme Court, she was nominated by Ronald Reagan and served as a moderate on many issues, essentially playing the swing vote role that Anthony Kennedy would become known for. Her most notable vote was in Bush v. Gore, where she ruled in favor of Bush but said it should not be used as precedent for any future elections. After retiring to take care of her ailing husband, O'Connor admitted it was her greatest mistake and easily her most shameful ruling of her career.
  • David Souter: Nominated by George H.W. Bush, everyone expected him to be firmly right wing, to the point where White House Chief of Staff John Sununu assured Bush that Souter was a "home run" for right wingers [59] The National Organization for Women protested his nomination and held a rally outside the Senate during his confirmation hearings, with its president arguing Souter would "end freedom [to choose to abort] for women in the country," because they were so convinced he was going to be another radical wingnut.[60] The NAACP, denouncing Souter's earlier statements on race, urged its 500,000 members to write letters to their senators asking them to oppose the nomination.[61] However, Souter intentionally provided a very thin "paper trail" and refused to provoke any controversy at all before he was ever nominated, because he saw how Robert Bork's outspoken opinions cost him a seat on the court.[62] Bush admitted he did not know Souter's stances on abortion, affirmative action, and other issues, and simply deferred to Sununu's judgment.[63] Souter decidedly moved to the left after Thomas' nomination.[64] He often sided with John Paul Stevens and proved to be more liberal than even Breyer and Ginsburg at times. [65] He ruled in favor of Planned Parenthood and argued against overturning Roe v. Wade in any way. He ruled with the liberals in school prayer and affirmative action, and although he supported Casey's restrictions on abortion access, he still affirmed the right to abortion and refused to overturn Roe in any way. He even voted against Citizens United. He dissented in Bush v. Gore, to the point of seriously considering resigning in protest of the court's authoritarian decision to stop ballot-counting and allow Bush to be anointed president over Gore. When Barack Obama became president, Souter took the opportunity to retire and was thereafter replaced by Sonia Sotomayor.
  • Antonin Scalia: Nominated by Ronald Reagan, he was one of the most conservative justices on the court, as a major cultural warrior, devout Christian fundamentalist, brazen racist, and supporter of authoritarianism, having ruled in favor of Bush over Gore in a blatant violation of democracy in 2000. He died in office in 2016, which allowed President Obama to nominate Merrick Garland, but Senate Majority Leader Mitch McConnell refused to hold a hearing, effectively blocking Garland from the court in an unprecedented move by Republicans. Scalia was replaced by Neil Gorsuch instead.
  • Anthony Kennedy (the Dignifier): Nominated by Ronald Reagan, octogenarian Kennedy not of the same political streak as John F. Kennedy and his clan. As to be the court's swing vote, Kennedy reliably votes with the conservatives on economic matters,[66] but he has a well-noted emphasis on "human dignity" that largely explains his votes with liberals on social issues like gay marriage. In fact, he argued that the Defense of Marriage Act is unconstitutional as it discriminates against same-sex couples and their children.[44] Incidentally, should he vote with the liberals (with no other partisan justices defecting), he chooses who will write the majority opinion, as he is senior to all those in the liberal wing.[note 2] He retired on July 31st, 2018.[67]
  • Ruth Bader Ginsburg (the Notorious RBG): The oldest liberal Justice before her death, she was a Bill Clinton appointee, the second woman Justice ever, the first Jewish Justice, and the last civil rights lawyer on the Court. She often wrote dissents in politically charged cases. She voted against Burwell v Hobby Lobby, writing that religious exemption to Obamacare should not be extended to "closely held" for-profit corporations.[44] Died on September 18, 2020 after a long battle with cancer, prompting many to grieve and despair, having lost her battle to pancreatic cancer while Donald Trump was still President.[68]

Comparison of the Justices[edit]

Recently appointed Justices tend to vote together. Sonia Sotomayor and Elena Kagan have agreed 94% of the time while Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. have agreed 93% of the time. However, this trend falters for Justices who have been on the Court for longer. Ruth Bader Ginsburg and Stephen G. Breyer, nominated by Bill Clinton, agree only 88% of the time. For Antonin Scalia and Anthony M. Kennedy, Ronald Reagan's candidates, that number is 82%.[69]

Before becoming an Associate Justice, Brett Kavanaugh saw the positions advanced in his opinions adopted by the Supreme Court thirteen times and reversed only once.[70] His views on union issues are similar to those held John Roberts, Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch.[71]

In their public appearances, the Justices stress that while the press tend to focus on narrowly divided (and controversial) cases rather than the ones in which the court voted unanimously or nearly unanimously. In fact, the Court is often united.[69] Most Justices work to paint the Court as a nonpartisan, apolitical, and fair institution, rather than an extension of the polarized political environment.[72] The lowest rate of agreement is between Justices Ginsburg and Thomas, at 62%.[73]

Other supreme courts[edit]

Of the US states, 48 have a single court of last resort (called the Court of Appeals in Maryland and New York, the Supreme Judicial Court in Maine and Massachusetts, and the Supreme Court elsewhere). Oklahoma and Texas each have two courts of last resort, a Supreme Court for civil matters and a Court of Criminal Appeals for criminal matters. A state supreme court's interpretation of its state constitution and its state statutory and common law is final and is binding on both lower state courts and all federal courts, including (at least in theory) the Supreme Court of the United States. Federal courts may still adjudicate whether a state's constitution and laws conflict with the U.S. Constitution or federal law.

See also[edit]

External links[edit]

Notes[edit]

  1. Thomas referred a procedural motion in such a case to the full court for consideration (which the court denied without recorded dissent), rather than Thomas just denying or granting the motion on his own authority. The case did not question Obama’s U.S. citizenship, but rather asserted that his previous secondary British (or Kenyan) dual citizenship disqualified him from being president. At no point did Thomas express agreement with the lawsuit’s assertions, although Thomas often expresses extreme positions with which no other Justice agrees.
  2. Sometimes Chief Justice Roberts rules with the liberal wing, as seen in King v. Burwell (2015), meaning he writes (or chooses who writes) the ruling. In any case, the opinion still has to be approved by a majority of justices to become the opinion of the court.

References[edit]

  1. NCCU School of Law Students Release Statement on the Passing of Supreme Court Justice Ruth Bader Ginsburg. NCCU School of Law.
  2. 2.0 2.1 2.2 2.3 Supreme Court of the United States. Encyclopedia Britannica. Updated January 23, 2019. Accessed January 27, 2019.
  3. Nebraska and Oklahoma Sue to Overturn Legal Weed in Colorado, Mother Jones. December 2014.
  4. Supreme Court Procedures. "Writs of Certiorari". United States Courts.
  5. Trump Supreme Court pick: Why is the US top court so important?. BBC News. July 9th, 2018.
  6. See the Wikipedia article on Appointments Clause.
  7. 7.0 7.1 Nominations: A Historical Overview. United States Senate.
  8. 6 Supreme Court nominees who faced controversy. CNN.
  9. Who’s a hypocrite? GOP, Dems debate past comments on court. Associated Press.
  10. See the Wikipedia article on Article One of the United States Constitution § Clause 6: Trial of Impeachment.
  11. 11.0 11.1 Why the Supreme Court ended up with nine justices—and how that could change. National Geographic.
  12. Complaints against Brett Kavanaugh dismissed by federal judicial council. CNN. December 18, 2018.
  13. New Calls To Impeach Justice Kavanaugh: How It Would Work And Why It Likely Won't. NPR.
  14. Senate Prepares for Impeachment Trial. United States Senate.
  15. Anticipating the Incapacitated Justice. Huffington Post.
  16. Did Anthony Kennedy Resign from the Supreme Court to Protect His Son? Snopes.
  17. RBG’s Dying Words: “My Most Fervent Wish Is That I Not Be Replaced Until a New President Is Installed”. Slate.
  18. Stolzenberg, Ross M.; Lindgren, James (May 2010). "Retirement and Death in Office of U.S. Supreme Court Justices". Demography. 47 (2): 269–298. doi:10.1353/dem.0.0100. PMC 3000028. PMID 20608097.
  19. See the Wikipedia article on List of nominations to the Supreme Court of the United States.
  20. Writ of certiorari. Cornell Legal Information Institute.
  21. Certiorari. Cornell Legal Information Institute.
  22. See the Wikipedia article on Original jurisdiction of the Supreme Court of the United States.
  23. Hatton, David; Wexler, Jay (2012). "The First Ever (Maybe) Original Jurisdiction Standings". Journal of Legal Metrics. 1: 19, 21.
  24. 24.0 24.1 24.2 Supreme Court Procedures. "Oral Arguments." US Courts.
  25. See the Wikipedia article on Solicitor General of the United States.
  26. Thompson, David C.; Wachtell, Melanie F. (2009). "An Empirical Analysis of Supreme Court Certiorari Petition Procedures". George Mason University Law Review. 16 (2): 237, 275. SSRN 1377522.
  27. Courtroom access: Dreaming of a spot in the courtroom. SCOTUSBlog.
  28. Rob Reiner Paid Someone $6K to Stand in Line for Him at the Supreme Court for Prop 8 Hearing. LAist.
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  33. Justice Blackmun's Papers Reveal Near Overturn of Roe. Catholic News Service. Archived.
  34. William O. Douglas. Wikiquote.
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  36. Justice Ruth Bader Ginsburg's top opinions and dissents, from VMI to Voting Rights Act. USA Today.
  37. Court Under Roberts is Most Conservative in Decades, The New York Times
  38. Roberts, Kavanaugh, and Barrett.
  39. Ronald Reagan nominated O'Connor, Scalia, and Kennedy while appointing Rehnquist, Nixon's justice, as Chief Justice. Both Bushes nominated two justices apiece: David Souter and Clarence Thomas from George H.W. Bush, with Roberts and Alito by George W. Bush. Donald Trump installed Gorsuch, Kavanaugh, and Barrett in three of his four years as President. Clinton and Obama, by contrast, only had four total justices: Ginsburg and Breyer from Clinton, Sotomayor and Kagan by Obama. Merrick Garland was Obama's third nominee, who would have been Scalia's replacement, but he was blocked from even getting a hearing and his spot was instead filled by Neil Gorsuch.
  40. Greenburg, Jan Crawford (2007). Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court.
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  52. Stephen G. Breyer Oyez
  53. Supreme Court's Breyer, mentioning abortion case, warns about overturning precedent By Pete Williams. NBC News. May 13, 2019.
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  70. Influential Judge, Loyal Friend, Conservative Warrior — and D.C. Insider. The New York Times. July 14, 2018.
  71. Why should you watch Brett Kavanaugh’s confirmation hearings? Here’s where he stands on key issues. PBS NewsHour. September 3, 2018.
  72. Supreme Court Ducks Effort To Defund Planned Parenthood. NPR. December 10, 2018.
  73. Gorsuch Confirmed. Interactive Graphics. Associated Press. Accessed January 27, 2019.