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Supreme Court of the United States
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The Supreme Court of the United States (SCOTUS) consists of judges appointed for life who decide on whether or not local, state, or federal laws comply with the United States Constitution and is the final court of appeals. Supreme Court Justices exercise the power of judicial review, meaning they can uphold or strike down a law, in full or in part, as unconstitutional. This power is not explicitly mentioned in the Constitution, but was established in the 1803 case Marbury v. Madison. Most legal scholars today accept that judicial review is a proper power of the Court.
Although the Court's original jurisdiction is being a trial court, the majority of its most influential decisions come from its function as an appellate court. The Supreme Court also hears lawsuits between the U.S. states, as with the suit by Nebraska and Oklahoma against Colorado's legalization of marijuana in 2014.
SCOTUS hears no more than 100 cases a year. Cases may be brought to the Court after they are appealed from a series of lower courts. In special cases, lawyers can petition for a hearing. The Court's opinions can also create precedents, directing other judges to follow their interpretation in similar cases. On occasion, the Supreme Court may revisit an issue in a new case and and issue a different ruling. Key issues dealt with by the Court in recent years include same-sex marriage, gerrymandering, trade-union fees, and Trump's travel bans.
The members, known as Associate Justices, are appointed by the President, and take office upon confirmation by the Senate. The size of the Court has changed over time and has been manipulated for political purposes. For example, Congress in 1866 reduced the Court to just six Justices in order to prevent President Andrew Johnson from appointing a new one. The last time the Senate voted not to confirm an appointment to the Supreme Court was in 1987 with Robert Bork. Since justices are appointed for life, appointments can become the most lasting legacy of a President. 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, but the latter has never happened.
One member, appointed the same way as the other Justices, serves as Chief Justice. Although still only having one vote on cases, the Chief Justice has the power to assign the writing of majority decisions when they are in the majority to one of the associates. If he or she is in the minority, the most senior Justice of the majority shall write the official decision. Opinion drafts circulate among the Justices, who may dissent in full or in part. The final decision serves as precedent and constitutional doctrine, governing the inferior courts.
In practice, the most powerful member of the Court is rarely the Chief Justice, but the one or two "moderate" members who are very often the swing voters on contentious issues. Anthony Kennedy is a recent example of such a judge. (See below.)
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. The liberal Justices were appointed by the last two Democratic Presidents since 1980 (Clinton and Obama). During Obama's first two years with a Democratic Congress, there were calls for the two remaining Clinton appointees to retire in 2010, in order for Obama to appoint younger replacements. However, this did not happen, giving Donald Trump the chance to appoint at least two justices.
- John Roberts (Chief Justice): A George W. Bush appointee, Chief Justice Roberts has opposed the Endangered Species Act, and has been criticized for heading an "activist court"; the Citizens United v. Federal Election Commission, Burwell v. Hobby Lobby, Gonzales v. Carhart, and are commonly cited examples. He voted against Shelby County v. Holder, which requires certain states to gain permission of the Department of Justice before changing their voting laws, arguing that it imposes burdens unjustified by current needs. On the other hand, he helped shoot down a major legal challenge to Obamacare. He looks to maintain civility in the Court during oral arguments. Roberts, who characteristically avoids getting involved in political discourse, went out of his way to defend the independence of the judiciary against verbal attacks by Donald Trump.
- Brett Kavanaugh (
"I like beer"no nickname yet): Appointed by President Donald Trump to replace Anthony Kennedy, his confirmation hearing was delayed due to multiple accusations of sexual misconduct. Trump ordered a (hamstrung) FBI investigation. Environmentalists and gun control activists are worried about his views on said issues. 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.
- Clarence Thomas (the Stoic): A George H. W. Bush nominee, this Justice questioned Barack Obama's eligibility to be President.[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.
- 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.
- 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. He has accurate knowledge of Indian law and has consistently sided with Native Americans (and liberals) on Native American issues.
- 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.
- 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.
- 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. He opposes the use of originalism when interpreting the law, which often places him in conflict with the staunch conservatives. He has recently warned that overturning Roe v. Wade against 40 years of legal precedent would undermine the stability of the law.
Recent former justices
- 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, 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. 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.
- Ruth Bader Ginsburg (the Notorious RBG): The oldest liberal Justice before her death, she was a Clinton appointee and was 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. Died on September 18, 2020 after a long battle with cancer.
Comparison of the Justices
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%.
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. His views on union issues are similar to those held John Roberts, Clarence Thomas, Samuel Alito Jr., and Neil Gorsuch.
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. Most Justices work to paint the Court as a nonpartisan, apolitical, and fair institution, rather than an extension of the polarized political environment. The lowest rate of agreement is between Justices Ginsburg and Thomas, at 62%.
Other supreme courts
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.
- Supreme Court of the United States. Official website.
- SCOTUSblog Blog written by legal and constitutional experts.
- 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.
- 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.
- Supreme Court of the United States. Encyclopedia Britannica. Updated January 23, 2019. Accessed January 27, 2019.
- Nebraska and Oklahoma Sue to Overturn Legal Weed in Colorado, Mother Jones. December 2014.
- Trump Supreme Court pick: Why is the US top court so important?. BBC News. July 9th, 2018.
- Complaints against Brett Kavanaugh dismissed by federal judicial council. CNN. December 18, 2018.
- Court Under Roberts is Most Conservative in Decades, The New York Times
- Supreme Court Justice Kennedy: Who are the nine justices? BBC News Magazine. October 8, 2018.
- Roberts, Trump spar in extraordinary scrap over judges. Associated Press. November 21, 2018.
- Brett Kavanaugh Is Trump’s Pick for Supreme Court Mark Landler and Maggie Haberman. New York Times. 07.09.18
- Brett Kavanaugh: Trump's Supreme Court pick faces FBI inquiry. BBC News. September 29, 2018.
- The Supreme Court’s surprising decision on Planned Parenthood, explained By Anna North. Vox. Dec 10, 2018.
- Supreme Court Rejects Appeal Over Obama's Citizenship, The New York Times
- Mark Joseph Stern (May 20, 2019): "Why Gorsuch Keeps Joining the Liberals to Affirm Tribal Rights" (Salon).
- Stephen G. Breyer Oyez
- Supreme Court's Breyer, mentioning abortion case, warns about overturning precedent By Pete Williams. NBC News. May 13, 2019.
- Which Supreme Court Justices Vote Together Most and Least Often, The New York Times
- Supreme Court Justice Anthony Kennedy Retires. CNN. June 28th, 2018.
- Justice Ruth Bader Ginsburg, Champion Of Gender Equality, Dies At 87. NPR. September 18th, 2020.
- Which Supreme Court Justices Vote Together Most and Least Often. The New York Times. July 3, 2014. Archived link.
- Influential Judge, Loyal Friend, Conservative Warrior — and D.C. Insider. The New York Times. July 14, 2018.
- Why should you watch Brett Kavanaugh’s confirmation hearings? Here’s where he stands on key issues. PBS NewsHour. September 3, 2018.
- Supreme Court Ducks Effort To Defund Planned Parenthood. NPR. December 10, 2018.
- Gorsuch Confirmed. Interactive Graphics. Associated Press. Accessed January 27, 2019.